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A 

SELECTION 


OP 


LEADING    CASES, 

ON 

VAKIOUS    BRANCHES    OF    THE    LAW: 


BY 

JOHN  WILLIAM  SMITH,  ESQ., 

OF   THE   INNER   TEMPLE,   BARRISTER-AT-LAW. 


"  It  is  ever  good  to  relie  upon  the  book  at  large  ;  for  many  times  Compendia  sunt  disi)cndia  and  melius 
est  pcterc  fontes  quam  scctari  rivulos.'^ — I   Inst.  305,  1. 


FROM  THE   THIRD  ENGLISH  EDITION, 

BY 

HENRY  SINGER  KEATING  AND  JAMES  SHAW  WILLES,  ESQRS., 

OF  THE    INNER  TEMPLE,  BARRISTERS-AT-LAW. 


jFourtU  ^mtvitan  SUitCon, 

WITH  ADDITIONAL  NOTES,  AND  REFERENCES  TO  AMERICAN   DECISIONS, 

BY 

J.  I.  CLARK  HARE,  and  H.  B.  WALLACE. 

IN  TWO  VOLUMES.— VOL.  I. 


PHILADELPHIA: 

T.    &    J.    VV.    JOHNSON,    LAW    BOOKSELLERS, 

No.    197   CUES  NUT    STREET 

1852. 


Entered  according  to  Act  of  Congress,  in  the  year  1844,  by 

JOHN   S.    LITTELL, 

In  tlie  Clerk's  Office  of  the  District  Court  for  the  Eastern  District  of  Pennsylvania. 


Entered  according  to  the  Act  of  Congress,  in  the  year  1847,  by 
T.  &  J.W.JOHNSON, 
In  the  Clerk's  Office  of  the   District  Court,  for  the  Eastern  District  of  Pennsylvania. 


Entered  according  to  the  Act  of  Congress,  in  the  year  1852,  by 

J.  I.  CLARK   HARE,  and  H.   B.   WALLACE, 

In  the  Clerk's  Office  of  the  District  Court,  for  the  Eastern   District  of  Pennsylvania. 


T 


KITE    &    WALTON,   PRINTERS. 


TO 

RICHARD  GRAINGER  BLICK,  ESQ. 
EMU  S3^orlt  ts  tuscrttietJ, 

BY  HIS  OBLIGED  FRIEND  AND  FORMER  PUPIL. 


y^j 


PEEFACE 

TO   THE    FOURTH   AMERICAN    EDITION. 


The  present  edition  of  "Smith's  Leading  Cases"  is  reprinted  from 
tbe  last  London  edition,  which  was  carefully  revised,  after  Mr.  Smith's 
death,  by  Messrs.  Keating  and  Willes.  References  to  the  English  Cases, 
in  points  decide(^ince  their  edition,  have  been  added. 

The  American  Notes  have  been  amended  and  improved  by  an  elaborate 
revision;  and  the  American  Cases,  up  to  the  time  of  the  work's  going  to 
press,  have  been  incorporated. 

The  present  publication  is  believed  to  exhibit,  with  fulness  and  correct- 
ness, the  actual  state  of  the  law,  as  displayed  in  the  adjudged  cases  of  both 
countries,  upon  the  points  discussed. 

Philadelphia  J  May,  1852. 


r  R  E  P  A  C  E 

TO   THE   SECOND  ENGLISH   EDITION. 


When  tliis  work  was  first  published,  it  was  hoped  that  it  would  be  found 
to  supply,  in  some  degree,  a  want  which  was  believed  to  have  been  felt, 
although  on  different  occasions,  both  by  the  student  and  the  lawyer  occu- 
pied in  actual  practice. 

The  student,  when  he  devotes  himself  to  the  perusal  of  Law,  is  fre- 
quently advised  by  experienced  friends,  that  he  ought  early  to  habituate 
himself  to  the  perusal  of  Keports  at  large,  instead  of  pinning  his  faith  upon 
the  commentaries  and  abridgments  of  the  treatise  writers — "  Melius  est" 
says  Lord  Coke,  <■'■  ■peter e  fontcs  qiiain  sectari  rivulos" — When,  however,  he 
attempts  to  follow  this  advice,  he  finds  himself  astray  amid  the  masses  of 
accumulated  lore  which  the  Reports  present  to  him,  the  "  aliarum  super 
alias  acerv alarum  legum  cumuli:"  he  feels  his  judgment  perplexed,  his 
choice  distracted,  and  his  immediate  wish  is,  that  some  guide  would  direct 
him  to  the  leading  cases,  embodied  in  which  he  might  discover  those  great 
principles  of  Law  of  which  it  is  necessary  that  he  should  render  himself 
thorough  master,  before  he  can  trace  with  accuracy  the  numerous  ramifica- 
tions into  which  those  principles  are  expanded  in  the  surrounding  multi- 
tude of  decisions. 

The  lawyer  engaged  in  actual  business  frequently  also  feels  the  want  of 
a  portable  collection  of  leading  cases,  but  for  a  different  reason.  The 
leading  cases  are  those  with  the  names  of  which  he  is  most  familiar,  which 
he  has  most  frequently  occasion  to  consult,  and  which,  consequently,  he 
would,  if  it  were  practicable,  willingly  carry  into  court  or  round  the  circuit 
with  him. 

It  was  therefore  thought  that  this  collection  might  prove  of  some  utility 
to  both  the  classes  of  Readers  just  described.  The  cases  it  contains  may 
all,  it  is  believed,  be  properly  denominated  "  leading  cases,"  Each  in- 
volves, and  is  usually  cited  to  establish,  some  point  or  principle  of  real 
practical  importance.  In  order  that  the  consequences  of  each  may  be 
understood,  and  its  authority  estimated  as  easily  as  possible,  notes  have  been 
subjoined,  in  which  are  collected  subsequent  decisions  bearing  on  the  points 
reported  in  the  text,  and  in  which  doctrines  having  some  obvious  connexion 
with  them  are  occasionally  discussed.  This,  though  of  course  the  least 
valuable  part  of  the  work,  has  cost  its  author  by  far  the  greatest  labour 
and  anxiety;  care  has  been  taken  in  executing  it  not  to  allow  the  notes  to 
digress  so  far  from  the  subject-matter  of  the  text,  as  to  distract  the  reader's 


VIU  PREFACE. 

mind  from  that  to  which  they  ought  to  be  subsidiary.  In  perusing  them, 
it  will  be  found  that  the  facts  of  some  cases  cited  are  set  forth  at  consider- 
able length,  and  portions  of  the  judgments  transcribed  verbatim.  This  is 
done  only  when  the  case  cited  is  itself  of  such  importance  as  to  merit  the 
appellation  of  a  leading  case,  with  an  abridgment  of  which  the  reader  is  thus 
furnished,  where  it  could  not,  consistently  with  the  plan  of  the  work,  be 
presented  to  him  entire.  As  to  the  references  in  the  margin,  they  arc  in 
some  instances  taken  from  previous  editions  of  the  same  case ;  for  others, 
the  present  editor  is  responsible  :  the  former  arc  connected  with  the  text 
by  letters,  the  latter  by  the  sign  f . 

In  this  second  edition,  the  paging  of  the  former  one  has  been  preserved. 
This  has  been  done  because  some  gentlemen  had,  in  works  of  much  greater 
value,  done  this  the  honour  of  referring  to  it;  and  it  was  thought  desirable 
that  those  references  should  be  applicable  to  this  edition  as  well  as  the 
former.  The  place  where  a  page  in  the  former  edition  terminated  and  a 
new  one  commenced,  is  shown  by  the  sign  *  in  the  text,  and  the  correspond- 
ing sign  *  at  the  top  of  the  page.  Thus  the  first  page  of  the  former  edition 
terminated  at  the  word  resolved,  and  the  second  page  began  with  the  figure 
1,  at  which  there  is  now  an  *  in  the  second  page  of  this  edition. 

J.  W.  S. 
12,  King  Bench  Walk, 
Feb.  28,  1841. 


ALYEETISEMENT 

TO   THE    THIRD   ENGLISH   EDITION. 


The  Editors  in  preparing  this  edition  for  the  press,  have  endeavoured  to 
preserve  the  original  work ;  and  with  very  few  exceptions,  all  the  contents 
of  the  edition  will  be  found  in  this. 

The  new  matter,  compiled  in  part  from  manuscript  notes  of  the  Author, 
is  between  brackets. 

The  paging  of  the  former  editions  has  been  retained  :  in  many  instances, 
however,  for  facility  of  reference,  letters  have  been  added  to  the  numbers 
of  the  pages. 

Readers  are  requested  to  make  the  corrections  mentioned  at  the  end  of 
the  Index  of  Cases  in  each  volume. 

Inner  Temple, 
November,  1848. 


LIST  OF  CASES  E.EPORTED 


IN  VOLUiME  FIRST. 


The  pages  referred  to,  are  those  between  brackets  [  ]. 


Armory  v.  Delamirie 
Ashby  V.  White 
AsUn  V.  Parkin 
Auriol  V.  Mills 
Birkmyr  v.  Darnell 
Bristow  V.  Wright 
Calye's  Case     . 
Carter  v.  Boehm 
Chandelor  v.  Lopus 
Coggs  V.  Bernard 
Collins  V.  Blantern 
Cooper  V.  Chitty 
Crepps  V.  Burden 
Crogate's  Case 
Cumber  v.  Wane 
Dumpor's  Case 
Keech  v.  Hall 
Lampleigh  v.  Brathwait 
Lickbarrow  v.  Mason 
Mason  v.  Lickbarrow 
Master  v.  Miller 
Miller  v.  Race 
Mills  T.  Auriol 
Mitchell  V.  Reynolds 
Moss  V.  Gallimore 
Mostyn  v.  Fabrigas 
Omichund  v.  Barker 


151 
105 
264 
448 
134 
324 

47 
270 

77 

82 
155 
220 
378 

53 
146 

15 
293 

67 
388 
402 
458 
250 
436 
171 
310 
340 
105 


LIST    OP    CASES    REPORTED. 


Peter  v.  Compton 
Price  V.  Earl  of  Torrington 
Rice  V.  SLute 
Eobinson  v.  Raley 
Rushton  V.  Aspinall 
Scott  V.  Sheplierd 
Semaync's  Case 
Six  Carpenters'  Case 
Simpson  v.  Hartopp 
Spencer's  Case 
Trueman  v.  Fenton 
Twyne's  Case 
Waugh  V.  Carver 
"Whitcomb  v.  Whiting     , 
Wigglcsworth  v.  Dallison 


^143 

.  139 

287 

.  240 

334 

.  210 

39 

.   62 

187 

.   22 

368 

1 

491 

.  318 

299 

INDEX 


THE  NAMES   OF  CASES  CITED 


IN   VOLUME   ONE. 


The  pages  referred  to  are  those  between  brackets  [ 


Abbot  V.  Smith,  71  b,  291 
Abercrombie  v.  Hickman,  457 
Acton  V.  Blundell,  131  d 
Adams  v.  Grane,  192 

V.  Tapling,  148 

V.  Wordly,  309 

Adamson  v.  Jervis,  71  b 

Addison  v.  Overend,  292 

Aga  Kurboolie  Mahomed  v.  The  Queen, 

45,  46  a 
Ahitbol  V,  Beneditto,  332  c 
Aitkenhead  v.  Blades,  65 
Alchin  V.  Hopkins,  150 
Alchorne  v.  Gomme,  316 
Alder  v.  Chipp,  248 
Alderson  v.  Langdale,  490  a 

— . V.  Pope,  507,  508 

Aldridge   v.  Great   Western    Railway, 
131  (Z 

V.  Haines,  886  a 

Alexander  v.  Bonnin,  323 

V.  Vane,  70  c 

Alivon  V.  Furnival,  367    • 
Allan  V.  Bennett,  136  c 
Allen  V.  Gripper,  433  c 

V.  Milner,  146 

V.  Pink,  78 

Allies  V.  Probyn,  150 
Alner  v.  George,  148 
Alsop  V.  Bowtfell,  204 
Anderson  v.  Chapman,  332  a 

V.  Pitcher,  309 

Andrews  v.  Hancock,  75,  76 
Andrews  v.  Marris,  219  b 


V.  Pearce,  38^ 


x'\nscombs  v.  Shore,  65 
Aphary  v.  Bodingham,  13 
Appleton  V.  Lord  Braybrooke,  36S  6 
Arboin  v.  Anderson,  263  b 
Archer  v.  Bank  of  England,  259 
V.  Marsh,  183 


Arkwright  v.  Cantrell,  169 
Arnell  v.  Wetherby,  248 
Arnsby  v.  Woodward,  19 
Ashby  V.  James,  321  a 
Ashcrofl  V.  Bourne,  386  a 
Ashley  v.  Harrison,  132  b 
V.  Killick,  376 


Ashlin  V.  White,  79 
Aslin  V.  Parkin,  267,  268,  269 
Astley  V.  Reynolds,  147 
Aston  V.  Heaven,  101 
Atkins  V,  Banwell,  70  a 
V.  Tredgold,  319,  320  a 


Atkinson  v.  Hawdon,  890 

V.  Malings,  11 

V.  Raleigh,  328,  331  c 

V.  Warne,  60 

Atlee  V.  Backhouse,  149 
Attorney-General  v.  Bowens,  258,  261 

V.  Dimond,  267 

V.  Hope,  261 

V.  Poulden,  186 


Atwood  V.  Small,  79 
Ault  V.  Goodrich,  320 
Aveline  v.  Whisson,  137 
Avery  v.  Hoole,  338 
Aylett  V.  James,  441 


xn 


CASES     CITED     IN    VOL.     I. 


Ayrcs  v.  Wilson,  248 

IJackliouso  V.  Harrison,  263 
Haden  v.  Flio^Iit,  247  c 
Baggett  V.  JMeiix,  184 
Bagshaw  v.  Goward,  65 
Bailey  v.  Appleyard,  333  a 

V.  Bunning,  224,  239 

Bain  v.  De  Vetrie,  355 
Baker  v.  Gostling,  38  A 

V.  Greenhill,  73 

V.  Harris,  70  c,  73 

V.  Neave,  292 

V.  Payne,  303 

Ball  V.  Bamford,  14 

Bally  V.  Wells,  3S 

Balme  v,  Hutton,  238,  239 

Bamford  v.  Baron,  10 

Bane  v.  Bethuen,  387 

Bank  of  England  v.  Anderson,  123 

Banks  v.  Parker,  59 

Bannister  v.  Trussell,  443 

Barclay  v.  Raine,  34,  35 

Bardons  v.  Selby,  55 

Barfoot  v.  Goodall,  505 

Barker  v.  Darner,  365 

V.  Green,  131 

V.  Weedon,  324 

Barnard  v.  Godscall,  30 
Barnadiston  v.  Copeland,  372,  375 

V.  Soame,  110 

Barnes  v.  Hunt,  59  c 

V.  Price,  53 

Barrett  v.  Price,  40  c 

V.  Rolph,  38A 

Barrow  v.  Coles,  434  a 

V.  Wood,  177 

Barry  v.  Arnaud,  105 

V.  Nesham,  506 

V.  Robinson,  183  d 

Bartlett  v.  Pentland,  308 

V.  Vinor,  166 

Basan  v.  Arnold,  59  a 
Basten  v.  Carevv,  385  a,  387  b,  e 
Batcheleur  v.  Gage,  30 
Bateman  v.  Phillips,  137 

—  V.  Pindar,  321  a 

Bates  V.  Pilling,  218 
Batson  v.  Donovan,  101, 102 
Battersbee  v.  Farrington,  13 
Battersey's  Case,  72 
Baxendale  v.  Sharp,  339 
Bayley  v.  Ashton,  321  b 

V.  Homan,  150 

Bayliffe  v.  Butterworlh,  303 
Baylis  v.  Strickland,  387 
Bayne  v.  Stone,  71  b 
Beale  v.  Monies,  292 
Beard  v.  Westcott,  185 
Beardsworth  v.  Torkington,  332  a 
Beauce  v.  Muter,  363  b 


Bcauchamp  v.  Powley,  96,  103 
Beaumont  v.  Reeve,  70  b 
Beckett  V.  Dutton,  331  (Z 
Beckford  v.  Canlwell,  183  c 
Beckwaite  v.  Walgrove,  281 
Beck  with  v.  Corrall,  203 

V.  Harrison,  241 

Bedford,  (Duke  of)  v.  Trustees  of  Bri- 
tish Museum,  37 
Beeley  v.  Purry,  30 
Belcher  v.  Collins,  293 
V.  Magnay,  237  c 


Bell  V.  Frankis,  153  a 

V.  Harrison,  306 

V.  Potts,  268 

V.  Tuckett,  247  a 

V.  Warden,  55 

Bellamont's  Case,  349 
Benjamin  v.  Porteous,  505 
Bennett  v.  Deacon,  151  6 

V.  Mellor,  52 

Bennington  v.  Taylor,  302 
Bennison  v.  Thehvell,  257  a 
Bentham  v.  Tooper,  136  a 
Bentley  v.  Hoare,  109 
V.  Hook,  240  a 


Berry  v.  Taunt,  21 

Berthon  v,  Loughman,  285,  286 

Bessey  v.  Windham,  11 

Best  V.  Barber,  376 

Belts  V.  Gibbons,  71  b,  433  c 

Bevan  v.  Gething,  321  b,  321  c 

Bicknell  v.  Weatherall,  248 

Biddell  v.  Leader,  169  a 

Bill  V.  Bament,  138 

Bilton  V.  Johnson,  227 

Bindon,  (Viscountess),  her  Case,  191 

Birch  V,  Depeyster,  308 

V.  Liverpool,  (Earl  of),  144 

V.  Wright,  296  a 

Bird  V.  Bass,  237  6,  237/ 

V.  Gammon,  135,  321c 

Birkettv.  Willan,  102 
Biscop  V.  White,  44 
Bishop  V.  Chambre,  490  a 

V.  Montague,  (Lady),  223 

Bishton  V.  Evans,  217  b 
Bittleston  v.  Timmins,  237/ 
Black  V.  Braybrooke,  (Lord),  368  6 
Blackburn  v.  Mackey,  70  c 

V.  Pugh,  131  b 

Blackett  v.  R.  Ex.  A.  Co.,  309 
Blackball  v.  Heal,  147 
Bland  v.  Hazelrig,  318 
Blandy  v.  Allen,  4346 
Blaymire  v.  Haley,  131  6 
Bliss  V.  Hall,  131  c 
Bloxham  v.  Pell,  495,  502 

V.  Saunders,  432  a 

Bloxholm  V.  Oldham,  222 
Blyth  V.  Smith,  70  e 


CASES     CITED    IN     VOL.    I. 


XiU 


Bodily  V.  Long,  129 
Bold  V.  Rayner,  308 
Bolton  V.  Puller,  506 

(Lord)  V.  Tom]  in,  490  c 

Bond  V.  Pittard,  193.  490 
Bonfield  v.  Smith,  291 
Boodle  V.  Campbell,  73 
Boothby  v.  Lowden,  150 
Boson  V.  Sandford,  283 
Botiingk  V.  Inglis,  432  a 
Bottomley  v.  Brooke,  480 

V.  Forbes,  307,  309  a 

Boucher  v.  Murray,  331  c 

V.  Wiseman,  227 

Boughton  V.  Bougliton,  14 

V.  James,  186 

Boulton's  Case,  110 
Bourdeaux  v.  Rowe,  355 
Bourne  v.  Diggles,  97  a 

V.  Gattliffe,  102, 103  c,  309 

Bovey's  Case,  66  a 

Bowen  v.  Bramidge,  12 

Bowers  v.  Nixon,  331  c 

Bowler  v.  Nicholson,  56,  57 

Bowne  v.  Stewart,  247  a,  434  a,  434  d 

Bowman  v.  Horsey,  308 

V.  Malcolm,  237/ 

V.  Nicholl,  490  a 

V.  Rostron,  263 

Bowser  v.  Colby,  20 
Bowyer's  case,  364 
Boydell  v.  Drummond,  136  c,  144 
Boys  V.  Ancell,  331  d 
Bozon  V.  Farlow,  182  a 
Bracegirdle  v.  Heald,  144 
Bradbee  v.  Mayor  of  London,  131  f^ 
Bradburne  v.  Botfield,  292 
Bradley  v.  Bardsley,  490  d 

V.  Gregory,  150 

Brag  V.  Stanner,  174 

Braine  v.  Hunt,  240  a 

Brain  v  Pruce,  142 

Braithwaite  v.  Colman,  153 

Bramah  v.  Roberts,  247 

Brandao  v.  Barnett,  258 

Brandram  v.  Wharton,  319 

Branscombe  v.  Bridges,  219 

Brashier  v.  Jackson,  331  b 

Brassey  v.  Dawson,  224 

Brest  V.  Lever,  152 

Brett  V.  Cumberland,  30 

Brewster  v.  Kitchell,  32,  34,  37,  450 

Briant  v.  Clutton,  219,  340 

Brice  v.  James,  420 

Bridge  v.  G.  J.  R.  Co.,  132  a 

Bridges  v.  Fisher,  355 

Briggs  V.  Sowry,  194,  456 

Brind  v.  Dale,  101 

Bringloe  v.  Morrice,  99 

Bristow  V.  Wood,  37 

Bristow  V.  Wright,  69,  328,332 


British  Linen  Co.  v.  Drummond,  367 
Brittain  v.  Kinnaird,  386  a 

V.  Lloyd,  74 

Broadbent  v.  Ledward,  292 
Broadwater  v.  Bolt,  101 
Brook  V.  Pickwick,  101 
Brooke  v.  Bridges,  263,  269 
V.  Brooke,  61 


Brookes  v.  Mitchell,  240 
Brooks  &,  another  v.  Glencross,  378 
Brotherton  v.  Wood,  101  b,  103 
Brown  v.  Bamford,  184 

V.  Boorman,  219  c,  339 

V.  Carter,  14 

V.  Chapman,  219 

V.  Crump,  70  d 

V.  Fullerton,  249,  292 

V.  Hodgson,  103 

V.  Jones,  219  b 

V.  Shevill,  192 

V.  Thornton,  368,  368  b 

V.  Wilkinson,  103  u 

V.  Jones,  14 

V,  Lee,  71  a 

Browning  and  Beston's  case,  18,  19 
Bruce  v.  Wait,  434 
Brucklesbury  v.  Smith,  181 
Bruckshaw  v.  Hopkins,  366 
Brummel  v.  Macpherson,  18 
Brune  v.  Thompson,  366 
Brunswick,  (Duke  of),  v.  King  of 

Hanover,  368  b 
Brunton  v.  Hall,  332  a 
Bryans  v.  Wise,  434 
Bryant  v.  Rush,  35 
Brydges  v.  Lewis,  28 
Buckle  V.  Mitchell,  13 
Budd  V.  Fairmaner,  78 
Buller  V.  Delander,  147 

V,  Waterhouse,  13 

Bunn  V.  Guy,  182  a,  183 

Bunney  V.  Poyntz,  433  c 

Burdett  v.  Abbott,  46 

Burgess  v.  Clements,  51 

Burghall,  (Assignees  of ),  v.  Howard, 

410 
Burleigh  v.  Stott,  319 
Burley  v.  Bethune,  387 
Burn  V.  Boulton,  321  a,  321  b 

V.  Morris,  263 

Burnell  v.  Mi  not,  11  b 
Buron  v.  Denman,  153,  368  c 
Burrowes  v.  Gradin,  313,  417,  317  a 
Burton  v.  Hughes,  152 
Bush  v.  Cales,  29 

V.  Parker,  60 

Bushell  V.  Beavan,  136 

v.  Lechmore,  247  b 


Butcher  v.  Harrison,  13 

v.  Stewart,  135,  247  b 

and  Baker's  case,  243 


XIV 


CASES     CITED     IN    VOL.     I. 


Butler  V.  Woolcott,  433  d 
Butterfield  v.  Forrester,  132 
Bye  V.  Bower,  331  6 
Byron  v.  Thomson,  490  a 

Cabell  V.  Vaughan,  291,  292 

Cadell  V.  Palmer,  185 

Cadogan  v.  Kennett,  11,  14 

Cairns  v.  Robins,  103  c,  103  d 

Calder  and  Hebble  Navigation  v. 
Pulling,  183  d 

V.  Halkelt,  368  c 

Caldwell  V.  Ball,  394,  434 

Callander  v.  Dittrich,  331  c 

Calton  V.  Simpson,  490 

Calvert  v.  Baker,  490  h,  490  d 

Calvin's  Case,  197,  199 

Cambell  v.  Campbell,  72  d 

V.  Stuart,  249,  292 

Cameron  v.  Kyte,  153 

Camoys  v.  Scurr,  99 

Campbell  v.  Lewis,  29,  30 

v.  Rickards,  278,  284,  285, 

286 

Cannan  v.  Denew,  231 

Canterbury  (Viscount)  v.  The  Attorney- 
General,  131  d 

Cantrel  v.  Graham,  441 

Cardwell  v.  Martin,  490  a 

Cariss  v.  Tattersall,490  a 

Carlisle  v.  Garland,  238 

Carnaby  v.  Wei  by,  152 

Carpenter  V.  Mason,  387  b 

Carpue  v.  London  and  Brighton  Railway 
Company,  101  b 

Carr  v.  Burdiss,  11 

V.  Hinchcliffe,  247 

Carratt  v.  Morley,  219,  219  h 

Carrington  v.  Roots,  138 

Carter  v.  Boehm,  2h6 

v.  Breton,  231 

v.  Carter,  76 

V.  Whalley,  490,  505 

Carvalho  v.  Burn,  296 

Carvick  v.  Bla^rave,  2>Sb  c  g  e 

Gary  v.  Crisp,  224 

Case  V.  Barber,  138 

Cathcart  v.  Hardy,  387  c 

Catton  V.  Simpson,  490  b 

Cave  V.  Mountain,  387  b 

Chaddock  v.  Wilbraham,  387  e 

Chadwick  v.  Trower,  131  d 

Chamberlain  v.  Hazlewood,  218,  219 

Chambers  v.  Bernasconi,  140 

v.  Donaldson,  152 

Champneys  v.  Peck,  140,  141  a 

Chancey  v.  Win  &,  others,  56 

Chandelor  v.  Lnpus,  77 

Chandler  v.  Broughton,  217,  118 

Chaney  v.  Payne,  387  a 

Channel  v.  Ditchburn,  319 


Chanter  v.  Leese,  331  e 
Chapman  v.  Beecham,  296 

v.  Emery,  13 

V.  Pickersgill,  130 

V.  Sutton,  136  a,  331  d 

v.  Walton,  266 


Charter  v.  Peeter,  225 
Chaurand  v.  Angerstein,  2S6  a,  308 
Cheap  V.  Cramond,  504 
Cheese  v.  Scales,  248 
Cheslyn  v.  Dal  by,  321  c,  376 
Chesman  v.  Nainby,  182  a,  183 
Cheston  v.  Gibbs,  237  b,  240 
Chevers  v.  Parkington,  339 
Child  v.  Morley,  70 
Cholmley  v.  Paxton,  248 
Christie  v.  Bell,  249,  292 

v.  Griggs,  101 

V.  Unvvin,  387  6 


Clancy  v.  Piggott,  136 
Clark  v.  Blackstock,  490  a 

V.  Glass,  244 

Clarke  v.  Adair,  482 

V.    Alexander,    321    a,    321    h. 

323 

v.  Dunsford,  366 

v.  Earnshaw,  101 

v.  Gaskarth,  192 

V.  Gilbert,  99,  100  a,  240 

V.  Hooper,  321  a 

V.  Hume,  457 

V.  Roystone,  309 

V.  Shee,  262 

V.  Wilmot,  142 

Clavering  v.  Clavering,  14 
Clay  v.  Harrison,  432  a 
Clayton  v.  Gregson,  308  a 

V.  Winton,  (Earl  of),  14 

Clegg  V.  Dearden,  217 
Clerk  v.  Comer,  182,  183 

V.  Withers,  224 

Cleworth  v.  Pickford,  58 
Clifford  v.  Parker,  (Lady),  490  a 
Clifton  v.  Hooper,  131  d 
Clinan  v.  Cook,  307 
Clissold  v.  Clissold,  366 
Close  V.  Homes,  434  a 
Clough  v.  Lambert,  12,  168  b 
Clunnes  v.  Pezzy,  153 
Coates  V.  Chaplin,  103  b,  138 
v.  Railton,  433  a 


Cobbold  v.  Gaston,  323 
Cochran  v.  Retburg,  307,  308 
Cockerel  v.  Armstrong,  55 
Cockram  v.  Welbye,  225 
Cocks  v.  Brewer,  292 
Cocksedge  v.  Cocksedge,  108  6 
Cockson  V.  Cock,  29 
Codrington  v.  Lloyd,  218 
Coghil  V.  Freelove,  30,  441 
Coke  V.  Arundel,  (Earl  of),  32,  33 


CASES     CITED     IN    VOL.     I. 


XV 


k 


Colburn  v  Patmorc,  72,  72  d 

V.  Stockdale,  1G8  a 

Colchester,  (Mayor  of,)  v.  Brooke,  132  a 

Coldham  v.  Sliowler,  136  c 

Cole's  case,  29,  380 

Cole  V.  Davies,  10,  224,  239 

V.  Dyer,  136 

V.  Green,  170 

Coles  V.  Bank  of  England,  132  a 
Collingbourne  v.  Mantell,  150 
Collins  V.  Beaumont,  219  b 

V.  Benton,  376 

V.  Jenkins,  366 

V.  Martin,  259,  261 

V.  Plumb,  37 

V.  Walker,  50 

Colshill's  case,  6 

Combe  v.  Woolfe,  136  a 

Congleton,  (Mayor  of),  v.  Pattison,  29 

Conway  v.  Nail,  237  e 

Cooch  V.  Goodman,  137,  183 

Cook  V.  Allen,  240  a 

Cooke  V.  Birt,  44,  45 

V.  Stratford,  331  h,  331  c,  331  d 

V.  White,  44,  45 

Coomer  v.  Latham,  219  c 
Coope  V.  Eyre,  498, 504 
Cooper  V.  Blandy,  380 

V.  Blick,  328 

V.  Harding,  219 

V.  Monke,  55 

V.  Phillips,  150 

V.  Waldegrave,  (Lord),  368  a 

V.  Whitehouse,  331  c 

V.  Willomatt,  100 

V.  Wyatt,  21 

Cope  V.  Rowlands,  169  h 
Copeland  v.  Stephens,  455,  456 
Coppock  V.  Bower,  168  a 
Corbet  v.  Brown,  79 
Cormick  v.  Trapaud,  13 
Cornbury,  (Lord),  v.  Middleton,  33 
Cottam  V.  Partridge,  3'il  a 
Cotterell  v.  Homer,  14 
Cotterel  v.  Hooke,  444 
Cotteril  v.  Dixon,  366 
Courtney  v.  Collet,  216 
Cousins  V.  Paddon,  332 
Covell  V.  Laming,  217 
Covington  v.  Willan,  102 
Cowasjee  v.  Thompson,  433  S,  434 
Cowell  V.  Edwards,  71  a 
Cowie  V.  Halsall,  490  a 
Cowling  V.  Higginson,  332  a 
Cowper  V.  Garbett,  58,  59,  59  a,  59  h 
Cox  V.  Browne,  21 

V.  Painter,  331  h 

Coxhead  v.  Richards,  131  6 
Craft  V.  Boite,  55,  365 
V.  Small  wood,  134 


Cranley  v.  Hillary,  150 


Craven  v.  Edmondson,  231 

V.  Henley,  147 

(Lord),  V.  Widdowes,  500 


Cremen  v.  Hawkes,  38  h 
Creswell  v.  Wood,  138 
Cripps  v.  Davies,  376 
V.  Davis,  321  c 


Crisp  V.  Anderson,  158 

v.  Griffiths,  57 

Crofts  v.  Harris,  146 
Crook  v.  Jadis,  263 
Crosfield  v.  Stanley,  231 
Cross  V,  Eglin,  309  a 
Crotty  V.  Hodges,  490  a,  490  b 
Crowther  v.  Ramsbottom,  310 
Crucknell  v.  Truman,  247  c 
Crusoe  v.  Bugby,  20  a 
Cud  lip  v.  Rundle,  327 
Culverwell  v.  Nugee,  248 
Cumber  v.  Wane,  135,  148, 149 
Gumming  v.  Bedborough,  76  a 

V.  Brown,  434  a 

v.  Welsford,  231 


Cundell  v.  Dawson,  169  a 
Curlewis  v.  Corfield,  153  a 
Currie  v.  Bind,  14 
Curtis  v.  Drinkwater,  366 

V.  Headfort,  (Marquis  of),  58,  59  c 

Cutter  v.  Powell,  150 

Dakin  v.  Cope,  19 
Dale  v.  Hall,  102 

v.  Hamilton,  138 

Dalton  v.  Whitten,  192 
Daly  V.  Thompson,  260 
D'Aquila  v.  Lambert,  431 
Darby  v.  Harris,  192 
Darnell  v.  Trott,  134 
Dartnall  v.  Howard,  97  d,  103 
Davenport  v.  Bishop,  14 
Davey  v.  Mason,  102 
David  v.  Ellice,  149  a 

v.  Preece,  331  c 

Davies  v.  Aston,  194 

V.  Chapman,  59  c 

V.  Garrett,  102 

v.  Humphreys,  71  a 

v.  Jenkins,  131  b 

V.  Powell,  194 

V.  Williams,  131  b 

Davis  V.  Black,  105,  339 

Chapman,  328 

Dunne,  331  a 

Eyton,  21 

James,  103 

Lloyd,  142 

London  and  Blackwall  Railway 
Company,  131  d 

Mann,  132  a 

Mason,  182  a,  183  a 


V.  Moreton,  21 


xvi                                      fJASESCITEDiN 

Davis  V.  Nest,  397  c 

Doe 

Davidson  v.  Cooper,  490  c,  490  d 

V. 

Davison  v.  Gill,  387/ 

V. 

Davy  V.  Cliamberlain,  100 

—  v. 

Dawes  v.  Peck,  103 

V. 

Dawson  v.  Bowman,  366 

—  V. 

V    rrnnn   ''IP 

V. 

V.  Chamney,  51 

V. 

Day  V.  Edwards,  218 

—  V. 

V.  King,  387  a 

V. 

V.  Muskett,356,  357 

—  V. 

V.  VValdock,  236 

—  v. 

Dean  v.  Keate,  99 

—  V. 

Dean  of  Windsor  v.  Cover,  23,  24 

—  v. 

De  Begnis  v.  Armistead,  169  a 

—  v. 

Do  Berkom  v.  Smith,  508 

—  v. 

De  Bernardy  v.  Spalding,  247  b 

—  V. 

247  c 

V. 

De  Bert  v.  Thompson,  136  c 

—  V. 

De  Costa  v.  Atkins,  268 

V. 

Deely's  Case,  332 

—  v. 

Deering  v.  Winchelsea,  71  a 

—  V. 

Do  Gon^douin  v.  Lewis,  46,  46  c 

—  V. 

De  la  Vega  v.  Vianna,  367 

—  V. 

Demandray  v.  Metcalf,  100  a 

—  V. 

De  Mautort  v.  Saunders,  291 

—  V. 

De  Medina  v.  Grove,  131  b 

—  V. 

Denby  v.  Moore,  75 

—  V. 

Denn  v.  White,  268 

V. 

Denne  v.  Knott,  376 

—  V. 

Denns  v.  Loring,  21 

—  V. 

De  Rutzen  v.  Lewis,  17 

—  V. 

Desbrowe  v.  Wetherby,  490  b 

—  V. 

Devaux  v.  Steinkeller,  81 

V. 

Devereux  v.  Barlow,  441 

V. 

Dewey  v.  Bayntun,  11 

—  V. 

De  Wolff  V.  Bevan,  247  a 

—  V. 

Dickenson  v.  Hatfield,  321  c,  376 

—  V. 

V.  Valpy,  499 

V. 

V  Wit^-^n  ''1 4 

V. 

Dillon  V.  Bailey,  375 

V. 

V.  Langley,  238 

—  V. 

Dimmock  v.  Sturla,  331  d 

—  V. 

Dimsdale  v.  Clarke,  387 

—  V. 

Ditcham  v.  Bond,  219 

—  V. 

Dixon  V.  Cooper,  505 

—  V. 

V.  Yates,  70  b,  433  c,  433  d 

—  V, 

Dobell  V.  Hutchinson,  136  c 

—  V. 

V.  Stevens,  78 

—  v. 

Dobree  v.  Napier,  152,  368  c 

—  V. 

Dod  v.  Monger,  66 

V. 

Dodd  v.  Hawkins,  131  b 

—  V. 

V.  Holme,  131  d 

—  V. 

Dodson  v.  Wentworth,  433  a 

—  V. 

Doe  v.  Adams,  317  c 

—  V. 

—  v.  Palmer  v.  Andrews,  457 

—  v. 

—  v.  Grimsby  v.  Ball,  12,  13 

—  V. 

—  V.  Bancks,  19 

—  v. 

—  V.  Higginbotham  v.  Barton,  317 

—  v. 

—  v.  Freeman  v.  Bateman,  38  i 

—  V. 

VOL.    I. 

V.  Batten,  20  a 
.  Benson,  308  b 
,  Bevan,  21 
.  Birch,  18,  190 
.  Bliss,  18,  20  a 
,  Bottriell,  14 

.  Bristol  and  Exeter  Railway  Com- 
pany, 387  b 
,  Butcher,  19 
,  Cad walader,  295,296 
,  Wyndham  v.  Carew,  21 
,  Carter,  21 

Clarke,  21 

.  Loscombe  v.  Clifford,  331  a 
.  Basto  V.  Cox,  296 

Merigan  v.  Daly,  269 

Davis,  21,  268,  269 
,  Parsley  v.  Day,  296 
,  Edwards,  315 

Marriott  v.  Edwards,  331  c,  331  e 

Errington,  331  c,  331  c 
.  Fallows,  13 

Filliter,  268,  269 
,  Chandler  v.  Ford,  168 

Gibbs,  269. 

Giles,  295 

Goldsmith,  317 

Lyster  v.  Goldwin,  296 

Wilkinson  v.  Goodier,  296 

Hales,  295,  296 

Simpson  v.  Hall,S31  e 

Hare,  76,  269 

Harlow,  269 

Harvey,  268 

Hawkes,  21 

Graham  v.  Hawkins,  142 

Parsons  v.  Heather,  268,  331  b 

Thompson  v.  Hobson,  268 

Hogg,  20  a 

Huddard,  268 

James,  14 

Butler  v.  Kensington  (LiOrd),  296 

Laming,  52 

Lea,  308  b 

Edwards  v.  Leach,  331  d 

Lewis,  17,  18,  20,  28,  142 

Bowman  v.  Lewis,  296 

Bennett  v.  Long,  331  b 

Boylance  v.  Lightfoot,  296 

Maisey,  295 

Manning,  13 

Marchetti,  29 

Martyr,  14 

Meux,  19 

Garrod  v.  Olley,  290 

Pattison,  355 

Pritchard,  19,  20 

Rees,  18 

Baverstock  v.  Rolfe,  14 

Rowe,  14 

Strode  v.  Seaton,  29,  38  c 


CASES    CITED    IN    VOL.     T. 


XVll 


Doe  V.  Smith,  456 

—  V.  Snovvden,  305 

—  V.  Staple,  295 

—  V.  Clarke  v.  Stilhvell,  303 

—  V.  Snell  V.  Rowe,  296 

—  V.  Turford,  140,  141 

-  d.  Starr  v.  Wheeler,  292 

—  V.  Whitcombe,  268 

—  V.  Williams,  20 

—  d.  Hanley  v.  Wood,  20 

—  V.  Wright,  268 
Donaldson  v.  Foster,  308 
Donnellan  v.  Read,  144,  317  a 
Doorman  v.  Jenkins,  89,  96,  97 
Douglas  V.  Ward,  14 
Dowler  v.  CoUis,  366 
Dowling  V.  Forde,  319 
Down  V.  Hailing,  263 

V.  Rogers,  149 

Downes  v.  Richardson,  490  a 

Downing  (Lady)  v.  Chapman,  161,  163 

Drewell  v.  Fowler,  332  a 

Drinkwater  v.  Goodwin,  417 

Dry  V.  Boswell,  505 

Duckett  V.  Williams,  355 

Duckworth  v.  Harrison,  331  a 

Dubois  V.  Ludert,  291 

Dudden  v.  Long,  240  a 

Duffv.  Budd,  102 

Duffield  V,  Scott,  71 

Dumpor  v.  Symms,  21 

Dunbar  v.  Roxburgh,  128 

Dundas  v.  Dutens,  14 

Dunlop  V.  Lambert,  103  s 

V.  Waugh,  78 

Durnford  v.  Messiter,  70 
Durore's  Case,  332 
Durrell  v.  Bederley,  281,  283,  285 
Dutchman  v.  Tooth,  69,  136  a 
Dutton  V.  Howell,  345 

V.  Solomonson,  103 

Duvergier  v.  Fellowes,  169 
Dye  V.  Leatherdale,  60,  66 

Eager  v.  Grimwood,  131  b 

Eagleton  v.  Gutteridg  e,  45 

Easly  V.  Crockford,  263 

East  V.  Skinner,  328 

East  India  Company  (The),  v.  Clavell, 

14 
Eastcourt  v.  Weekes,  302 
Easterby  v.  Sampson,  30 
Eastwick  v.  Caillaud,  12 
Eastwood  V.  Kenyon,  70  b,  135  a 

V.  Savile,  321  b 

Eaton  V.  Southby,  194 

Eden  v.  East  India  Company,  307 

V.  Turtle,  247  a 

Edgar  v.  Knapp,  71  6 
Edmunds  v.  Pinniger,  57 
Edwards'  Case,  332  s 

Vol.  I.— 2 


Edwards  v.  Baugh,  149 

V.  Brewer,  432  a,  433  a 

V.  Brown,  170 

V.  Chapman,  150 

V.  Cooper,  237  c 

V.  Harben,  9,  10,  11 

V.  Hooper,  240 

V.  Lawley,  237  a 

V,  Sherratt,  101 


Egremont  (Earl  of)  v.  Keene,  38  a 
Elborne  v.  Good,  186 
Elliotson  V.  Feetham,  131 
Elliott  V.  Kemp,  152 
Ellis  V.  Hunt,  432  a 

V.  Levi,  136 

V.  Maxwell,  186 

V.  Taylor,  65 

Elphinstone  v.  Bedreechund,  368  c 
Elsee  V.  Smith,  218 
Elton  V.  Larkins,  274,  286 
Elwell  V.  G.  J.  Railway,  59 
Emmett  v.  Kearns,  136  a 
Empson  v.  Bathurst,  161 
England  v.  Davison,  70 
Ernest  v.  Brown,  331  c 
Escott  V.  Martin,  209 
Etherington's  Case,  332 
Etherton  v.  Popplewell,  66  a 
Evans  v.  Drummond,  505 
V.  Duncan,  138 

V.  Davies,  321  a 

V.  Elliot,  65,  296  a,  298,  317 

V.  Hellier,  186 


V.  Martlett,  394,  407,  433  e 

v.  Nicholl,  434 

V.  Pratt,  308 

V.  Powis,  150,  331  c 

V.  Rees,  150  a 

V.  Stevens,  247,  247  c 

V.  Thomas,  296 

V.  Williams,  376 

Eveleigh  v.  Purssord,  12 
Evelyn  v.  Templar,  13 
Everett  v.  Wells,  240 
Ewart  V.  Jones,  219  c 
Exall  v.  Partridge,  70  a,  73 
Eyre  v.  Shelley,  169  c 

Falcon  v.  Benn,  332  a,  332  b 
Falmouth   (Earl  of),   v.    Thomas,    145, 

490  c 
Fancourt  v.  Bull,  263 
Farnworth  v,  Packwood,  51 
Farrar  v.  Deflinne,  505 
Faulkner  v.  Chevall,  247 
Fawcett  v.  Fearn,  237  c,  237  c,  237  d, 
237/ 

v.  Fowles,  386  a 

Fay  V.  Prentice,  131  d,  218 
Fearnley  v,  Worthington,  386  a 
Featherslon  v,  Hutchinson,  169  a 


XVIU 


CASES    CITED    IN    VOL.    I, 


Fearon  v.  Bowprs.  410 
Feise  v.  NVray,  433 
Fell  V.  Knipht,  5vJ 
Fenner  v,  Menr.s  481 
Fenton  v.  Enililers,  143 

V.  Lngan,  193,  194 

Fcnwick  v.  Bell,  2*6 
Ferguson  v.  Fyffe,  3G8  b 

V.  Norman,  1C8,  109  a 

Ferrall  v.  Sliacn,  lfi9 
Ffytclie  V.  Bishop  of  London,  1G9 
Field  V.  Adn.nes,  193 
Filliter  v.  Pluppard,  131  d 
Findon  v.  R) 'Lai en,  192 
Finch  V.  TJirogmnrton,  19 

V.  Cochen,  218 

Fisher  v.  Fellowe?!,  70  d 

V.  Wooil,  fi9,  59  c 

Fisherwood  v.  (Gannon,  60 
Fislimonjjer's  Co.  v   Robertson,  150  a 
Fitch  V.  Stitton,  147 

Fitherbert  v.  ^'alhe^,  274 
Fletcher  v.  Bowsher,  78 
V.  Hareot,  72 

V.  Heath,  434  b 

V.  Sondes  (Lord) 

Flight  V.  Cooke,  09  b 

V.  Tlio^nas.  131  c 

Flower  v.  Adam,  132 
Foley  V.  Aiidenbrooke,  292 
Folkes  V.  Cbiuid,  28!i  a 
Follet  V.  Hoppe,  2'i7  e 
Ford  V.  Bayiiton.  236 
V.  nrook,  304 

V.  Hopkins,  257 

V.  Hoskms,  110,  112 

V.  Yates,  3(19 

Forennan  v.  Davis,  331  b 
Forth  V.  StawnSnn,  135 
Forty  V.  hnber,  3:i2  b 
Forward  v.  I'ittard,  lOi 
Foster  v.  Charles,  79 

V.  Frampton,  433  a,  433  d 

V.  PtiirsDi),  W63 

V.  Poin'er,  331  e 

V.  'lav  lor,  300 

Fowler  v.  Kirk- rhv,  292 

Fox  V.  Chester  (Bishop  of),  1G9 

-  V.  SwHiiM,  21 

Fiamptoji  V.  F'iMmpton,  12,  108  b 
Franca  111  v    Foster,  143 
France  v.  W  hue,  339 
Francis  v.  Dod^uorih,  332  b 

V.   Dno,  2(J9 

V.  VVyat,  193 

Franklin  v.  ^e.•lle,  KK)  b 
Freeman  v.  Bakf^r,  78 

V.  Bernard.  146 

V.  Birch,  103 

V.  Crafts,  332  b 

V.  Edwards,  296 


Freeman  v.  Freeman,  P5 
Fricker  v.  Tonilinson,  138 
Friers  v.  Woodliouse,  274 
Furley  v.  Wood,  307,  308  b 
Fiirsden  v.  Weeks,  59  c 

Gabay  v.  Lloyd,  308 
Gale  V.  Reed,  182  o,  183 

V.  Williamson,  141,  170 

Galloway  v.  Jackson,  332  b,  339 
Gardiner  v.  Williams,  339 
V.  Williamson,  24 


Gardner  v.  M'Malion,  376 

Gardom,  Exp.  136  a 

GarjTrave  v.  Smith,  65,  66  a 

Garland  v.  Carlisle,  239 

Garnet  v.  Willan,  102 

Garrard  v.  Wooln^r,  149  b 

Garside  v.  Trent  JXavigation  Co.,  101 

Garten  v.  Robinson,  59  a 

Gaskil  V.  King,  169  a 

Gas  Light  Co.  v.  Turner,  169  b 

Gates  V.  Bayley,  60,  215 

Gathercole  v.  AJiall,  131  b 

Gayler  v.  Farrant,  331  d 

Geddes  v.  Wallace,  506 

Gcekie  v.  Monck,  331  c 

Geller,  Exp.  504 

General  Steam  Navigation  Co.  v.  Guil 

Ion,  368 
Genner  v.  Sparks,  46 
George  v.  Kmch,  152 
V.  Mil  bank,  14 


Gerrard  (Lord)  v.  Floyd,  365 
Gibbons  v.  IVlottrnm,  59  a 
Gibbs  V.  Pike,  131  6 
Gibson  v.  Curruthers,  432 
Gibson  v.  Conrthorpe,  457 
Gi fiord  {Exp.  Lord),  387  m 
Gilbart  v.  Dale,  103 
Gilbert  v.  Stone,  214 
Giles  v.  Grover,  235 
Gill  V.  Cubit,  262,  263 
Gillard  v,  Britton,  432  c 
Gillet  V.  Rippon,  70  e 
Gilling  V.  Dugan,  366 
Gillow  v.  Lillie,  170 
Gilman  v.  Elton,  192 
Giraud  v.  Richmond,  144 
Gisbourne  v.  Hurst,  192,  193 
Glover  v.  Cope,  28 
Glynn  V.  Baker,  259 
Goddard  v.  Ingram,  319,  321  a 
V.  Vanderheyden,  454 


Godfrey  v.  Furze.  418 
V.  Turnhull,  505 


Godolphin  v.  Tudor,  169 
Godson  V.  Sanctuary,  231 
Goldschmidt  v.  Hamlet,  237  b 
Goldshede  v.  Swan,  136  6 
Gooch's  Case,  13 


CASES     CITED     IN     VOL.     I. 


XIZ 


Goodchild  v.  Leadham,  249,  292 
Goode  V.  Cheesman,  135  er,  149  b 
Goodman  v.  Harvey,  263,  203  b 

V.  Cfiase,  135 

Goodright  v.  Moses,  13 

V.  Davie?,  18 

Goodlitle  v.  Tombs,  268 
Coram  v.  Sweeting,  247 
Gordon  v.  Harper,  432  b 
Gorgier  v.  Mieville,  258,  259 
Gorton  v.  Falkner,  194 
Goss  V.  Neale,  12 

V. Jackson,  387  b 

Gossel  V.  Howard,  133 

Gould  V.  Coombes,  490  c 

Gouldsworlh    v.    Knights,   38    b,    33  c, 

38  e 
Grace  v.  Smith,  498,  503 
Graham  v.  Hope,  505 

V.  Lafitte,  363  c 

V.  Lynes,  237  b 

V,  VVitherby,  237  b,  237,  e,  240 

Granger  v.  Collins,  70  c 
Grant  v.  Maddox,  308 

V.  Vau--han,  258.  259 

Grantham  v.  Gordon,  180 

V.  Havvley,  302 

Graves  v.  Key,  148 

Gray  v.  Cookson,  386  a 
Green  v.  Bcesley,  504 

V.  Bradfield,  237/ 

V.  Button,  132 

V.  Cremer,  136  c 

V.  Creswell,  135  a 

V.  Elgie,  219  b 

V.  James,  30 

V.  Laurie,  237  e 

V.  Marsh,  332  b 

V.  Price,  169  a,  193  b,  183  c 

V,  Steere,  237  c,  237  d 

Creenavvay  v.  Adams,  20 
Greenavvay  v.  Titchmarch,  366 
Greville  v.  Atkins,  168  a 

V.  Chapman,  286 

Griffin  v.  Ashley,  320  a 

V.  Yates,  58 

Griffith  V.  Lee,  103 

V.  Harries,  3^6  a,  387  a 

Griffiths  V.  Puleston,  299 

V.  Roxboroijgh,  339 

V.  Vere,  166 

Grimsby  v.  Rail,  13 
Grinnell  v.  Wells,  131  b 
Grissell  v.  Robinson,  70  a,  308  b 
Grocers'  Company  v.  Donne,  131  d 
Groenvelt  v    Burwell,  345 
Grogan  v.  Magan,  365 

Groome  v.  Forrester,  336  a 
Groves  v.  Cowham,  239 
Guest  V.  Elwes,  331  b,  331  e 
Guidon  v.  Robson,  507 


Gunmakers'  C.  (Master,  &c.  of)  v.  Fel 

182 
Gnrford  v.  Bayley,  331  d 
Gurney  v.  Hill,  339 
Gutsole  V.  Mathers,  81 
Gwynne  v.  Burnell,  170 

Hagedorn  v.  Reid,  140 
Haigh  V.  Brookes,  136  b,  148 
Haille  v.  Smith,  307 
Haley  v.  Bannister,  186 
Halhead  v.  Abrahams,  248 
Hall  v.  Palmer,  168 

V.  Tapper,  247  b 

V.  Wallace,  237  6 

HaJlet  V.  Bvrt.  222 
Halsall  V.  Griffith,  292 
Ilammersley  v.  Baron  de  Biel,  136  c 
Hammond  v.  Anderson,  433  c 
Hammond  v.  Howell,  109 
Hamper,  Exp.  507 
Hanbury  v.  Ella,  331  d 
Hancock  v.  Welsh,  457 
Hanson  v.  Meyer,  433  c 
V.  Stevenson,  457 


Hardcastle  v.  Howard,  146,  147 
Hardy  v.  Martin,  180 

V.  Ryle,  386  a 

Hargreaves  v.  Parsons,  135  a 
Harker  v.  Birkbeck,  211 
Harley  v.  King,  30 

Harold  v.  Whittaker,  292,  317  c 
Harris  v.  Birch,  100  c 

V.  Goodwyn,  339 

V.  Rlantle,  328 

V.  Ryding,  131  c 

Harrison  v.  Bowden,  224 

V.  Cotgreave,  490  a 

V.  Godman,  173 

Healhorn,  150  a 


Hart  V.  Alexander,  149  b 

V.  Middlehurst,  14 

V.  Nash,  321  a 

V.  Prendergast,  376 

Hartley  v.  Cumniings,  183  d 

V.  Manton,  53 

V.  Monham,  217 

V.  Wharton,  377 


Hartop  V.  Hoare,  407 
Hartshorne  v.  Watson,  20 
Harvey  v.  Pocock,  66 
Hasleng  v.  Bland,  319 
Haslock  V.  Ferguson,  81 
Hastings  v.  Wilson,  457 
Hatfield  v.  Phillips,  434  a 
Hatton  V.  Walker,  248 
Havves  v.  Armstronir,  136 
Hawkes  v.  Orton,  328 
V.  Smith,  103  b 


Hawkins,  Exp.  231 
V.  Cooper,  132  a 


zx 


CASES     CITED     IN     VOL.     I. 


Hawley  v.  Beverley,  70  a 
Hawthorn  v.  Hammond,  52 
Hayes  v.  Warren,  70 
Haynes  v.  Foster,  263 
Hayter  v.  Moat,  339 
Hayward  v.  Banks,  211 
Haywood  v.  Rogers,  286 
Head  v.  Baldrey,  339 
Heath  v.  Milward,  152 

. V.  Perceval,  500 

V.  Sansom,  505 

Heathcote  v.  Crookshanks,  149 
Hellicr  v.  Casbard,  30 
Hemming  v.  Parry,  331  d 
Hemmings  v.  Robinson,  318 
Hemingway  v.  Fernandes,  30 
Hemingay  v.  Hamilton,  59  a 
Henman  v.  Dickenson,  490  a 
Henry  v.  Burbridge,  339 
Hensv/orth  v.  Fowkes,  218 
Herbert  v.  Sayer,  59  a,  152 
Heriz  v.  Riera,  368  a 
Herring  V.  Finch,  111,129 
Hesketh  v.  Blanchard,  506 

•    V.  Braddock,  173 

Heylin  v.  Hastings,  318 
Hibbert  v.  Carter,  394 
Hibblewhite  v.  M'Morine,  260 
Hide  v.  Thornborough,  131  c 
Hiofgins  V.  Nicholls,  331  d 
Higham  v.  Rabbett,  331/,  332  a 

■ V.  Ridgway,  139 

Hill  V.  Barclay,  21 

—  V.  Bateman,  380 

—  V.  Bigge,  153,  368  b 

—  V.  Dobie,  457 

—  V.  Exeter,  (Bishop  of),  13 
_     v.  Farrall,  231 

V.  Manchester  and  Salford  Water- 
works Company,  163  a,  170 
_     V.  Salt,  331  d 
Hind  V.  Gray,  29,  182 
Hindley  v.   Westmeath,   (Marquis  of), 

168  6 
Hinton  v.  Dibbin,  102,  103 
Hitchcock  v.  Coker,  183 
Hoare  v.  Dawes,  498,  504 
.  Hoby  V.  Roebuck,  144 
Hockin  v.  Cook,  303  b 
Hocking  v.  Acraman,  237  e 
Hodgson  v.  Loy,  432  a,  433  a 

■    V.  Towning,  46  c 

Holbird  v.  Anderson,  12 

Holcrofl's  Case,  13 

Holden    v.    Liverpool     Gas     Company 

(The),  131  d 
Holding  v.  Piggott,  307 
Holford  v.  Bailey,  218,  219  c 
Holland  v.  Bird,  218 
Hollingsworth  v.  Broderick,  44 
Hollis  V.  Palmer,  322 


Holme  V.  Green,  321  a 
Holmes  v.  Buckley,  33 

. V.  Newlands,  46  d 

V.  Williamson,  71  b 

V.  Wilson,  217 


Hoist  V.  Pownall,  433  a,  433  d 
Homer  v.  Ashford,  182 
Hooker  v.  Nye,  55,  59 
Hooper  v.  Hooper,  268 

•  V.  Stephens,  321  a 

V.  Tatfrey,  70  d 


Hopkins  v.  Francis,  331  a 

V,  Logan,  70  c,  70  d 

V.  Prescott,  169 


Hopkinson  v.  Lee,  292 
Hopton,  Exp.  456 
Hornby  v.  Houlditch,  444 
Horner  v.  Graves,  183  a 
V.  Moor,  290 


Horsford  v.  Webster,  194 
Horton  v.  Riley,  70  d 
Houghton  v.  Matthews,  417 
How  V.  Synge,  169  a 
Howard  v.  Gossett,  133 
Howarth  v.  Willet,  366 
Howden  v.  Haigh,  169  a 
Howel  v.  White,  152 
Howes  V.  Martin,  134 
Hoye  V.  Bush,  219  b 
Huber  v.  Steiner,  367 
Hudson  V.  Grainger,  417 

V.  Nicholson,  218,  219  c 


Huggett  v,  Montgomery,  218 
Hughes  v.  Gordon,  367 
Hufme  v.  Mugglestone,  247 
Humberton,  In  re,  432  c 
Humphreys  v.  Jones,  376 

V.  O'Connell,  59,  59  b 

Pratt,  72 


Hungerford  v.  Earle,  13 

Hunt's  Case,  332 

Hunt  v.  Dowman,  123,  124 

v.  Hooper,  12 

Hunter  v.  Beale,  400 

V.  Brett,  268 

V.  Hunt,  72  d 

V.  M'Gown,  103 

Hurry  v.  Mangles,  433  a 
Hustler  v.  Raines,  244 
Hutch  v.  Carrington,  308 
Hutchins  v.  Chambers,  194 
Scott,  457,  490  c 


Hutchinson  v.  Birch,  44,  45 

V.  Bowker,  308,  309  a 

Hutton  v.  Eyre,  71  b 

V.  Parker,  183,  183  a 

V.  Warren,  306,  307 


Hyde  v.  Johnson,  322,  323 

V.  Mersey  and  Trent  Nav.  Co.  52, 

101,  103  c 
V.  Watts,  19 


CASES     CITED      IN     VOL.     I. 


XXI 


Hyeling  v.  Hastings,  376 

Imray  v.  May  nay,  12,  13 
Inglis  V.  Usherwood,  432  a 
Irons  V.  Smallpiece,  70  d 
Irving  V.  Veitch,  321  c,  376 
Isaac  V.  Clark,  99,  100  h 

V.  Farrar,  57,  59,  59  a 

V.  Spilsbury,  236,  240  a 

Isherwood  v.  Oldknow,  2S 
Israel  v.  Douglas,  483 

Ivatt  V.  Mann,  332  a 
Ivey  V.  Young,  331  d 

Jackson  v.  Bowley,  12 

V.  Cobbin,  70  d,  169 

V.  Lowe,  136  c,  323 

V.  Rogers,  101 

Jacob  V.  Hart,  490  a 

V.  Kirk,  33]  d 

V.  Milford,  296 

Jacobson  v.  Blake,  66  6 
James  v.  GrifBn,  433  a 

V.  Lingham,  332  h 

V.  Williams,  136  a 

Jannet's  Case,  332  c 

Jee  V.  Thurland,  168  h 
Jeffrey  v.  Walton,  78 
Jeffreys  v.  Gurr,  70  a 
Jelfv.  Oriell,  331  d 
Jell  V.  Curzon  (Lord),  292 
Jelly  V.  Clarke,  52 
Jemmott  v.  Cooley,  296 
Jendwin  v.  Slade,  78 
Jenks'  Case,  332 
Jenkins  v.  Blizard,  505 

V.  Church,  20 

V.  Kemish,  13 

V.  Phillips,  331  e 

V.  Reynolds,  136 

Jenkyns  v.  Usborne,  432  6,  432  c 
Jennings  v.  Browne,  70  c 
Jervis  v.  Bruton,  185 

Joseph  V.  Ingram,  10 
Joddrell  v.  Joddrell,  168  6 
John  V.  Currie,  331  6 
Johnson  v.  Dodson,  136  e 
■  V.  Hudson,  169  h 

V.  Jones,  73,  74,  317  a 

V.  Legard,  14 

V.  Leigh,  44 

V.     Marlborough     (Duke 

490  a 

Johnstone  v.  Usborne,  309  a 
Jones  V.  Ashurst,  12 

V.  Carter,  20  a 

V.  Croucher,  14 

V.  Jones,  247  6,  247  c,  433  d 

V.  Kitchen,  55 

V.  Owen,  387  h 

V.  Marsh,  14 


of), 


Jones  V.  Senior,  58 

V.  Tyler,  52 

V.  Waite,  168  6,  169  «,  170 

V.  Williams,  71 

Jordan  v.  Twells,  247,  247  c 
Joule  V.  Jackson,  193 

Kaye  v.  Dutton,  70  d 
Kearney  v.  King,  309 
Kearslake  v.  Morgan,  147 
Keate  v.  Temple,  134 
Kelley  v.  Partington,  132  h 
Kemble  v.  Keane,  182 
Kemp  V.  Finden,  71  a 

V.  Westbrook,  100  h 

Kendillon  v.  Maltby,  132  h 
Kennaway  v.  Treleaven,  136  a 
Kennett  v.  Milbank,  376 
Kennersley  v.  Nash,  490  a 
Kent  V.  Shuckard,  51 
Keppel  V.  Bailey,  367 

Kerbey  v,  Denby,  4^  46  c,  46  d,  59  d 
Kerr  v.  Leeman,  168  a 

V.  Willan,  102, 

Kerrison  v.  Cole,  169  d 
•-    V.  Dorrien,  13 


Kershaw  v.  Cox,  490  a 
Kettle  V.  Bromsale,  99 
Kid  V.  Rawlinson,  10 
Kidwelly  v.  Brand,  28 
^Kiggil  V.  Player,  221,  295 
Kilner  v.  Bailey,  332  h 
Kimberly  v.  Jennings,  182 
Kinder  v.  Paris,  247,  247  c 
King  V.  Green,  328 

V.  Hoare,  292 

V.  Jones,  30 

V.  Meredith,  103 

V.  Sears,  70 

Kingdon  v.  Nottle,  30 
Kingsdale  v.  Mann,  225 
Kinloch  V.  Craig,  424 
Kirk  V.  Broad,  366 

V.  Clark,  14 

V.  Dolby,  248 

Kirkpatrick  v.  Tattersall,  70  6,  375 
Kirwan  v.  Goodman,  168  a 

V.  Kirwan,  149  6,  505 


Kitchen  v,  Campbell,  240 
Knight  V.  Clements,  490  a 

V.  Gibbs,  132  h 

V.  Hughes,  70  e 

V.  McDouall,  331  h 


V.  Woore,  332  a 

Knill  V.  Williams,  490  a 
Knowles  v.  Mitchell,  145 
Kruger  v.  Wilcox,  417 
Kynaston  v.  Crouch,  237/ 

Lackington  v.  Atherton,  433  c 
V.  Elliott,  237  c,  237  e,  237/ 


XXll 


CASES     CITED     IN     VOL. 


Lackingtnn  v.  M'Lnchlan,  237  h 
Ladii  V.  Thomas,  65 
Lakin  v.  Watson,  299 
Lamb  v.  Smyihe,  292 
Lambert  v.  Ilodson,  59  d 

V.  Norriy,  317  h 

Lampleig;h  v.  Braithwaitc,  317  a 
Lancaster  v.  Greaves  3^6  a 
Lane  v.  Chapman,  376 

V.  Drink  water,  292 

Lang  V,  Smyth,  25S 
Langdale,  Exp.  506.  507 
Langfortl  v.  Tiler,  432  c 

V.  Waghorn,  55 

Langham  v.  Prodgers,  14 
Langridge  v.  Levy,  131 
Lane  v.  Cotton,  101 

V.  Robinson,  56 

Langton  v.  Lazarus,  490  d 
Lanman  v.  Audley  (Lord),  150  a 
Lansdalo  v.  Clarke,  59  b 
Latimer  v.  Batson,  10 
Launock  v.  Brown,  46 
Lavender  v.  Blackstone,  13 
Law  V.  Law,  169 

V.  Wilkin,  70  c 

Lawson  v.  Weston,  261,  262 

Laythoarp  v.  Bryant,  137 

Layng  v.  Payne,   169 

Lazarus  v.  Waithman,  233 

Leak  v.  Loveday,  152 

Leame  v.  Bray,  217,  213 

Lear  v.  Caldecolt,  219 

Learoyd  v,  Robinson,  434  e 

Lechmere  v.  Thorowgood,  224,  237/ 

Leek  V,  Mestaer,  101 

Lee  V.  Colshill,  169 

-  V.  Gansel,  45 

-  V.  Muggeridge,  70  a 

-  V,  Welch,  339 
Leeds  v.  Compton,  16 
Leigh  V.  Hind,  183 
Leighton  v.  Wales,  1S3 
Le  Keux  v.  Nash,  30 
Lempriere  v.  Pasley,  422 
Leonard  v.  Baker,  10 
Leslie  v.  Baillie,  368  b 
Lessee  of  Favvcett  v.  Hall,  33  h 

of  Porter  v.  French,  38  h 

of  Walsh  v.  Feeley,  38  h 

Lethulier's  Case,  308 

Levy  v.  Barnard,  422 

V,  Yates,  1 69 

Lewis  V.  Campbell,  30 

V.  Chase,  372 

V.  Marshall,  309  a 

Leyfield's  Case,  483 
Lickbarrow  v.  Mason,  260 
Lilly  V.  Hays,  70 
Lindenau  v.  Desborough,  283 
Linden  v.  Sharp,  11,  12 


Lindsay  v.  Linibert,  457 
Linnit  v.  Chaf^'.-rs,  237  b,  237  c 
Lister  v.  Turner 
Littlcdale  v.  Dixon,  286 
Littlefield  v.  Shec,  70 
Llewellyn  v.  Llewellyn,  119  a 
Lloyd  V.  Crispe,  18,  20  a 

v.  Sandilands,  45 

v.  Wait,  141  a 

Lobb  v.  Stanley,  153  o,  375 
Lockwood  V.  Ewer,  100  a 
Lodge  v.  Dicas,  149  a 
Logan  V.  Hall,  71  a 
Longdon  v.  Simson,  186 
Longfellow  v.  Williams,  137 
Longman  v.  Galini,  100 
Longridge  v.  Dorville,  148 
Lopez  V.  Burslem,  368  a 
Lovat  V.  Ranelagh  (Lord),  21 
Lovick  V.  Crowder,  12 
Lowder  v.  Radnor  (Lord),  386  a 
Lubbock  V.  Tribe,  74 

Lucas  V.  Dorrein,  258 

V.  Nockells,  59  c 

Luckin  v.  Simpson,  237  a 
Ludford  v  Barber,  33  6,  446 
Lush  V.  Wilkinson,  13 
Lyde  v.  Barnard,  79 
Lynch  v.  Nurdin,  132  a 
Lynn  v.  Bruce,  148 
Lysaght  v.  Walker,  133 

Mac  Galium  v.  Mortimer,  169  a 

Mace  V.  Cammel,  10 

Macghee  v.  O'Neill,  321  b 

Macher  v.  Foundling  Hospital  (The),  18 

Mackenzie  v.  Cox,  101  a 

Mackintosh  v.  Haydon,  490  h 

V.  Marshall,  274 


The 


M'lver  V.  Humble,  505 

Mac  Lanaghan  v.  Universallns.  Co.,  862 

Maclish  V.  Ekins,  260 

Maculloch  V.  Dawes,  320  a 

Magee  v.  Atkinson,  309 

Magnay  v.  Burt,  66  b,  219  b 

Mahomed,     Aga     Kurboolie, 

Queen,  45,  46  a 
Mair  v.  Glennie,  505 
Malins  v.  Freeman,  19 
Mallan  v.  May,  169  a,  1S3,  183  6,  183 

c,  308 
Mann  v.  Shifner,  417 

V.  Stephens,  ;^7 

Manneton  v.  Trevelian,  243 
Manning's  Case,  233 
Manning  v.  Flight,  456 
Mark  v.  Densham,  331  e 
Marks  v.  Lahee,  142 

V.  Upton,  455 

Marsh  v.  Bulteel,  61 
Marshall  v.  Holloway,  186 


CASES     CITED     IN     VOL. 


Martin  v.  Daws,  3G0 

V.  Graham,  IV28 

V.  Podger,  10 

V.  Scudiunore,  14 

Martindale  v.  Booth,  11 

V.  Smith,  432  b 

Martinez  v.  Gerber,  219 
Martini  v.  Coles,  434  a 
Mason  V.  Bradley,  490  a,  490  d 

V.  Corder,  I'i 

V.  Dilchboiirne,  170 

V.  Lickbarrow,  432 

Mason  v.  Piiynter,  l(i5 
Master  v.  Miller,  490  b 
Matson  v.  Cook,  152 

V.  VVharam,  134 

Matthias  v.  Mesnard,  192 
Matthews  v.  Feayer,  13 
Maving  v.  Todd,  101 
Mayhew  v.  Eames,  102 

V.  Nelson,  102 

Mayor  v.  Steward,  441 
Mazzinghi  v.  Stephenson,  169 
Medcalfe  v,  Hodgson,  109 
Meggison  v.  Foster,  14 
Megginson  v.  Harper,  317 
Mellor  V.  Spateman,  123 
Merry  weather  v.  Nixan,  71  a 
Mestayer  v.  Bigo-s,  170 
Meux  V.  Howell,  12 
Michael  v.  Siockwith,  462,  488 
Middlecome  v.  Marlow,  13 
Middlemore  v,  Goodale,  29,  30 
Miles  V.  Bough,  63  a,  150  a 

V.  Cattle,  102 

Miller  v.  Green,  192,  193 

■ V.  Race,  463 

Milner  v.  Myers,  57 
Mills  V.  Auriol,  30 

V.  Ball,  433  a.  433  d 

V.  Fowles,  321  a 

Milnes  v.  Branch,  30,  34,  38 
Minet  v.  Gibson,  462,  471 
Minshall  v.  Lloyd,  11 
Mitchell  V.  Cragg,  59  b,  149 

V.  Ede,  434 

V.  Foster,  387  d 

■    V.  Reynolds,  37 

Mittleholzer  v.  Fullarton,  168  a 
Molliett  V.  Powell,  331  c 
Mondell  v.  Steele,  366 
Monprivatt  v.  Smith,  59  a 

Moon  V.  Whitney  Union  (Guardians  of) 

308 
Moore's  Case,  21 
Moore  v.  Boulcott,  247 

V.  Butlin,  332  b 

V.  Horner,  291 

V.  Meagher,  132  b 

V.  Mougiie,  97  a 

V.  Phillips,  237  b 


Moore  v.  Pyrke,  73 

V.  Strong,  321  a 

V.  Wilson,  102 

Moreton  v.  Harderne,  217 
Morewood  v.  VVilkcs,  12 
Morgan  v.  Brown,  3"'fl  a 

V.  Hughes,  386  a 


Worley  v.  Boothby,  136 
Morrice  v.  Hurry,  3(i6 
Morrill  v.  Stanley,  132  a 
Morris  v.  Clayton,  222 
Dixon,  323 


Morris  v.  Langdale,  132  b 

V.  Stacey;  136  a 

Mors  V.  Slew,  93,  95,  lOl,  129 
Mortimer  v.  Moore,  57 

V.  Wright,  70  b,  70  c 

Morrish  v.  Murray,  45 
Mouldsdale  v.  Birchall,  480 
Moule  V.  VVhiltenbury,  434  c 
Mounteney  v.  Andrews,  224,  227 
Moxon  V.  Atkins,  307 
Mulcarry  v.  Eyres,  19 

MuUett  V.  Hook,  291 

Munden  v.  Brunswick  (Duke  of),  368  c 

Murley  v.  Mac  Dermott,  332  a 

Muskett  V.  Hill,  38  a 

Muspratt  v.  Gregory,  193 

Mutton  V.  Young,  240  a 

Naish  V.  Tatlock,  70 
Nash  V.  Breeze,  366 
Neale  v.  Wylie,  71  a 
Nedham  v.  Beaumont,  8 
Neilson  v.  Harford,  309  a 
Nelstrop  v.  Scarisbrick,  237  b 
Newberry  v.  Armstrong,  130  a 
Newland  v.  Holmes,  328 
Newman  v.  Bendyshe,  3S6  a 

V.  Hardwicke  (Earl  of),  386  a 

V.  Newman,  169 

Newsom  v.  Thornton,  434  a 
Newsome  v.  Coles,  505,  508 
Newstead  v.  Series,  14 
Newton  v.  Stewart,  292 
Nichulls  V.  Bastard,  152 

V.  Haywood,  4S8 

V.  Lefevre,  433  a,  433  d 


Nicholson  v.  Willan,  102 
Nickisson  v.  Trotter,  100  c,  331  d 
Noble  V.  Durell,  308  b 

V.  Ken  no  way,  274,  307 

V.  King,  247  c 

Noel  V.  Hart,  134 
V.  Rich,  57 

Noke  V.  Awder,  29,  30,  38  a— 88  d 
Norcutt  V.  Dodd,  13 
Norman  v.  Cole,  64,  67 

V.  Phillips,  103  b 

Nopthey  v.  Field,  433 
Norton,  Exp.  456 


CASES     CITED     IN     VOL.     I. 


Norton  v.  Syms,  1G9 
Notts  V.  Curtis,  366 
Novelli  V.  Rossi,  490  b 
Nowell  V.  Roake,  268 
Nun  V.  Wilson,  11 
Nye  V.  Mosely,  168  b 

Oakes  v.  Wood,  59  d 
O'Brian  v.  Saxon,  56,  247 
Odell  V.  Wake,  30 
Ogle  V.  Barnes,  218 
Onslow  V.  Corrie,  30,  457 
Onslow  V.  Rapley,  112 
Oppedheim  v.  Russell,  433  d 
Osbaldiston  v.  Sinripson,  168  a 
Osborne  v.  Rogers,  69 
Osgood  V.  Stroud,  14 
Ostler  V,  Bower,  240  a 
Oswald  V.  Thompson,  237  b 
Ougier  v.  Jennings,  307 
Outhwaite  v.  Luntly,  490 
Outram  v.  Morewood,  268 
Owen  V.  Bennett,  102,  103 

V.  Body,  12 

Oxley  V.  James,  29 

V.  Watts,  65 

Paddock  v.  Forrester,  332  a 

Page  V.  Godder,  457 

Paget  V.  Perchard,  10 

Pain,  Exp.  387  c 

Painter  v.  Liverpool  Gas  Co.,  387  d 

Palmer  v.  Edwards,  28,  38  h 

V.  Ekins,  3S  c 

V.  Goden,  247  c 

V.  G.  J.  Canal  Company,  101 

Papps  V.  Webster,  168  b 
Pargeter  v.  Harris,  38  b,  38  g 
Pariente  v.  Pennell,  237/ 
Parke  v.  Edge,  331 
Parker  v.  Barker,  508 

V.  Carter,  14 

V.  Cooke,  350 

V,  G.   W.    Railway,    Company, 

1016 

V.  Riley,  59  c 

Parkhurst  v.  Forster,  52,  211 
Parkin  v.  Carruthers,  504 
Parkinson  v.  CoUiford,  227 

V.  Whitehead,  323 

Parring  v.  Harris,  105 

Parry  v.  Fairhurst,  331  a,  331  d 

V.  Nicholson,  490  d 

Parslow  V.  Baily,  146 
Parsons  v.  Gingell,  193 

V.  Lloyd,  218 

Partington  v.  Woodcock,  38  e,  317 
Partridge  v.  Bank  of  England,  258,  260 
V.  Scott,  131  a 

Pasley  v.  Freeman,  78,  79,  131 
Passenger  v.  Brookes,  67,  68 


Pater  v.  Baker,  331  e 
Paterson  v.  Powel,  270 
Patterson  v.  Tash,  407 
Pauncofort's  Case,  4 
Pawle  V.  Gunn,  70  a 
Paxton  V.  Popham,  108 
Payne  v.  Johnson,  138 
Paynter  v.  Williams,  70  a 
Peacock  v.  Purvis,  138,  194 
V.  Rhodes,  259,  463 


Pearce  v.  Morrice,  170 
Pearson  v.  Rogers,  247  c 
Pearson  v.  Skelton,  71 
Pease  v.  Hirst,  319 
Peer  v.  Humphrey,  258 
Peerless,  In  re,  387  b 
Peelers  v.  Opie,  67 
Pennant's  Case,  19 
Pelley  v.  Rose,  59,  59  c 
Penley  v.  Watts,  71  a 
Penn  v.  Ward,  59 
Pennell  v.  Attenborough,  100  c 
Penton  v.  Browne,  44 
Peppin  V.  Solomons,  328 
Perham  v.  Raynal,  319 
Perring  v.  Harris,  105 
Perry  v.  Watts,  331  6,  331  c 
Persse  v.  Persse,  14 
Peter  v.  Compton,  137 
Peters  v.  Opie,  68 
Philimore  v.  Barry,  136  a,  323 
Phillips  V.  Biggs,  71 

V.  Claggett,  292 

V.  Howgalo,  59  c 

V.  Huth,  434  a 

v.  Innis,  308 

V.  Phillips,  376 

V.  Thompson,  225 


Philpott  V.  Aslet,  376 
V.  Hoare,  21 


Phythian  v.  White,  332  a 
Picard  v.  Featherstone,  366 
Pickering  v.  Ely  (Bishop  of),  142 
Pickford   v.   G.   J.    Railway   Company, 

101  b 
Pickstock  V.  Lyster,  12 
Pierce  v.  Bartrum,  173 
Pigeon  v.  Orborne,  247  a 
Piggot  V,  Birtles,  194 
Piggott   v.    E.    C,    Railway    Company, 

131  d 
Pigot's  Case,  460,  485,  490  b 
Pigot  V.  Kemp,  .55,  56 
Pike  V.  Stephens,  237  c 
Pilkington  v.  Scott,  173,  183  d 
Pillan  v.  Van  Mierop,  481 
Pinnell's  Case,  148 
Pitcher  v.  Tovey,  30 
Pitman  v.  Maddox, 
Pitt  V.  Purssord,  73 
Place  V.  Fagg,  192 


CASES     CITED     IN     VOL.     I. 


XXV 


Planch  V.  Anderson,  131 

Plowden  v.  Thorpe,  292 

Pluck  V.  Dig-ges,  38  h 

Poor  V.  Eliason,  14 

Pole  V.  Harrobin,  168,  169 

Polhill  V.  Walter,  79 

Polkinhorn  v,  Wright,  59  c 

Pollock  V.  Stacey,  38  g,  38  h 

Pontet  V.  Basingstroke  Canal  Co.,  178 

Pontifex  v.  Bignold,  79 

Poole's  Case,  192 

Poole  V.  Dicas,  140 

V.  Hill,  308 

(Mayor  of,)  v.  White,  317  a 

Pope  V.  Biggs,  316,  317,  317  b 

V.  Skinner,  332  h 

Pordage  v.  Cole,  67,  68 

Portmore,  (Earl  of),  v.  Biinn,  34,  38  a 

Pothener  v.  Dawson,  100  a 

Pott  V.  Todhunter,  14,  170 
Potter  V.  Starkie,  238 
Poultney  v.  Holmes,  38  h 
Powell  V.  Norton,  308 
Power  V.  Barkham,  78 
Powles  V,  Page,  149  b 
Pownall  V.  Ferrand,  70  a 
Powseley  v.  Blackman,  296 
Prentice  v.  Harrison,  219  b 
Price  V.  Easton,  70 

V.  Green,  169  a,  182,  183  b,  183  c 

V.  Harwood,  45 

V.  Helyar,  238 

V.  Neale,  463 

V.  Peek,  59  d,  66  a 

V.  Shute,  463,  466,  474,  476 

V.  Williams,  308 

V.  Woodhouse,  57,  59  c 

Pride  v.  Fooks,  186 
Prince  v.  Samo,  355 

Pring  V.  Henley,  331 
Prior  V.  Hembrow,  71  b 
Pritchard  v.  Long^  61 

V.  Hitchcock,  147 

Pritt  V.  Fairclough,  140 
Proctor  V.  Sargent,  182  a 
Prodgers  v.  Langham,  14 
Prole  V.  Wiggins,  168 
Prudhomme  v.  Frazer,  331  c 
Pryce  v.  Belcher,  131 
Pugh  V.  Griffiths,  45,  46 
Purchell  v.  Salter,  58,  59  a 
Pye's  Case,  332 

Radford  v.  Smith,  247  b 
Raikes  v.  Todd,  136 
Raine  v.  Aiderson,  218 
Raitt  V.  Mitchell,  308 
Ramsay  v.  Eaton,  237  c 
Randall  v.  Rigby,  37,  448 
Randle  v.  Little,  219  c 
Rankin  v.  De  Medina,  219  b 


Rannie  v.  Irvine,  182  a 
Raphael  v.  Pickford,  103  b 
Ratcliftb  V.  Burton,  44,  45,  46 
V.  Davies,  100  a 


Rawdon  v.  Wentworth,  237  6,  237  c 

Rawlinson  v.  Clarke,  506 

Rawson  v.  Eicke,  315 

Raymond  v.  Fitch,  30 

Read's  Case,  191 

Read  v.  Brookman,  460,  488 

V.  Dunsmore,  331  d 

V.  Farr,  19,  20 

Reading  v.  Menham,  100,  309 
Reay  v.  Richardson,  149  ? 

V.  White,  149  b,  150 

Rede  v.  Barley,  193 
Reed  v.  Wilmot,  11 
Rees  V.  Petet,  319,  320 
Reeves  v.  Capper,  11,  100  c 
V.  Hearne,  150 


V.  Reeves,  14 

Reid  V.  Blades,  10,  11 

Regil  V.  Green,  247  b 

Regina  v.  Bolton,  387  b,  387 J,  387  i,  387  k 

V.  Buckinghamshire,(Justices  of), 

387  i,  387  k 

V.  Cheltenham  Paving  Commis- 
sioners, 387  k,  387  I 

V.  Clark,  387  k 

V.  Croke,  387  b 

V.  Dullingham,  116 

V.  E.  C.  Railway  Company,  3877 

V.  Entremahn,  209 

V.  Gillyard,  387  I,  387  n 

V.   Hartley   Union,    (Guardians 

of),  387  b 

V.  Hewins,  330 

V.  Ivens,  52 

v.  Lancashire,  (Justices  of),  387A 

V.  Lewis,  387  a 

V.  Lords  of  the  Treasury,  387  j 

V.  Martin,  387  b 

V.  Middlesex,  (Justices  of),  387^, 

387  m 

V.  Pitt,  117 

V.  Powell,  117 

V.  Reade,  386  a 

V.  Scot.  128 

V.  Seven  Oaks,  (Inhabitants  of), 

387  c 

V.  Spencer,  387  g,  387  i 

V.  Stoke-upon-Trent,  308 

V.  Totness,  387  d 

V.  Virrier,  248 

Rennie  v.  Robinson,  38  c 

Renno  v.  Bennett,  59  c. 

Renteria  v.  Ruding,  :i60 

Rex  V.  Abbot,  387  h 

—  V.  Agardsley,  116,  117 

—  V.  Aflen,  387  e,  387  h,  SS7j 

—  V.  Allincrton,  384 


CASES     CITED     IN    VOL.     I. 


Rex  V.  Barker,  337  a,  3S7  d 

—  V.  Bass,  387  h 

—  V.  Bat  tarns,  387  i 

—  V.  Bellamy,  387/ 

—  V.  Bennet,  ll(j 

—  V.  Berkeley,  387  i 

—  V.  Bird,  44 

—  V.  Bloxham,  387  i 

—  V.  Boughcy,  387  i 

—  V.  Boulbee,  367  h 

—  V.  Brein,  223 

—  V.  Brewers' Co.  (Masters  of),  116 

—  V.  Bristol  and  Exeter  Railway  Co., 

387/ 

—  V.  Bridger,  12 

—  V.  Cambridgeshire,    (Justices    of), 

387  i,  387  m 

—  V.  Carlisle,  219 

—  V.  Chandler,  387  c 

—  V.Cheshire,  (Justices of), 867fl, 387  J, 

387/ 

—  V.  Clarke,  387  c,  887  d 

—  V.  Coggan,  IIG 

—  V.  Cox,  181 

—  V.  Crisp,  387  c 

—  V.  Davis,  387  h 

—  V.  Dempsey,  387  e 

—  V.  Denhighsliire,  (.Justices  of ),  387m 

—  V.  Dobbyn,  387  c 

—  V.  Dodd,  504 

—  V.  Elwell,  387e 

—  V.  Fell,  387  h 

—  V.  Flounders,  397  i 

—  V.  Fuller,  387  c 

—  V.  Gage,  387  d 

—  V.  Glossop,  387  c 

—  V.  Goodenough,  387  i 

—  V.  Gravesend,  170 

—  V.  Green,  387  d 

—  V.  Gregory,  170 

—  V.  Gutch,  72  a 
Hall,  387  c,  387  rf 
Hanson,  387  h 
Harris,  387  c 
Harrison,  3b7  c 
Hartley,  506 
Hawkes,  387  e 

—  V.  Heber,  383 

—  V.  Hendon,  (Lord  of  Manor  of),  116 

—  V.  Hewes,  387  7 

—  V.  Holland,  217,217  c 

—  V.  Howe,  387 

—  V.  Hugging,  211 

—  V.  Hunt,  338,  339 

—  V.  Ipswich,  (Recorder  of),  387  h 

—  V.  James,  387  i 

—  V.  Jarvis,  387  c 

—  V.  Johnson,  387  d 

—  V.  Jukes,  387  c 

—  V.  Kent,  387  b,  387  i 

—  V.  Kite,  387  b 


Rexv.  Lancashire,  (Justices  of),  387  t 

—  v.  Leicester,  (Justices  of),  170 

—  V.  I,ovett,387(/ 

—  v.  Mallison,3S7  d 

—  V.  Manchester  and   Leeds  Rail  Co., 

387  h,  387  m 

—  V.  Marlow,  Great  (Inhabitants  of), 

387  k,  387  I 

—  V.  Marsh,  387  c,  387  e,  287 j 

—  V.  Martyn,387 

—  V.  Methuen,  387 

—  V.  Middlesex,  (Justices  of),  387 

—  V.  Mosely,  387  h 

—  V.  Nevile,  387  i 

—  V.  Nudigale,  325 

—  V.  Pagham,  121  b 

—  V.  Pearsc,  387  e 

—  V.  Penn,  387 

—  V.  Perrott,  387  c 

—  V.  Picton,  387/ 

—  V.  PuUen,  387  c 

—  V.  Kansley,  387  e 
Rennett,  116 
Robinson,  20 
Salomons,  387  e 
Searle,  286  a 
Sheffield  and  Manchester  Railway 

Company,  387  k,  387  I 

—  V.  Shrewsbury,  (Justices  of),  387  i 

—  V.  Simpson,  387  d 

—  V.  Smith,  384,  337  e 

—  V.  Somersetshire,  (Justices  of),  387/, 

387  m 

—  V.  South  Holland  Drainage  Commit- 

teemen, 317  h,  337  rn 

—  V.  Speed,  387  c 

—  V.  Stone,  384,  387  c 

—  V.  St.  James's,  Westminster,  387  /c, 

387/ 

—  V.  St.  Mary,  387  e 

—  V.  St.  Nicholas,  387  e 

—  V.  Swallow,  337  d 

—  V.  Symons,  337  a 

—  V.  Taylor,  209 

—  V.  Theed,  334 

—  V.  Thompson,  387  e 

—  V.  Treble,  490  a 

—  V.  Trelawney,  387  c 

—  V.  Venables,  384 

—  V.  Vipont,  387  d 

—  V.  Warneford,  387  e,  337  j 

—  V.  Wheatman,  387  b 

—  V.  Wilson,  387,  383  h 

—  V.  Wilt.^hire,  387</,  387e 

—  V.  Yorkshire,  West  Riding  (Justices 

of),  387  A,  387 /c 
Rew  V.  Pettat,  320  c 
Reynolds  v.  Blackburne,  59  a 

V.  Clarke,  211 

Riby  V.  Grove,  505 
Rich  V.  Coe,  500 


CASES    CITED    IN    VOL.    I. 


XXVU 


Rich  V.  Kneeland,  101 
Richards,  In  re,  ^87  a 
Richardson  v.  Evans,  18 

V.  Goss,  43:3  a 

V.  Hill,  70 

V.  Horton,  13 

Riches  v.  Evan.-,  11,  12 

Richmond  v.  Smith,  51 

Rickards  v.  Murdock,  278,  282,284,285, 

286 
Ricketts  v.  Sol  way,  332  a 
Riddell  v.  Pakeman,  218 
Ridgway  v.  Philip,  503 
Riley  v.  Home,  101 
Rix,  In  re,  387  e 
Roach  V.  Thompson,  70  e 

V.  Wadham,  31 

Roberts  v.  Barker,  307,  309 

V.  Bate,  292 

V.  Davy,  19,  20 

V.  Harnage,  356 

V.  Sneil,  331  d 

V.  Taylor,  66  a 

V.  Wright,  366 

Robertson  v.  Clarke,  307 

V.  Jackson,  308 

Robinson  v.  M'Donnell,  11 

V.  Raley,  56 

V.  Waller,  50 

V.  Wilkinson,  504 

Robson  V.  Douglas,  152 
Roe  V.  Galliers,  21 

V.  Harrison,  18,  20  a 

V.  Hayley,  29 

V.  JWitton,  14 

V.  Read,  295 

V.  Sales,  20 

Rodgers  v.  Man,  73 
Rogers  v.  Allen,  331/ 

V.  Humphreys,  28,  317 

V.  Imbledon,  218 

V.  Parry,  174 

— V.  Shillibeer,  78 

Rohrs  V.  Sessions,  366 
Rooth  V.  Wilson,  99 
Roper  V.  Kirkbeck,  490  a 
Roret  V.  Lewis,  131  b 
Roscorla  v.  Thomas,  70  d 
Rose  V.  Pickt'ord,  433  a 
Rosewell  v.  Prior,  211 
Rosling  V.  Muggeridge,  150 
Ross  V.  Hill,  lUl  b 
Rothwell  V.  Timbrel],  237  c 
Routledge  v.  Abbott,  332  a,  332  b 
Rowley  v.  Home,  102 
Rudge  V.  Birch,  480 

V.  (jrand  Junction  Co.  131 

Russell  V.  Hammond,  13 

V.  Langstaffe,  415,  463 

V.  Moseley,  136  a 

Ryal  V.  Rolle,  100  c 


Ryde  V.  Curtis,  136  a 

Sadler  v.  Nixon,  71  b 

Sain.sbury    v.    Matthews,   328,   831    a, 

331  d 
Saint  Cross,  (The  Master  of),  v.  Lord 

Howard  de  Waldcn,  308  b 
Samuel  v.  Duke,  46  d 
Sanders  v.  Wigston,  209 
Sands  &  Another  v.  Ledger,  325 
Santler  v.  Heard,  366 
Sapsford  v.  Fletcher,  73 
Sargent  v.  Morris,  103 
Saunders  v.  Cremar,  136  c 

V.  Wakefield,  1-36,  323 

Saunderson  v.  Jackson,  136  c,  144 
Savage,  qui  tain  v.  Smith,  325,  327 
Savignac  v.  Cuffe,  294,  400,  427 

V.  Roome,  218,  219 

Say  &  Scale  (Lord),  v.  Stephens,  113 
Saxby  v.  Kirkus,  247,  247  c 

V.  Wilkin,  332  b 

Saxon  V.  Castles,  339 
Scaife  v.  Tobin,  260 
Scarborough  v.  Borman,  184 
Scarfe  v.  Morgan,  169  6 
Schild  V.  Kilpin,  59,  59  c 
Schlencker  v.  Moxey,  73 
Scholey  v.  Walton,  320  b,  321  a 
Schreiber  v.  Creed,  37 
Scott  V.  Bell,  14 

V.  Chappelow,  59,  59  b 

V.  Petit,  433  a 

Seaborne  v.  Maddy,  70  b 
Sedgworth  v.  Overend,  292 
Seers  v.  Hind,  21 

Selby  V.  Bardons,  5-5,  247 
Semple  v.  Pink,  136 
Senior  v.  Armitage,  306 
V.  Butt,  133 


Serjeant  v.  Chafy,  331  b,  331  d 
Shackell  v.  Rosier,  72,  169  a 
Shakespeare's  case,  332  c 
Sharps  v.  Grey,  101 
Shaw  V.  Bean,  12 

V.  Rhodes,  186 

Shearm  v.  Burnard,  59  c 
Shears  v.  Rogers,  10,  13 
Sheen  v.  Rickie,  339 
Sheere  v.  Brookes,  45 
Shepherd  v,  Kain,  78 
Sheppard  v.  Gosnold,  128 
Shiells  V.  Blackburn,  97  «,  103 
Shillibeer  v.  Glynn,  96 
Shipley  V.  Kymer,  434  a 
Shipton  V.  Casson,  150 
Short  V.  Kalloway,  70  e 
Shortrede  v.  Cheek,  136  a 
Shott  V.  Sreatfield,  507 
Shrewsbury  v.  Blount,  78,  79 
Shute  V.  Hornsey,  327 


CASES     CITED    IN    VOL.     I 


Sibley  v.  Fisher,  490  d 

Siboni  v.  Kirkman,  248 

Sibree  v.  Tripp,  146,  147,  149,  150 

Siffken  V.  Wrey,  432  c 

Sisfourney  v.  Lloyd,  252 

Silk  V.  Browne,  296 

Simons  v.  Lloyd,  59  c 

Simpson  v.  Clayton,  2S,  20 

Simpson  v.  Ilartopp,  193 

V.  Howden  (Lord),  168  a 

Sims  V.  Simson,  237 

V.  Thomas,  13 

Simson  v.  Butcher,  19 
Skaife  v.  Jackson,  148 
Skeate  v.  Beale,  70 
Skey  V.  Carter,  237  h 
Skinner  v.  Gunton,  131  b 
Skutt  V.  Woodward,  249 
Slack  V.  Sharpe,  456 
Slater  V.  Barker,  211,  214 

V.  West,  263 

Sleat  V.  Fagg,  102 

Sloman  v.  Cox,  490  a 

Slubey  v.  Hay  ward,  433  c 

Sly  V.  Finch,  227 

Small  V.  Moate,  433  d 

Smartle  v.  Williams,  13,  295,  297 

Smith  V.  Alexander,  376 

V.  Brandram,331  a^  331  d,Z2,l  e 

V.  Compton,  70  e 

V.  Cox,  339 

V,  Dixon,  247 

V.  Dobson,  132  a 

V.  Eggington,  66  b 

V.  Elkins,  366 

V.  Garland,  13 

V.  Goodwin,  65,  218,  219 

V.  Goss,  433  fl,  433  d 

V.  Grashaw,  129 

. V.  Home,  102 

V.  Knowelden,  331  a,  331  e 

V.  Mawhood,  168  a,  169  h 

V.  Mi!les,237/ 

V.  Monteilh,  149  a 

V.  Pilkington,  317  c 

V.  Royston,  332  b 

V.  Smyth,  183  c 

V.  Walton,  308 

V.  Watson,  506 

V.  Westall,  143 

V.  Wilson,  308  a 

Snee  c.  Prescott,  393,  401,  431,  434 
Snelling  v.  Huntingfield  (Lord),  144 
Snow  V.  Peacock,  263 

V.  Saddler,  261,  263 

Solomons  v.  Bank  of  England,  259 
V.  Nissen,  416 

Solley  V.  Neish,  58 
Sorsbie  v.  Park,  292 
Souch  V.  Strawbridge, 


South  Sea  Company  v.  Duncombe, 
100  c 

Southampton  v.  Hertford,  186 

Southampton  Dock  Company  v.  Rich- 
ards, 170 

Southcote's  Case,  83,  84,  85,  88,  90 

Southee  v.  Denny,  331  c,  331  e 

Southerton  v.  Whitlocke,  376 

Sowell  V.  Champion,  219 

Spalding  v.  Ruding,  435 

Speake  v.  Richards,  227 

Spencer  v.  Billing,  508 

V.  Boyes,  30 

V.  Marlborough  (Duke  of),  185 

V.  Parry,  74 

Spicer  v.  Cooper,  308 

Stackpoole  v.  Stackpoole,  14 

Stackwood  v.  Dunn,  292 

Spieres  v.  Parker,  387  c 

Sprowle  V.  Legge,  309 

Spurgeon  v.  Collier,  14 

Stafford  v.  Clarke,  268 

Stammers  v.  Yearsley,  60 

Standen  v.  Bullock,  613 

V.  Christmas,  28 

Stansell  v.  Jollard,  131  c 

Stanway  v.  Hislop,  366 

Stapp  V.  Lill,  136  a 

Stead  V.  Moon,  170 

Steel  V.  Brown,  11 

Sreerman  v.  Thompson,  376 

Steinman  v.  Magnus,  150 

Stennell  v.  Hogg,  243 

Stephen  v.  Olive,  12 

Stephens  v.  De  Medina,  308 

V.  Wilkinson,  422  a 

Stericker  v.  Barker,  339 

Sterling  v.  Turner,  111 

Steuart  v.  Wilkins,  78 

Stevens  v.  Underwood,  247 

Stevenson  v.  Lambard,  365 

Stewart  v.  Aberdein,  308 

V.  Bell,  274 

V.  Cauty,  308 

Stobart  v.  Dryden,  142 

Stockdale  v.  Dunlop,  138 

V.  Hansard,  133 

Stoddart  v.  Barker,  332  6 

Stokes  V.  La  Riviere,  400 

V.  Lewis,  70 

V.  Russell,  31,  317  c 

Stonehouse  v.  Elliott,  218 

Storr  V.  Scott,  134 

Stoveld  V.  Hughes,  433  a 

Strange  v.  Witney,  263 

Stratton  v.  Rastall,  148 

Strickley  v.  Butler,  21 

Stuart  V.  Nicholson,  182 

Stubbs  V.  Parsons,  75,  76 

V.  Lainson,  247 


OASES    CITED     IN     VOL.     I. 


XXIZ 


Sturgeon  v.  Wingfield,  33  a 
Sullivan  v.  Montague,  489 
Sutton  V.  Buck,  152 

V.  Mitchell,  103 

V.  Tatham,  70,  303 

Swain  v.  Shepherd,  103 
Swann  v.  Phillips,  81 
Sweet  V.  Lee,  138 
Sykes  v.  Dixon,  138,  144 
Symonds  v.  Dimsdale,  387  m 
Symonds  v.  Page,  269 
Symons  v.  Knox,  328 

Tanner  v.  Scovell,  433  c 
Tarback  v.  Marbury,  12,  13 
Taten  v.  Chaplin,  29 
Tatlock  V.  Harris,  464,  466 
Taylor  v.  Baker,  147 

V.  Clemson,  387  b 

V.  Cole,  60,  61 

V.  Dennie,  339 

V.  Henniker,  131  d 

V.  Kymer,  260,  434  «,  434  e 

V.  Mosley,  490  a 

V.  Needham,  38  b 

V.  Shum,  30 

V.  Trueman,  260 

V.  Young,  456 

V.  Zamira,  72,  73 

Teal  V.  Auty,  145 

Thames  Haven  Dock  Com.  v.  Rose,  170 
Thelusson  v.  Woodford,  185 
Thomas  v.  Cook,  71  a,  135  a 

V.  Day,  101 

V.  Harries,  65 

V.  Heathorn,  148 

V.  Pemberton,  457 

V.  Shillibeer,  69 

Thompson  v.  Doming,  434 

V.  Farmer,  434 

V.  Gibson,  217 

V.  Lacy,  52 

V,  Mashiter,  192 

V.  Percival,  149  a 

Thomson  v.  Harvey,  161 

V.  Small,  434 

Thornton  v.  Illingvvorth,  377 
Thorpe  v.  Hooke,  248 

V.  Plowden,  292 

V.  R.  E.  A.  Company,  286  a 

V.  Thorpe,  420 

Thunder  v.  Belcher,  295,  297 
Thurman  v.  Wild,  247 

Thursby  v.  Plant,  27(  30,  36,  45,  442 
Tibbatts  v.  Yorke,  339 
Tidmarsh  v.  Grover,  490  a 
Tindall  v.  Bell,  70  e 
Tipper  v.  Bicknell,  70 
Tippets  V.  Heane,  321  a 
Tomlinson  v.  Gell,  135  a 
Tooke  V.  HoUingworth,  432  a 


Tooker  v.  Beaufort  (Duke  of),  147 
Topham  v.  Dent,  457 
Toulmin  v.  Anderson,  150  a 
Touissaint  v.  Martainant,  70  a,  70  d 
Townley  v.  Macgregor,  81 
Townsend  v.  Westacott,  12 

V.  Wyndham,  13 

Tregoning  v.  Attenborough,  169  b 
Trelawney  v.  Winchester,  (Bp.  of),  147 
Trenlham  v.  Deverill,  321  b 
Treuttel  v.  Barandon,  259 
Trevillian  v.  Pyne,  152 
Trimbey  v.  Vignier,  367 
Trower  v.  Chadwick,  131  d 
Trueman  v.  Fenton,  79  b,  71 

V.  Lodor,  309,  309  a 

Tuck  V.  Fyson,  456 

V.  Tuck,  332  b 

Tucker  v.  Tucker,  480 

V.  Wilson,  100  a 

Tullett  v.  Armstrong,  184 
Tulley  V.  Sparkes,443 
Tulloch  v.  Dunn,  320  b 

V.  Hartley,  368  b 


Turner  v.  Davies,  71  a 

V.  Felgate,  224 

'  V.  Richardson,  457 
V.  Vaughan,  168  b 


Turnley  v.  M'Gregor,  247  6 
Turquand  v,  Hawlrey,  237  c 

V.  Vanderplank,  237/ 

Twynam  v.  Pickard,  28 

Udall  V.  Walton,  237  e 
Udhe  V.  Walters,  307 
Unwin  v.  Leaper,  154 

V.  St.  Quintin,  237  c 


Upton  V.  Bassett,  14 
Urmston  v.  Newcoman,  70  6 
Uther  V.  Rich,  263  b 

Vallance  v.  Dewar,  274,  307 
V.  Savage,  316 


Vallejo  V.  Wheeler,  307 
Valpy  V.  Gibson,  433  b 
Vanderhagen  v.  Re  wise,  222 
Vanderzee  v.  Willis,  100  a 
Vardy,  Exp.,  456 
Vaughan  v.  Menlove,  131  d,  263 
V.  Wilson,  150  a 


Veitch  V.  Russell,  70  c 
Vere  v.  Smith,  100  a,  101 
Vernon  v.  Hankey,  238 
V  Smith,  29 


Vicars  v.  Wilcox,  132  b 
Victor  V.  Davies,  70  a 
Villers  v.  Beaumont,  14 
Vinkinstone  v.  Ebden,  190 
Vivian  v.  Jenkins,  57 
Vooght  V.  Winch,  268 
Vyvyan  v.  Arthur,  29 


CASES     CITED     IN     VOL.     I. 


Waddilove  v.  Barnett,  316,  317  6 
Wade's  Case,  2(I'J 
Waciham  v.  Marlowp,  440,  442 
Wain  V.  Warlters,  135  a,  137,  144 
Wain  man  v.  Kinman,  32 1  a 
Wainwright  v.  Bland,  355 
Waile  V.  Jone?,  IGi)  a 
Wakenian  v.  Sntton,  133 
Walker's  Case,  440,  443 
Walker  v.  Hatton,  70  e,  71  a 

V.  Jachson,  101  b,  103  c 

V.  Perkins,  IfciS  }> 

V.  Richardson,  169 

V.  Rostroii,  70  d 

V.  Willoui^hbv,  45 

Wallace  v.  TcW\r,  96 
Waller  v.  Lacy,  321  b,  321  c 

V.  Smith.  100  a,  100  c 

Wallis  V.  Day,  183,  183  «/ 

V.  Goddard,  248 

V.  Harrison,  293 

Walsh  V.  Rose,  194 
Walter  v.  Cubley,  490  b 

V.  Hanger,  123 

Walton  V.  Hastings,  69,  90 

Wannell  v.  City  of  London  (Chamber- 
lain of),  173 
Warburton  v.  Ivie,  38  h 

V.  Lovcland,  14 

Ward's  Case,  468 
Ward  V.  Byrne,  183  h 

V.  Lloyd,  168  a 

V.  Pearson,  331  d 

V.  Weeks,  132  b 

Warren  v.  Consett,  441 
Warrick  v.  Rogers,  490  b 
Washbourne  v.  Burrows,  247  a 
Waters  v.  Ogden,  248 

V.  Tompkins,  321  &,  321  c 

Watkins  v.  Birch,  10 

V.  Tower,  366 

Watson,  Exp.,  506,  507 

V.  Bodell,  219  b 

V.  Tnrner,  70  b 

V.  Wilks,  59  a 

Watt  V.  Daniel,  366 
Watters  v.  Smith,  148 
Watts  V.  Ball,  248 
Waugh  V.  Bnssell,  490  d 

V.  Cope,  321  a 

Way  V.  Bassett,  320,  320  a 

V.  Yallay,  356 

Weaver  v.  Ward,  214 
Webb,  In  re,  101 

V.  Austin,  33  a,  38  e 

V.  Boil,  191 

V.  Jio'gs.  448 

V.  PaVi  102 

V.  Plummer,  306 

V.  Rhodes,  76 

V.  Russell,  28,  29,  31,  317  c 


Webb  V.  Weatherby,  247 

V.  Webb,  186 

Webster  v.  De  Tastet,  276 
Weeton  v.  Woodcock,  218 
Wells  V,  Horton,  144 

V.  Ody,  215,  216 

Welsh  V.  Myers.  457 

V.  Hopkins,  328 

Wenham  v.  Fowle,  150 
Wennall  v.  Adney,  70  d 
Wentworlh  v.  Biillen,  131  b 

V.  Oiithwaitc,  432  a,  432  b 

West  V.  Nibbs,  217,  219 

V.  Skipp,  12 

V.  Small  wood,  219  b 

V.  Steward,  490  c 

Westbeer's  Case,  333 
Westbury  v.  Powell,  119 
Westzinthus,  In  re,  435 
Wetherall  v.  Geering,  21 
Whatman  v.  Gibson,  37 
VVheatley  v.  Golney,  292 

V.  Patrick,  218 

Wheeler,  Exp.,  504     ' 

V.  Bramah,  457 

V.  Branscombe,  317  a 

V.  JNlontefiore,  296 

Whitcombe  v.  Lee,  136 
White's  Case,  209 

White  V.  Hawkins,  295,  313 

V.  Reeve,  247 

V.  Sayer,  302,  303,  307 

V.  Spetligue,  132  b 

V.  Stringer,  14 

V.  Stubbs,  55 

V.  Wiltshire,  44,  46, 

Whitehead  v.   Angerson,  433  a,  433  b 

433  d 

V.  Greetham,  96 

V.  Walker,  59  a 

Whitmore  v.  Green,  237  b 

V.  Robertson,  237  b 

Whittaker  v.  Hales,  295,  296 

V.  Howe,  182,  182  «,  182  b 

V.  Mason,  57,  58 

Whitten  v.  Peacock,  28,  38  a,  38  c,  38 

d,  38  e 
Whitwell  V.  Sheer,  331  c 
Wigg  V.  Shuttleworth,  169  a 
Wightman  v.  Townroe,  504 
WiFbraham  v.  Snow,  46  d,  228 
Wiles  V.  Cooper,  387  b 
Wilkes  V.  Broadbent,  303 

V.  Parkes,  150  a 


Wilkins  v.  Ormsby,  13 
Wilkinson  v.  Byers,  148 

V.  Ciiverdale,  96 

V.  Frasier,  505,  506 

V.  Hall,  296  o 

V,  Johnson,  490  b 

Williams's  Case,  110 


CASES     CITED     IN     VOL.      I. 


Williams  v.  Burrell  30,  33  g 

V.  Gesse,  52 

V.  Holland,  21? 

V.  l.eaper,  260 

V.  Moor,  70  b 

V.  IMoore,  377 

V.  Mostyn,  131 

V.  Oglo,  332  c 

Williamson  v.  Alli.-on,  78,  326,  332 

V.  Thompson,  259 

Willis  V.  Nevvham,  321 
Wilmhurst  v.  Bowker,  432 
Wilson  V,  Butler,  208 

V.  Brett,  98.  99,  104 

■ V.  Cutting,  71 

V.  Dickson,  103 

V.  Lainson,  332 

V.  Muskett,  168  b 

V.  Lewis,  59  d 

V.  R.  E.  A.  Company,  276 

V.  Tummon,  153 

V.  Wilson,  168/; 

V.  Whiteliead,  507 

Winch  V.  Keeley,  480 

Windsor,  Dean  and  Chapter    of,  their 

case,  29 
Windsor,  Dean  and  Chapter  of,  v.  Cover, 

24 
Wing  V.  Earle,  308 

V.  Mill,  70 

Wingate  v.  Waite,  387  b 
Winsmore  v.  Greenbank,  131 
Winterbourne  v.  INlorgan,  66 
Wintle  V.  Crowther,  504 
Wiseman  v.  Vandeputt,  402,  428,  431 
Wish  V.  Small,  405 

Withal's  Case,  332 
Withington  v.  Herring,  507 
Wolley  V.  Idle,  173 
Wood  V.  Benson,  136,  169 
V.  Clark,  193  b 


Wood  V.  Curling,  101  a 

V.  Dixie,  12 

V.  Grimwood,  217 

V.  Peyton,  247  a 

V.  Roberts,  150 

V.  Rowel iffe,  434  c 

Woods  V.  Durrant,  59  d,  61 
Woodward  v.  Walton,  219 
Wookey  v.  Pole,  292 
Wollaston  v.  Hakewill,  21 
Wootten  V.  Steffenoni,  29 
Worth  V.  Terrington,  38  e,  59  c 
Worthinglon  v.  Grimsditch,  321  a 
V.  Wigley,  148 


Wright  V.  Acres,  149 

V.  Burroughs,  23 

V.  Campbell,  392,  395,  397,399, 

424,  427 

V.  Crookes,  78 

V.  Dewes,  192,  194 

V.  Inshaw,  490  « 

V.  Snell,  102 

V.  Walts,  247  c 


Wrightson  v.  Pullen,  505 
Wyatt  V.  Blades,  238 

V.  Harrison,  131 

V.  Hodgson,  319,  320 

Wyld  V.  Pickford,  93,  101  b,  102,  103 
Wyrie  v.  Stapleton,  268 

Yarmold  v.  Moorhouse,  21 
Yearsley  v.  Heane,  219  b 
Yeates  v.  Pym,  309 
York  V.  Grindstone,  52 
Youde  V.  Youde,  366 
Young  V.  Axtell,  498,507 

V.  Marshall,  240 

V.  Timmins,  182 

V.  Wright,  332 

Zwinger  v.  Samuda,  258 


TWINERS    CASE. 


MICH.  44  ELIZ.— IN  THE  STAR-CHAMBER. 

[REPORTED  8  COKE,  80.] 

What  transactions  are  fraudulent  within  st.  13  Eliz.  c.  5,  and  27  Eliz.  c.  4. 

In  an  information  by  Coke,  tlie  Queen's  Attorney-General,  against  Twyne 
of  Hampshire,  in  the  Star-Chamber,(a)   for  making  and  publishing  of  a 
fraudulent  gift  of  goods.     The  case  on  the  stat  of  13  Eliz.  c.  5,  was  such  : 
Pierce  was  indebted  to  Twyne  in  400/.,  and  was  indebted  also  to  C.  in 
200?.     C.  brought  an  action  of  debt  against  Pierce,  and  pending  the  writ, 
Pierce,  being  possessed  of  goods  and  chattels  of  the  value  of  SOOl.,  in  secret 
made  a  general  deed  of  gift  of  all  his  goods  and  chattels,  real  and  personal 
whatsoever,  to  Twyne,  in  satisfaction  of  his  debt;   notwithstanding  that 
Pierce  continued  in  possession  of  the  said  goods,  and  some  of  them  he  sold ; 
and  he  shore  the  sheep  and  marked  them  with  his  own  mark ;   and  after- 
wards C.  had  judgment  against  Pierce,  and  had  a  fieri  fiicias  directed  to  the 
sheriff  of  Southampton,  who  by  force  of  the  said  writ  came  to  make  execu- 
tion of  the  said  goods ;  but  divers  persons,  by  command  of  the  said  Twyne, 
did  with  force  resist  the  said  sheriff,  claiming  them  to  be  the  goods  of  the 
said  Twyne  by  force  of  the  said  gift;  and  openly  declared  by  the  command- 
ment of  Twyne,  that  it  was  a  good  gift,  and  made  on  a  good  and  lawful 
consideration.     And  whether  this  gift,  on  the  whole  matter,  was  fraudulent 
and  of  no  effect  by  the  said  act  of(6)  13  Eliz.  or  not,  was  the  question.    And 
it  was  resolved  by  Sir  Thomas  Egerton,  Lord  Keeper  of  the  Great  Seal,  and 
by  the  Chief  Justice  Popham  and  Anderson,  and  the  whole  court  of  the  Star- 
Chamber,  that  this  gift  was  fraudulent,  within  the  statute  of  13  Eliz.    And 
in  this  case  divers  points  were  resolved  : 

(a)  Moor,  638.     Lane, -^  4,  45,  47.     Co.  Lit.  3,  b,  76,  a.  290,  a.     3  Keb.  259.     Seethe 
Stat.  27  Eliz.  cap.  4. 

(6)  5  Co.  60,  a,  b.  6  Co.  18,  b.  10  Co.  56,  b.  3  Inst.  152.  Co.  Lit.  3,  b,  76,  a,  290, 
a,  b.  13  El.  0.  5.  2  Leon.  8,  9,  47,  223,  308,  309.  3  Leon.  57.  Latch,  222.  2  Rol. 
Rep.  493.  Palm.  415.  Cr.  El.  233,  234,  645,  810.  Cro.  Jac.  270,  271.  Dy.  295,  pi.  17, 
351,  pi.  23.  2Bulst.  226.  Rastal,  Entries,  207,  b.  Lane,  47, 103.  Hob.  72,  166.  Moor, 
633.  Doct.  pla.  200.  Yelv.  196,  197.  1  Brownl.  111.  Co.  Ent.  162,  a. 
Vor,.  T.— 3 


34  smith's    leading   cases. 

r«on  *!•  That  this  gift  had  the  signs  and  marks  of  fraud,  because  the  gift 
L  -^  is  general,  without  exception  of  his(c)  apparel,  or  any  thing  of  neces- 
sity;  for  it  is  commonly  said,  quodid)   dolosus  versatur  in  generalihus. 

2.  The  donor  continued  in  possession,  and  used  them  as  his  own;  and  by 
reason  thereof  he  traded  and  trafficked  with  others,  and  defrauded  and  de- 
ceived them. 

3.  It  was  made  in  secret,  et  dona  clandestina  sunt  semper  suspiciosa. 

4.  It  was  made  pending  the  writ. 

5.  Here  was  a  trust  between  the  parties,  for  the  donor  possessed  all,  and 
used  them  as  his  proper  goods,  and  fraud  is  always  apparelled  and  clad  with 
a  trust,  and  trust  is  the  cover  of  fraud. 

6.  The  deed  contains,  that  the  gift  was  made  honestly,  truly,  and  hona 
fide ;  et  clnusulse  incoiisuet'  semper  inducunt  suspicionem. 

Secondly,  it  was  resolved,  that  notwithstanding  here  was  a  true  debt  due 
to  Twyne,  and  a  good  consideration  of  the  gift,  yet  it  was  not  within  the 
proviso  of  the  said  act  of  13  Eliz.,  by  which  it  was  provided,  that  the  said 
act  shall  not  extend  to  any  estate  or  interest  in  the  lands,  &c.,  goods  or 
chattels,  made  on  a  good  consideration  and  bona  fide ;  for,  although  it  is  on 
a  true  and  good  consideration,  yet  it  is  not  bona  fide,  for  no  gift  shall  be 
deemed  to  be  bona  fide  within  the  said  proviso  which  is  accompanied  with 
any  trust.  As  if  a  man  be  indebted  to  five  several  persons  in  the  several 
gums  of  20Z.,  and  hath  goods  of  the  value  of  20^.,  and  makes  a  gift  of  all  his 
goods  to  one  of  them  in  satisfaction  of  his  debt,  but  there  is  a  trust  between 
them,  that  the  donee  shall  deal(e)  favourably  with  him  in  regard  of  his  poor 
estate,  either  to  permit  the  donor,  or  some  other  for  him,  or  for  his  benefit, 
to  use  or  have  possession  of  them,  and  is  contented  that  he  shall  pay  him 
his  debt  when  he  is  able,  this  shall  not  be  called  bona  fide  within  the  said 
proviso ;  for  the  proviso  saith  on  a  good  consideration,  and  bona  fide ;  so  a 
good  consideration  does  not  suffice,  if  it  be  not  also  bona  fide.  And  there- 
fore, reader,  when  any  gift  shall  be  to  you  in  satisfaction  of  a  debt,  by  one 
who  is  indebted  to  others  also ; — 1.  Let  it  be  made  in  a  public  manner,  and 
before  the  neighbours,  and  not  in  private,  for  secrecy  is  a  mark  of  fraud. 

.  0-,  2.  Let  the  goods  and  chattels  be  appraised  by  good  *people  to  the 
L  J  very  value,  and  take  a  gift  in  particular  in  satisfaction  of  your  debt. 
3.  Immediately  after  the  gift,  take  the  possession  of  them;  for  continuance 
of  the  possession  in  the  donor  is  the  sign  of  trust.  And  know,  reader,  that 
the  said  words  of  the  proviso,  on  a  good  consideration,  and  bona  fide,  do  not 
extend  to  every  gift  made  bona  fide;  and,  therefore,  there  are  two  manner 
of  gifts  on  a  good  consideration,  scil.  consideration  of  nature  of  blood,  and 
a  valuable  consideration.  As  to  the  first  in  the  case  before  put,  (Cr.  Jac. 
127.  Palm.  214;)  if  he  who  is  indebted  to  five  several  persons,  to  each 
party  in  20/.,  in  consideration  of  natural  aff'ection  gives  all  his  goods  to  his 
son,  or  cousin,  in  that  case,  forasmuch  as  others  should  lose  their  debts,  &c., 
which  are  things  of  value,  the  intent  of  the  act  was,  that  the  consideration 
in  such  cases  should  be  valuable ;  for  equity  requires  that  such  gift,  which 
defeats  others,  should  be  made  on  as  high  and  good  consideration  as  the 
things  which  are  thereby  defeated  are ;  and  it  is  to  be  presumed  that  the 

(c)  Godb.  308.  {d)  2  Bulstr.  226.     2  Co.  34,  a.     1  Rol.  Rep.  157.     Moor,  321. 

((?)  Goldsb.  161. 


twyne'scase,  35 

father,  if  be  had  not  been  indebted  to  others,  would  not  have  dispossessed 
himself  of  all  his  goods,  and  subjected  himself  to  his  cradle;  and  therefore 
it  shall  be  intended,  that  it  was  made  to  defeat  his  creditors  ;  and  if  consi- 
deration of  nature  of  blood  should  be  a  good  consideration  within  this  pro- 
viso, the  statute  would  serve  for  little  or  nothing,  and  no  creditor  would  be 
sure  of  his  debt.  And  as  to  the  gifts  made  bona  fide,  it  is  to  be  known,  that 
every  gift  made  bona  fide,  either  is  on  a  trust  between  the  parties,  or  with- 
out any  trust ;  every  gift  made  on  a  trust  is  out  of  this  proviso ;  for  that 
which  is  betwixt  the  donor  and  donee,  called(y)  a  trust  per  nomen  spccio- 
sum,  is  in  truth,  as  to  all  the  creditors,  a  fraud,  for  they  are  thereby  defeated 
and  defrauded  of  their  true  and  due  debts.  And  every  trust  is  either 
expressed,  or  implied ;  an  express  trust  is,  when  in  the  gift,  or  upon  the 
gift,  the  trust  by  word  or  writing  is  expressed  :  a  trust  implied  is,  when  a 
man  makes  a  gift  without  any  consideration,  or  on  a  consideration  of  nature, 
or  blood  only :  and  therefore,  if  a  man,  before  the  statute  of  27  H.  8,  had 
bargained  his  land  for  a  valuable  consideration  to  one  and  his  heirs,  by 
which  he  was  seised  to  the  use  of  the  bargainee;  and  afterwards  the  bar- 
gainor, without  a  consideration,  enfeofi^ed  others,((/)  who  had  no  notice  of 
the  said  bargain;  in  this  case  the  law  implies  a  trust  and  confidence,  and 
they  shall  be  seised  to  the  use  of  the  bargainee;  *so  in  the  same  r-^j^-i 
case,  if  the  feoffees,  in  consideration  of  nature  or  blood,  had  without  a  L  -^ 
valuable  consideration  enfeoffed  their  sons,  or  any  of  their  blood,  who  had 
no  notice  of  the  first  bargain,  yet  that  he  shall  not  toll  the  use  raised  on  a 
valuable  consideration  ;  for  a  feoffment  made  only  on  consideration  of  nature 
or  blood,  shall  not  toll  an  use  raised  on  a  valuable  consideration,  but  shall 
toll  an  use  raised  on  consideration  of  nature,  for  both  considerations  are  m 
sequali  jure,  and  of  one  and  the  same  nature.    (2  Roll.  779.) 

And  when  a  man,  being  greatly  indebted  to  sundry  persons,  makes  a  gift 
to  his  son,  or  any  of  his  blood,  without  consideiation,  but  only  of  nature, 
the  law  intends  a  trust  betwixt  them,  sell.,  that  the  donee  would,  in  conside- 
ration of  such  gift  being  voluntarily  and  freely  made  to  him,  and  also  in 
consideration  of  nature,  relieve  his  father,  or  cousin,  and  not  see  him  want 
who  had  made  such  gift  to  him,  vide  33  H.  6.  33,  (7  Co.  39,  b.,)  by  Prisot, 
if  the  father  enfeoffs  his  son  and  heir  apparent  within  age  bona  fide,  yet  the 
lord  shall  have  the  wardship  of  him :  so  note,  valuable  consideration  is  a 
good  consideration  within  this  proviso;  and  a  gift  made  bona  fide,  is  a  gift 
made  without  any  trust  either  expressed  or  implied  :  by  which  it  appears, 
that  as  a  gift  made  on  a  good  consideration,  if  it  be  not  also  bona  fide,  is 
not  within  the  proviso;  so  a  gift  made  bona  fide,  if  it  be  not  on  a  good  con- 
sideration, is  not  within  the  proviso ;  but  it  ought  to  be  on  a  good  conside- 
ration, and  also  bona  fide. 

To  one  who  marvelled  what  should  be  the  reason  that  acts  and  statutes 
are  continually  made  at  every  parliament  without  intermission,  and  without 
end ;  a  wise  man  made  a  good  and  short  answer,  both  which  are  well  com- 
posed in  verse. 

Quaeritur,  ut  cresciint  tot  magna  volumina  legis? 
In  proniptu  causa  est,  crescit  in  orbe  dolus. 

And  because  fraud  and  deceit  abound  in  these  days  more  than  in  former 

(/)  6  Co.  72,  b. 

{g)  See  Stat.  1  Rich.  3,  cap.  1,  and  Sanders  on  Uses,  4lh  ed.  p.  23.    2  Roll.  779. 


36  SMITU'SLEADING     CASES. 

timeS;  it  icas  resolved  in  this  case  hi/  the  whole  coiirt,  that  all  statutes  made 
against  fraud  should  be  liberally  and  beneficially  expounded  to  suppress  the 
fraud.  Note,  reader,  according  to  their  opinions,  divers  resolutions  have 
been  made. 

Between  Pauncefoot  and  Blunt,  in  the  Exchequer  Chamber,  Mich.  35  &  3G 
f.  -,  Eliz.,  (Lane,  44,  45,)  the  case  was  :  Pauncefoot  *being  indicted  for 
L  -'  recusancy,  for  not  coming  to  divine  service,  and  having  an  intent  to 
flee  beyond  sea,  and  to  defeat  the  Queen  of  all  that  might  accrue  to  her  for 
his  recusancy  or  flight,  made  a  gift  of  all  his  leases  and  goods  of  great  value, 
coloured  with  feigned  consideration,  and  afterwards  he  fled  beyond  sea,  and 
afterwards  was  outlawed  on  the  same  indictment :  and  whether  this  gift 
should  be  void  to  defeat  the  Queen  of  her  forfeiture,  either  by  the  common 
law,  or  by  any  statute,  was  the  question.  And  some  conceived  that  the 
common  law,  which(7i)  abhors  all  fraud,  would  make  void  this  gift  as  to  the 
Queen,  vide  Mich.  12  &  13  Eliz. ;  Dyer(t)  295 ;  4  &  5  P.  &  M.  160.  And 
the  statute  of  (j)  50  E.  3,  c.  6,  was  considered  :  but  that  extends  only  in 
relief  of  creditors,  and  extends  only  to  such  debtors  as  flee  to  sanctuaries,  or 
other  privileged  places;  but  some  conceived  that  the  stat.  of  (A;)  3  H.  7,  c. 
4,  extends  to  this  case.  For  although  the  preamble  speaks  only  of  credi- 
tors, yet  it  is  provided  by  the  body  of  the  act  generally,  that  all  gifts  of 
goods  and  chattels  made  or  to  be  made  on  trust  to  the  use  of  the  donor,  shall 
be  void  and  of  no  effect,  but  that  is  to  be  intended  as  to  all  strangers  who 
are  to  have  prejudice  by  such  gift,  but  between  the  parties  themselves  it 
stands  good.  But  it  was  resolved  by  all  the  barons,  that  the  stat.  13  Eliz. 
c.  b,{J)  extends  to  it ;  for  thereby  it  is  enacted  and  declared,  that  all  feofi"- 
ments,  gifts,  grants,  &c.,  "  to  delay,  hinder,  or  defraud  creditors  and  others 
of  their  just  and  lawful  actions,  suits,  debts,  accounts,  damages,  penalties, 
forfeitures,  heriots,  mortuaries  and  reliefs,"  shall  be  void,  &c.  So  that  this 
act  doth  not  extend  only  to  creditors,  hut  to  all  others  who  had  cause  of  action, 
or  mit,  or  any  penalty ,  or  forfeiture,  &c. 

And  it  was  resolved,  that  this  word  of  forfeiture  should  not  he  intended 
only  of  a  forfeiture  of  an  obligation,  recognizance,  or  such  Wee  [as  it  teas 
objected  by  some,  that  it  should,  in  respect  that  it  comes  after  damage  and 
penalty,\  but  also  to  every  thing  which  shall  by  law  be  forfeited  to  the  king 
or  subject.  And  therefore,  if  a  man,  to  prevent  a  forfeiture  for  felony,  or 
by  outlawry,  makes  a  gift  of  all  his  goods,  and  afterwards  is  attainted  or  out- 
lawed, these  goods  are(m)  forfeited  notwithstanding  this  gift,  the  same 
law  of  recusants,  and  so  the  statute  is  expounded  beneficially  to  suppress 
P  j^P  -,  fraud.  Note  well  this  word(»i)  (declare)  in  the  act  *of  13  Eliz.,  by 
L  J  which  the  parliament  expounded  that  this  was  the(o)  common  law 
before.  And  according  to  this  resolution  it  was  decreed,  Hil.  36  Eliz.,  in 
the  Exchequer  Chamber. 

{h)  .3  Co.  78,  a.  (t)  3  Co.  78,  a.  b.    Dyer  295,  pi.  8,  9, 10,  &c.    Lane,  44. 

( j  )  Co.  Lit.  76,  a.  {k)  Cro.  El.  291,  292.     Lane,  45. 

(1)  Co.  Litt.  3,  b.  7fi.  a.  290,  a.  b.  3  Inst.  152.  5  Co.  60.  a.  b.  6  Co.  18.  b.  10  Co. 
56,  b.  Co.  Ent.  162,  a.  1  Leon.  47,  308,  309.  2  Leon.  8,  9,  223.  3  Leon.  57.  Latch, 
222.  2  Roll.  Rep.  493.  Palm.  415.  Cr.  El.  233,  234.  645.  810.  Cr.  Jac.  270.  2  Bulst. 
226.  Hob.  72.  166.  Yelv.  196,  197.  1  Brownl.  11.  Dyer,  295.  pi.  17.351.  pi.  23.  Rastal, 
Fraudulent  Deeds.     1  Rast.  Ent.  207,  b.     Lane,  47.  103.     Moor,  638.    Doct.  pi.  200. 

(ot)  Co.  Lit.  250,  b.  (n)  Co.  Lit.  76.  a.  290,  b. 

(o)  Hard.  397.     Standen  and  Bullock's  case. 


twyne'scase.  37 

Mich.  42  &  43  EHz.  in  the  Common  Pleas,  on  evidence  to  a  jury,  between 
StaaJen(p)  and  Bullock,  these  points  were  resolved  by  the  whole  court  on 
the  statute  27  Eliz.  c.  4.  Walmsley,  J.,  said,  that  Sir  Christ.  Wray,  late 
C.  J.  of  England,  reported  to  him,  that  he  and  all  his  companions  of  the 
King's  Bench  were  resolved,  and  so  directed  a  jury  on  evidence  before  them ; 
that  where  a  man  had  conveyed  his  land  to  the  use  of  himself  for  life,  and 
afterwards  to  the  use  of  divers  of  his  blood,  with  a  future  power  of  revoca- 
tion, as  after  such  feast,  or  after  the  death  of  such  one ;  and  afterwards,  and 
before  the  power  of  revocation  began,  he,  for  valuable  consideration,  bar- 
gained and  sold  the  land  to  another  and  his  heirs ;  this  bargain  and  sale  is 
within  the(5)  remedy  of  the  said  stat.  For  although  the  stat.  saith,  "  the 
said  first  conveyance  not  by  him  revoked,  according  to  the  power  by  him 
reserved,"  which  seems  by  the  literal  sense  to  be  intended  of  a  present 
power  of  revocation,  for  no  revocation  can  be  made  by  force  of  a  future 
power  until  it  comes  in  esse  ;  yet  it  was  held  that  the  intent  of  the  act  was, 
that  such  voluntary  conveyance  which  was  originally  subject  to  a  power  of 
revocation,  be  it  in  praesenti,  or  infuturo,  should  not  stand  against  a  pur- 
chaser bona  fide  for  a  valuable  consideration;  and  if  other  construction 
should  be  made,  the  said  act  would  serve  for  little  or  no  purpose,  and  it 
would  be  no  difficult  matter  to  evade  it :  so  if  A.  had  reserved  to  himself  a 
power  of  revocation  with  the  assent  of  B.,  and  afterwards  A.  bargained  and 
sold  the  land  to  another,  this  bargain  and  sale  is  good,  and  within  the 
remedy  of  the  said  act ;  for  otherwise  the  good  provision  of  the  act,  by  a 
small  addition,  and  evil  invention,  would  be  defeated. (r) 

And  on  the  same  reason  it  was  adjudged,  38  Eliz.  in  the  Common  Pleas, 
between  Lee  and  his  wife  executrix  of  one  Smith  plaintiff,  and  Mary(s)  Col- 
shil,  executrix  of  Thos.  Colshil,  defendant  in  debt  on  an  obligation  of  1000 
marks.  Rot.  1707.  The  case  was,  Colshil  the  testator  had  the  office  of  the 
Queen's  customer,  by  letters-patent,  to  him  and  his  deputies ;  and  by  inden- 
ture between  him  and  »Smith,  the  testator  of  the  plaintiff,  and  for  ,-  #>t  -i 
600^.  paid,  and  100?.  per  ann.  to  be  paid  during  the  life  of  Colshil,  L 
made  a  deputation  of  the  said  office  to  Smith;  and  Colshil  covenanted  with 
Smith,  that  if  Colshil  should  die  before  him,  that  then  his  executors  should 
repay  him  300?.  And  divers  covenants  were  in  the  said  indenture  concern- 
ing the  said  office,  and  the  enjoying  of  it;  and  Colshil  was  bound  to  the 
said  Smith  in  the  said  obligation  to  perform  the  covenants;  and  the  breach 
was  alleged  in  the  non-payment  of  the  300?.,  forasmuch  as  Smith  survived 
Colshil ;  and  although  the  said  covenant  to  repay  the  300?.  was  lawful,  yet 
forasmuch  as  the  rest  of  the  covenants  were  against  the  statute  of(<)  5  E.  6, 
cap.  16,  and  if  the  addition  of  a  lawful  covenant  should  make  the  obliga- 
tion of  force  as  to  that,(M)  the  statute  would  serve  for  little  or  no  purpose; 
for  this  cause  it  was  adjudged,  that  the  obligation  was  utterly  void. 

(  J,)  Moor,  605.  615.     Bridgm.  23.     5  Co.  60,  b.     Palm.  917.    Lane,  22.    2  Jones,  95. 

C^)  1  Sid.  133.  (r)  Sed.  vide  2  Show.  46,  and  post  13,  in  notis.    Colshil's  Case. 

(s)  2  And.  55,  107.    Godb.  210.    Cro.  El.  529.    Moor,  857.    Ley,  2.  75.  79. 

(0  Style,  29.  Cro.  El.  520.  Cro.  Jac.  269.  Hob.  75.  Co.  Lit.  234,  a,  12  Co.  78.  3 
Inst.  148.  154.  3  Keb.  26.  659,  660.  717,  718.  1  Brownl.  70,  7L  2  And.  55.  107.  3 
Bulst.  91.    3  Leon.  33.    1  Rol.  Rep.  157.  256.     Goldsb.  180. 

(m;  2  And.  56,  57.  108.  1  Mod.  Rep.  35,  36.  Hob.  14.  11  Co.  27,  b.  2  Rolfe's,  28. 
Co.  Lit.  224,  a.  2  Jones,  90,  91.  Cro.  El.  529,  530.  Cro.  Car.  338.  Godb.  212,  213.  1 
Brownl.  64.    Plowd.  68,  b.     Moor,  856,  857.    Ley,  75.  79. 


38  smith's    LEADING     CASES. 

2.  It  was  resolved,  that  if  a  man  hath  power  of  revocation,  and  afterwards 
to  the  intent  to  defraud  a  purchaser,  he  levies  a(i;)  fine,  or  makes  a  feoff- 
ment,  or  other  conveyance  to  a  stranger,  by  which  he  extinguishes  his 
power,  and  afterwards  bargains  and  sells  the  lands  to  another  for  a  valuable 
consideration,  the  bargainee  shall  enjoy  the  land,  for  as  to  him,  the  fine, 
feoffment,  or  other  conveyances  by  which  the  condition  was  extinct,  was 
void  by  the  said  act;  and  so  the  first  clause,  by  which  all  fraudulent  and 
covenous  conveyances  are  made  void  as  to  purchasers,  extend  to  the  last 
clause  of  the  act,  sciL,  when  he  who  makes  the  bargain  and  sale  had  pov^cr 
of  revocation.  And  it  was  said,  that  the  statute  of  Eliz.  hath  made  volun- 
tary estates  made  with  power  of  revocation,  as  to  purchasers,  in  equal 
degree  with  conveyances  made  by  fraud  and  covin  to  defraud  purchasers. 

Between('?/')  Upton  and  Basset  in  trespass,  Trin.  37  Eliz.  in  the  Common 
Pleas,  it  was  adjudged,  that  if  a  man  makes  a  lease  for  years  by  fraud  and 
covin,  and  afterwards  makes  another  lease  bona  fide,  but  without  fine  or  rent 
reserved,  that  the  second  lease  should  not  avoid  the  first  lease. 

For  first  it  was  agreed,  that  by  the  common  law  an  estate  made  by  fraud 
should  be  avoided  only  by  him  who  had  a  former  right,  title,  interest,  debt 
or  demand,  as  by  33  H.  G,  a  sale  in  open(^)  market  by  covin  shall  not  bar 
a  right  which  is  more  ancient :  nor  a  covenous  gift  shall  not  defeat  exccu- 
r  5i:S  1  ^^^^  *^^  respect  of  a  former  debt,  as  it  is  agreed  in  22  Ass.  72 ;  but 
L  J  he  who  hath  right,  title,  interest,  debt  or  demand  more  puisne  shall 
not  avoid  a  gift  or  estate  precedent  by  fraud  by  the  common  law. 

2.  It  was  resolved,  that  no  purchaser  sJwuld  avoid  a  precedent  conveyance 
made  hy  fraud  and  covin,  hut  he  who  is  a[z\  p)urchaser  for  money  or  other 
valuable  consideration,  for  although  in  the  preamble  it  is  said  (for  money 
or  other  good  consideration,)  and  likewise  in  the  body  of  the  act  (iov  money 
or  other  good  consideration,)  yet  these  words  (good  consideration)  are  to  be 
intended  only  of  valuable  consideration,  and  that  appears  by  the  clause 
which  concerns  those  who  had  power  of  revocation,  for  there  it  is  said,  for 
money  or  other  consideration  paid  or  given,  and  this  (paid)  is  to  be  referred 
to  (money,)  and  (given)  is  to  be  referred  to  (good  consideration,)  so  the 
sense  is  for  money  paid,  or  other  good  consideration  given,  which  words  ex- 
clude all  consideration  of  nature  or  blood,  or  the  like,  and  are  to  be  intended 
only  of  valuable  consideration  which  may  be  given ;  and  therefore  he  who 
makes  a  purchase  of  land  for  a  valuable  consideration,  is  only  a  purchaser 
within  the  statute.  And  this  latter  clause  doth  well  expound  these  words 
(other  good  consideration,)  mentioned  before  in  the  preamble  and  body  of 
the  act. 

And  so  it  was  resolved,  Pasch.  32  Eliz.,  in  a  case  referred  out  of  the 
Chancery  to  the  consideration  of  Wyndham  and  Periam,  Justices :  between 
John  Nedham,  plaintifi",  and  Beaumont,  Serjeant-at-law,  defendant ;  where 
the  case  was.  Hen.  Babington  seised  in  fee  of  the  manor  of  Lit-Church,  in 
the  county  of  Derby,  by  indenture,  10  Feb.  8  Eliz.  covenanted  with  the 

(u)l  Co.  112,  b.  174,  a.  Co.  Lit.  237,  a.  Hob.  337,  .333.  Moor,  605.  2  Rol.  Rep.  337. 
496.     Winch.  6.5. 

(Mj)  Co.  Ent.  676,  b.  nu.  19.     Cro,  El.  444,  445.     Lane,  45.     Upton  and  Basset's  Case. 

(y)  Antea,  78,  b.  Plow.  46,  b.  5.5,  a.  Fitz.  Replic.  15.  Br.  Trespass,  26.  Br.  Colin- 
sion,  4.     Br.  Property,  6.    2  Inst.  713.     14  H.  8.  8.  b.     33  H.  6,  5,  a.  b. 

{z)  Cro.  EI.  445. 


twyne's   case. 


39 


^ 


Lord  Darcy,  for  tlie  advancement  of  such  heirs  males,  as  well  those  he  had 
begot,  as  those  he  should  afterwards  beget  on  the  body  of  Mary  then  his 
wife  (sister  to  the  said  Lord  Darcy),  before  the  feast  of  St.  John  Baptist 
then  next  following,  to  levy  a  fine  of  the  said  manor  to  the  use  of  the  said 
Henry  for  his  life,  and  afterwards  to  the  use  of  the  eldest  issue  male  of  the 
bodies  of  the  said  Henry  and  Mary  begotten,  in  tail,  kc,  and  so  to  three 
issues  of  their  bodies,  &c.,  with  the  remainder  to  his  right  heirs.  And 
afterwards,  8  3Iau,  ann.  8  Eliz.,  Henry  Babington,  by  fraud  and  covin,  to 
defeat  the  said  covenant,  made  a  lease  of  the  said  manor  for  a  great  number 
of  years,  to  Robert  Heys  :*  and  afterwards  levied  the  fine  accordingly  :  ^^ 
and  on  conference  had  with  the  other  Justices,  it  was  resolved,  that  L  J 
although  the  issue  was  a  purchaser,  yet  he  was  not  a  purchaser  in  vulgar 
and  common  intendment :  also  consideration  of  blood,  natural  aflFoction,  is  a 
good  consideration,  but  not  such  a  good  consideration  which  is  intended  by 
the  sta^tute  of  Eliz.,  for  (a)  a  valuable  consideration  is  only  a  good  consi- 
deration within  that  act.  In  this  case,  Anderson,  C  J.,  of  the  Common 
Pleas,  said,  that  a  man  who  was  of  small  understanding,  and  not  able  to(5) 
govern  the  lands  which  descended  to  him,  and  being  given  to  riot  and  disor- 
der, by  mediation  of  his  friends,  openly  conveyed  his  lands  to  them,  on 
trust  and  confidence  that  he  should  take  the  profits  for  his  maintenance,  and 
that  he  should  not  have  power  to  waste  and  consume  the  same ;  and  after- 
wards, he  being  seduced  by  deceitful  and  covenous  persons,  for  a  small  sum 
of  money  bargained  and  sold  his  land,  being  of  a  great  value  :  this  bargain, 
although  it  was  for  money,  was  holden  to  be(c)  out  of  this  statute,  for  this 
act  is  made  against  all  fraud  and  deceit,  and  doth  not  help  any  purchaser, 
who  doth  not  come  to  the  land  for  a  good  consideration  lawfully  and  without 
fraud  or  deceit;  and  such  conveyance  made  on  trust  is  void  as  to  him  who 
purchases  the  land  for  a  valuable  consideration  bona  fide,  without  deceit  or 
cunning. 

And  by  the  judgment  of  the  whole  court  Twyne  was  convicted  of  fraud, 
and  he  and  all  the  others  of  a  riot. 


Statute  13  Eliz.  c.  5,  (made  per- 
petual by  29  Eliz.  c.  .5,)  after  reciting 
that  feoffments,  gifts,  grants,  alienations, 
conveyances,  bonds,  suits,  judgments, 
and  executions  have  been  contrived  of 
malice,  fraud,  covin,  collusion,  &.C.,  to 
delay,  hinder,  or  defraud  creditors,  or 
others  of  their  just  and  lawful  actions, 
suits,  debts,  accounts,  damages,  &c., 
proceeds  to  declare  and  enact  that  every 
feoffment,  &c.  of  lands,  tenements,  here- 
ditaments, goods  and  chattels,  or  any  of 
them,  by  writing  or  otherwise,  and  all 
and  every  bond,  suit,  judgment,  and  ex- 
ecution made  for  any  intent  and  purpose 
before  declared  and  expressed,  shall  be 

(a)  2  Roll.  Rep.  305,  306. 


as  against  that  person,  his  heirs,  succes- 
sors, executors,  &c.,  whose  actions,  suits, 
&c.  are  or  might  be  in  anywise  dis- 
turbed, hindered,  delayed  or  defrauded, 
utterly  void.  By  sect.  6,  however,  the 
act  is  not  to  extend  to  any  estate  or  in- 
terest in  lands,  &c.  on  good  considera- 
tion and  bona  fide,  lawfully  conveyed  to 
any  person,  &c.  not  having  notice  of 
such  covin,  &c.  [This  act  was  not  by 
any  means  the  first  attempt  of  the  legis- 
lature to  foil  covenous  transactions,  for 
by  3  H.  7,  c,  4,  "all  deeds  of  gift  of 
goods  and  chattels  made  or  to  be  made 
of  trust  to  the  use  of  the  person  or  per- 
sons that  made  the  same  deed  of  gift" 


{h)  Cro.  El.  445. 


(c)  Ibid. 


40 


smith's   leading    cases. 


are  declared  "  void  and  of  none  effect." 
And  by  the  prior  act  of  50  Ed.  3,  c.  G, 
afler  reciting  "that  divers  persons  do 
give  their  tenements  and  chattels  to 
iheir  friends  by  collusion  to  have  the 
profits  at  their  will  and  after  do  flee  to 
the  franchise  of  Westminster,  of  St. 
Alartin-le-Grand  of  London,  or  other 
such  privileged  places,  and  there  do  live 
a  great  time  with  a  high  countenance  of 
another  man's  goods,  and  profits  of  the 
said  tenements  and  chattels,  ull  the  said 
creditors  shall  be  bound  to  take  a  small 
parcel  of  their  debt  and  release  the 
remnant,  it  is  ordained  and  assented  that 
if  it  be  found  that  such  gifts  be  so  made 
by  collusion,  that  the  said  creditors  shall 
have  execution  of  the  said  tenements 
and  chattels  as  if  no  such  gift  had  been 
made."  There  is  another  statute  con- 
taining provisions  on  the  same  subject. 
2  R.  2,  c.  3.] 

When  it  is  attempted  to  invalidate  a 
transfer  of  goods  by  showing  it  to  fall 
within  the  provisions  of  13  Eliz.  c.  .5,  a 
question  arises  proper  for  the  considera- 
tion of  a  jury,  who  are  to  say  whether 
the  transaction  was  bona  fide,  or  a  con- 
trivance to  defraud  creditors.  Where 
a  bill  of  sale  of  chattel  property  is  exe- 
cuted by  a  debtor  to  his  creditor,  pur- 
porting to  convey  the  property  to  the 
f*l01  ^^""^^^  immediately,  yet*  the 
'-  -■  vendor  is  after  its  execution  suf- 
fered to  remain  in  possession,  a  very 
strong  presumption  of  fraud  arises;  for, 
as  Lord  Coke  remarks  in  the  principal 
case,  continuance  in  possession  by  the 
donor  is  a  sign  of  a  trust  for  his  benefit, 
and  therefore  in  Edwards  v.  Harben,  2 
T.  R.  587,  where  a  creditor  took  an  ab- 
solute bill  of  sale  of  the  goods  of  his 
debtor,  but  agreed  to  leave  them  in  his 
possession  for  a  limited  time,  and  in  the 
mean  time  the  debtor  died,  whereupon 
the  creditor  took  and  sold  the  goods,  he 
was  held  liable  to  be  sued  as  executor 
de  son  tort  for  the  debts  of  the  deceased. 
See  Shears  v.  Rogers,  3  B.  &  Ad.  363. 
Indeed,  in  Edwards  v.  Harben  the  court 
went  so  far  as  to  say,  "  This  has  been 
argued  as  a  case  in  which  the  want  of 
possession  is  only  evidence  of  fraud,  and 
that  it  was  not  such  a  circumstance,  per 
se,  as  makes  tiie  transaction  fraudulent 
in  point  of  law.  That  is  the  point  we 
have  considered,  and  we  are  all  of  opin- 
ion that  if  there  be  nothing  but  the  ab- 
solute conveyance  without  the  posses- 
sion, that,  in  point  of  law,  is  fraudu- 
lent."    See  also  Bamford  v.  Baron,  ibid. 


in  notis;  Reid  v.  Blades,  5  Taunt.  212; 
Paget  v.  Perchard,  1  Esp.  205;  Martin 
v.  Perchard,  2  W.  Bl.  702.  Nay,  Lord 
Ellenborough  thought  that  if  the  vendor 
remained  in  possession  of  the  goods  after 
the  sale  thereof,  the  case  was  not  bet- 
tered by  the  vendee's  remaining  in  pos- 
session along  with  him  ;  and,  therefore, 
in  Wordall  v.  Smith,  1  Camp.  333, 
where  an  action  was  brought  against 
the  sheriff  of  Middlesex  for  a  false  re- 
turn to  a  writ  of  fieri  facias  sued  out  by 
tiic  plaintiff'  against  John  Mason,  and 
returned  by  the  sherifl*  nulla  bona,  and 
upon  the  trial  it  appeared  that  Mason 
had,  before  the  issuing  of  the  fi.  fa.,  as- 
signed all  his  effects  to  a  creditor,  whose 
servant  was  immediately  put  into  the 
house,  and  remained  conjointly  with 
Mason,  Lord  Ellenborough  directed  a 
verdict  for  the  plaintiff,  saying,  "To 
defeat  the  execution  there  must  have 
been  a  bona  fide  substantial  change  of 
possession.  It  is  a  mere  mockery  to 
put  another  person  in  to  take  possession 
jointly  with  the  former  owner  of  the 
goods.  A  concurrent  possession  with 
the  assignor  is  colourable;  there  must 
be  an  exclusive  possession  under  the  as- 
signment, or  it  is  fraudulent  and  void, 
as  against  creditors." 

However,  though  in  Edwards  v.  Har- 
ben it  was  laid  down,  in  the  express 
terms  above  stated,  that  an  absolute  sale 
without  delivery  of  possession  was,  in 
point  of  law,  fraudulent,  the  tendency 
of  the  courts  has  lately  been  to  qualify 
that  doctrine,  and  leave  the  whole  cir- 
cumstances of  each  case  to  a  jury,  bid- 
ding them  decide  whether  the  presump- 
tion of  fraud  deducible  from  the  absence 
of  a  transmutation  of  possession  shall 
prevail.  And,  indeed,  it  ought  to  be  re- 
marked, that  even  in  Edwards  v.  Har- 
ben, the  words  of  Buller,  J.,  were,  "If 
there  be  nothing  but  an  absolute  con- 
veyance, without  the  possession,  that  in 
point  of  law  is  fraudulent;"  by  which 
bis  lordship  may  have  intended,  that 
where  there  was  nothing,  i.  e.  no  facts 
whatever  appearing  in  the  case  except 
the  absolute  conveyance  and  the  non- 
delivery, that  then  the  inference  of 
fraud  would  be  so  strong,  that  a  jury 
ought  not  to  resist  it.  But  it  is  very 
difl'erent  in  cases  where,  although  the 
conveyance  is  absolute,  and  the  posses- 
sion has  not  passed,  still  there  are  sur- 
rounding circumstances  which  show  that 
a  fraud  may  not  have  been  intended  ;  in 
such  cases  it  cannot  properly  be  said, 


twyne's   case. 


41 


that  there  is  "  nothing  but  an  absolute 
conveyance  without  the  possession," 
Tlierefore  in  Latimer  v.  Batson,  4  B.  & 
C.  652,  where  the  sheriff  seized  the 
goods  of  the  Duke  of  Marlborough,  and 
sold  them  to  the  judgment  creditor,  who 
sold  them  to  the  plaintiff,  who  put  a  man 
in  possession,  but  allowed  them  to  re- 
main in  the  duke's  mansion  and  be  used 
by  him  as  before,  it  was  held  that  it  was 
properly  left  to  the  jury  to  say  whether 
the  sale  was  a  bona  fide  sale  for  money 
paid  by  the  plaintiff;  and,  that,  if  so, 
they  should  find  a  verdict  for  him.  Here 
the  goods  had  been  seized  by  the  sheriff, 
who  is  a  public  officer,  and  his  seizure  a 
public  act,  so  that  the  transaction  was 
accompanied  with  some  notoriety,  and 
as  the  secrecy  of  the  transfer  is  a  badge 
of  fraud  (see  the  principal  case,  and 
Mace  V.  Cammel,  Lofft,  782),  so  is  the 
notoriety  of  the  transfer  always  a  strong 
circumstance  to  rebut  the  presumption 
thereof  See  Latimer  v.  Batson;  Leon- 
ard V.  Baker,  1  M.  &  S.  251 ;  Watkins 
V.  Birch,  4  Taunt.  828 ;  Jezeph  v.  In- 
gram, 8  Taunt.  838  ;  Kidd  v.  Rawlin- 
6on,  2  B.  &  P.  59 ;  Cole  v.  Davies,  1 
Lord  Raym.  724. 

*It  may,  therefore,  be  safely  laid 
r*i  11  down,  that,  under  almost  any  cir- 
'•  -■  cumstances,  the  question,  fraud 
or  no  fraud,  is  one  for  the  consideration 
of  the  jury.  See  the  judgments  in 
Martindale  v.  Booth,  3  B.  &  Adol.  498, 
where  several  cases  establishing  this 
point  are  cited  ;  and  see  in  Carr  v.  Bur- 
diss,  5  Tyrwh.  316,  the  expressions  of 
Parke,  B ,  Dewey  v.  Bayntun,  6  East, 
257;  Reed  v.  Blades,  5  Taunt.  212,  [and 
per  Tindal,  C.  J.,  Lindon  v.  Sharp,  6 
Man.  &  Gr.  898;  7  Scott,  N.  R.  730, 
S.  C] 

The  above  observations  apply  to  cases 
where  the  conveyance  is  absolute,  and 
there  is  no  transmutation  of  possession, 
but  where  the  conveyance  is  not  abso- 
lute to  take  effect  immediately,  as,  for 
instance,  where  it  is  by  way  of  mortgage, 
and  the  mortgagee  is  not  to  take  pos- 
session till  a  default  in  payment  of  the 
mortgage  money,  there,  as  the  nature  of 
the  transaction  does  not  call  for  any 
transmutation  of  possession,  the  absence 
of  such  transmutation  seems  to  be  no  evi- 
dence of  fraud.  "We  consulted,"  says 
Buller,  J.,  in  Edwards  v.  Harben,  "with 
all  the  judges,  who  are  unanimously  of 
opinion,  that  unless  possession  accom- 
panies and  follows  the  deed,  it  is  fraudu- 
lent and  void ;  I  lay  stress  on  the  words 


accompanies  and  follows,  because  I  shall 
mention  some  cases  where,  though  pos- 
session was  not  delivered  at  the  time, 
the  conveyance  was  held  not  to  be  frau- 
dulent." And  then  his  lordship  proceeds 
to  point  out  the  distinction  between 
"  deeds,  or  bills  of  sale  which  are  to  take 
place  immediately,  and  those  which  are 
to  take  place  at  some  future  time :  for, 
in  the  latter  case,  the  possession  con- 
tinuing in  the  vendor  till  that  future 
time,  or  till  that  condition  is  performed, 
is  consistent  with  the  deed,  and  such  pos- 
session comes  within  the  rule  as  accom' 
panying  and  following  the  deed."  See 
B.  N.  P.  258,  and  Cadogan  v.  Kennett, 
Cowp.  436,  Minshull  v.  Lloyd,  2  M.  & 
W.  450.  This  doctrine  was  affirmed 
and  acted  upon  in  the  late  case  of  Mar- 
tindale V.  Booth,  3  B.  &  Adol.  505,  and 
in  Reed  v.  Wilmot,  7  Bingh.  577.  [See 
also  per  C.  J.,  Reeves  v.  Capper,  5  N.  C. 
140.]  Cases  may,  and  probably  will, 
arise  in  which  it  may  be  attempted  to 
take  advantage  of  this  doctrine  for  the 
purposes  of  fraud,  by  introducing  terms 
consistent  with  the  continuing  possession 
of  the  vendor  into  deeds  really  intended 
not  to  operate  as  a  bona  fide  transfer  of 
property,  but  to  enure  for  the  vendee's 
protection.  In  such  cases,  however,  the 
collusion,  as  soon  as  discovered,  would 
be  held  to  invalidate  the  deed  as  much 
as  if  the  conveyance  purported  upon  the 
face  of  it  to  be  absolute,  for  the  presence 
or  absence  of  fraud  depends  on  the  mo- 
tives of  the  party  making  the  convey- 
ance. See  Nunn  v.  Wilson,  8  T.  R. 
521 ;  per  Le  Blanc,  J.  [Riches  v.  Evans, 
9  C.  &  P.  640.] 

There  are  some  cases,  that  for  in- 
stance of  the  sale  of  a  ship  at  sea,  in 
which  an  actual  delivery  being  impossi- 
ble, no  presumption  of  fraud  can  possibly 
arise  from  the  substitution  of  one  merely 
symbolical.  Atkinson  v.  Maling,  2  T. 
R.  472. 

It  will  be  observed  that  the  statute 
of  Elizabeth  only  declares  the  fraudu- 
lent conveyance  to  be  void,  "as  against 
that  person,  his  heirs,  successors,  exe- 
cutors, &c.,  who  are,  or  might  be  in 
anywise  disturbed,  hindered,  delayed  or 
defrauded."  Such  a  conveyance  is  good 
as  against  the  party  executing  it,  Ro- 
binson V.  M'Donnel,  2  B.  &  A.  134 ; 
and  also  as  against  any  other  person 
privy  and  consenting  to  it.  Steel  v. 
Brown  and  Parry,  1  Taunt.  381 ;  [and 
as  against  strangers  other  than  creditors 
or  bona  fide  purchasers  for  valuable  con- 


42 


SMITHS    LEADING    CASES. 


sideration,  Bessey  v.  Windham,  6  Q.  B, 
166.] 

In  the  principal  case,  Pierce,  the 
grantor,  was  indebted  to  the  grantee, 
Twyne,  which  debt  would  have  been  a 
sufficient  consideration  to  support  a  bona 
fide  transfer  of  the  goods,  and  the  ground 
on  which  the  court  proceeded  was  not 
that  there  was  no  sufficient  considera- 
tion to  sustain  a  grant  by  Pierce  to 
Twyne,  but  that  the  secrecy,  the  non- 
delivery, the  clausulcB  inconsuettp,  &c., 
raised  a  presumption  that  the  whole 
transaction  was  collusive  and  a  juggle, 
and  though  purporting  to  be  a  sale  was, 
in  reality,  the  creation  of  a  trust  for  the 
benefit  of  Pierce ;  to  use  their  own 
words,  "  it  was  resolved  that,  notwith- 
standing here  was  a  true  debt  due  to 
Twyne,  and  a  good  consideration  of  the 
gift,  yet  it  was  not  within  the  proviso  of 
tlie  .'said  act  of  13  Eliz.,  by  which  it  was 
provided  that  the  said  act  shall  not  ex- 
tend to  any  estate  or  interest  in  lands, 
&c.,  goods  or  chattels,  made  on  good 
consideration  and  bona  fide ;  for  although 
it  is  on  a  true  and  good  consideration, 
yet  it  is  not  bona  fide,  for  no  gift  shall 
be  deemed  to  be  bona  fide,  within  the 
said  proviso,  which  is  accompanied  with 
any  trust."  In  other  words,  although  a 
debtor  has  a  right  to  prefer  one  creditor  to 
another,  and  by  making  a  transfer  of  his 
r  »io  T  property  *toone  favoured  claimant 
'-  ^  -■  to  defeat  the  other,  provided  he  do 
so  in  an  open  manner,  and  without  any 
further  object  than  his  act  upon  the  face 
of  it  imports; — still  the  law  will  not  al- 
low a  creditor  to  make  use  of  his  demand 
to  shield  his  debtor;  and,  while  he  leaves 
him  in  statu  quo  by  forbearing  to  en- 
force the  assignment,  to  defeat  the  other 
creditors  by  insisting  upon  it.  Thus,  (to 
illu.strate  this  position  by  Lord  Coke's 
words  in  the  principal  case.)  "  if  a  man 
be  indebted  to  five  several  persons  in  the 
several  sums  of  20/.,  and  hath  goods  of 
the  value  of  20/.,  and  makes  a  gift  of  all 
his  goods  to  one  of  them  in  satisfaction 
of  his  debt, />ri<  there  is  a  trust  between 
them  that  the  donee  shall  deal  favour- 
ably with  him  in  regard  of  his  poor  es- 
tate, either  to  permit  the  donor,  or  some 
other  person  for  him,  or  for  his  benefit, 
to  use  or  have  possession  of  them,  and 
is  contented  that  he  shall  pay  him  his 
debt  when  he  is  able;  this  shall  not  be 
called  bona  fide  within  the  said  proviso, 
for  the  proviso  saith  on  a  good  consi- 
deration and  bona  fide, so  a  good  con- 


sideration doth  not  suffice  if  it  be  not 
also  bona  fide."  There  is,  however,  no 
doubt  but  that  a  debtor  (so  he  be  not 
a  trader  in  contemplation  of  bankruptcy) 
may  openly  prefer  one  creditor  to  the 
rest,  and  transfer  property  to  him  even 
after  the  others  have  commenced  their 
actions.  Picksfock  v.  Lyster,  3  M.  «fe 
S.  371 ;  Holbird  v.  Anderson,  5  T.  R. 
235 ;  Meux  v.  Howel,  4  Eas'.,  1 ;  East- 
wick  v.  Caillaud,  5  T.  R.  420;  Bowen 
v.  Bramidge,  6  C.  &,  P.  142.  Goss  v. 
Neale,  5  B.  M.  19;  [Riches  v.  Evans,  9 
C.  &  P.  640,  Lord  Abinger ;  Everleigh  v. 
Purssord,  2  Mo.  &  R.  539,  Rolfe,  B.]  See, 
however,  the  late  case  of  Owen  v.  Body, 
'5  Ad.  &  El.  22.  [And  it  is  broadly  laid 
down  in  Wood  v.  Dixie,  7  Q.  B.  892, 
that  a  sale  of  property  for  good  consider- 
ation is  not,  either  at  common  law,  or 
under  the  statute,  void  merely  because 
it  is  made  with  intent  to  defeat  the  ex- 
pected execution  of  a  judgment  credi- 
tor.] An  assignment  of  all  hiseflTects  in 
trust  for  his  wife,  by  a  man  about  to  be 
tried  for  felony,  has  been  held  to  come 
within  this  statute,  and  to  be  fraudulent 
and  void  as  against  the  crown.  Shaw  v. 
Bean,  1  Stark.  319;  Jones  v.  Ashurst, 
Skinn.  357;  Morewood  v.  Wilkes,  6  C. 
&  P.  145 ;  and  Pauncefoot's  case,  sup. 
pp.  4,  5.  Vide  R.  v.  Bridger,  1  M.  &  W. 
145.  A  deed  has  been  held  void  which 
purported  to  create  a  trust  for  all  the 
creditors,  but  contained  terms  which 
would,  if  accepted,  have  imposed  on 
them  the  liability  of  partners.  Owen  v. 
Body,  5  Ad.  &  Ell.  22.  [A  covenant  in 
a  deed  of  separation  (containing  no  in- 
demnity to  the  husband  against  his  wife's 
debts)  whereby  the  husband  covenanted 
to  pay  an  annuity  to  a  trustee  for  his 
wife,  was  holden  void  as  against  the  cre- 
ditors of  the  husband,  in  Clough  v.  Lam- 
bert, 10  Sim.  174  ;  and  see  Frampton  v. 
Frampton,  4  Beav.  287. 

A  judgment  and  execution  "  contrived 
of  malice"  are  within  the  same  mischief 
and  same  rule  as  a  gift  or  assignment. 
An  early  case  on  this  subject  is  West  v. 
Skip,  1  Ves.  sen.  244,  in  which  it  is  laid 
down  by  Lord  Hardwicke,  that  if  a  cre- 
ditor seize  the  goods  of  his  debtor  and 
suffer  them  to  remain  long  in  his  hands, 
this  is  evidence  of  fraud.  See  Lovick 
V.  Crowder,  8  B.  &  C.  132;  Imray  v. 
Magnay,  11  M.  &  W.  267;  Hunt  v. 
Hooper,  12  M.  &  W.  664.] 

It  has  been  said  by  Lord  Mansfield, 
that  "  the  principles  of  the  common  law, 


TWYNE'S    CASE. 


43 


as  now  universally  known  and  under- 
stood, are  so  strong  against  fraud  in  eve- 
ry shape,  that  the  common  law  would 
have  attained  every  end  proposed  by 
Stat.  13  Eliz.  c.  5."  The  question,  whe- 
ther a  gift  be  fraudulent  within  the 
moaning  of  this  statute,  is  very  different 
indeed  from  the  question,  whether,  if 
made  by  a  trader,  it  would  be  fraudulent, 
and  an  act  of  bankruptcy  within  the 
meaning  of  the  bankrupt  act.  The  lat- 
ter question  may  be  answered  in  each 
case  by  reference  to  one  of  the  following 
three  rules : — 

1.  Any  transfer  which  is  fraudulent 
within  the  meaning  of  the  statute  of 
Elizabeth,  is  also  fraudulent,  and  an  act 
of  bankruptcy,  under  the  bankrupt  act. 

2.  Any  conveyance  to  a  creditor  by  a 
trader,  of  his  whole  property,  or  of  the 
whole  with  an  exception  merely  nominal, 
in  consideration  of  a  by-gone  and  pre- 
existing debt,  though  not  fraudulent 
within  the  statute  of  Elizabeth,  is  fraud- 
ulent under  the  bankrupt  act,  and  an  act 
of  bankruptcy.  [Lindon  v.  Sharp,  7 
Scott,  N.  R.  730;  6  Man.  &  Gr.  895, 
S.  C] 

3.  A  transfer  by  a  trader  of  part  of  his 
property  to  a  creditor  in  consideration 
of  a  by-gone  and  pre-existing  debt, 
though  not  fraudulent  within  the  statute 
of  Elizabeth,  is  fraudulent,  and  an  act  of 
bankruptcy  under  the  bankrupt  act,  if 
made  voluntarily,  and  in  contemplation 
of  bankruptcy. 

It  has  been  laid  down  that  a  voluntary 
conveyance  is  not  fraudulent  against 
creditors  within  the  13th  Eliz.,  unless 
the  party  making  it  was  indebted  at  the 
time,  or  nearly  so ;  Holcroft's  case,  Dyer, 
294  (b);  Stephen  v.  Olive,  2  Bro.  R.  9  ; 
Lush  v.  Wilkinson,  5  Ves.  384  ;  B.  N.  P. 
257;  and  indeed  Lord  Alvanley  has  said 
that  to  invalidate  a  settlement  made  af- 
ter marriage,  by  the  13th  Eliz.  the  set- 
tlor must  be  in  insolvent  circumstances, 

5  Ves.  384  ;  see  Shears  v.  Rogers,  3  B. 

6  Ad.  362 ;  Battersbee  v.  Farrington,  1 
Swanst.  106;  Russell  v.  Hammond,  1 
Atk.  15;  Middlecome  v.  Marlow,  2  Atk. 
220 ;  Lord  Townsend  v.  Wyndham,  2 
Ves,  1.  10.  In  some  instances,  however, 
a  contrary  doctrine  has  prevailed  ;  see 
B.  N.  P.  257 ;  [Townsend  v.  Westacott, 
2  Beav.  340 :  4  Beav.  58,  S.  C. ;  where 
the  grantor  was  considerably  in  debt  at 
the  time  and  insolvent  within  three 
years  after] ;  and  it  would  be  difficult  to 
contend  that  a  conveyance  proved  to  be 


made  lo'ith  the  express  intent  to  defraud 
even  future  creditors  would  not  be  void 
as  against  them,  indeed  that  very  point 
seems  involved  in  Tarback  v.  Marbury, 
2  Vern.  510,  and  Hungerford  v,  Earle, 
2  Vern.  201.  [And  if  the  conveyance 
does  not  leave  the  grantor  enough  to  pay 
his  present  debts,  he  is  for  this  purpose 
considered  as  if  insolvent  at  the  time  of 
the  conveyance,  Jackson  v,  Bowley,  1 
Car.  &  M.  97,  Erskine,  J.]  It  has  been 
held  to  make  no  difference  that  the  debt 
was  contracted,  not  by  the  party  making 
the  conveyance  but  by  his  ancestor  from 
whom  he  derived  the  estate,  *Ap-  r  ^jg  -, 
harry  v,  Bodingham.Cro.  Eliz.  56;  '-  J 
Gooch's  case,  5  Rep.  60;  [see  Richardson 
V.  Horton,  7  Beav,  112] ;  and  as  a  fraudu- 
lent conveyance  by  the  heir  is  void,  so 
is  one  by  an  executor  or  administrator  of 
the  property  of  the  deceased,  and  he  is 
chargeable  with  what  he  so  conveys  as 
assets.  Doe  v.  Fallows,  2  Tyrwh.  460,  2 
C.  &.  J.  481,  And  property  fraudulently 
conveyed  by  the  deceased  himself  is,  in 
contemplation  of  law,  assets  for  payment 
of  his  debts  in  the  hands  of  his  execu- 
tors. Shears  v.  Rogers,  3  B.  &  Ad.  363. 
By  sec.  3  of  st,  13  Eliz.,  parties  to  the 
fraudulent  conveyance,  bond,  &c.,  forfeit 
a  year's  value  of  the  lands  or  tenements 
conveyed,  the  whole  value  of  the  chat- 
tels, and  the  amount  of  any  covenous 
bond,  half  to  the  crown  and  half  to  the 
parties  grieved  ;  the  assignees  of  an  in- 
solvent are  parties  grieved  within  this 
section.  Butcher  v,  Harrison,  4  B.  &  Ad. 
129;  [the  fraudulent  conveyance  being 
void  as  against  them.  Doe  d.  Grimsby  v. 
Ball,  11  M.  &  W.  531. 

As  a  general  rule  in  the  case  of  ordi- 
nary creditors,  where  the  debtor  is  not 
dead,  bankrupt,  or  insolvent,  the  statute 
of  13  Eliz.  operates  only  upon  property 
capable  of  being  taken  in  execution. 
Thus,  before  L  &  2  Vict.  c.  110,  it  is 
found  laid  down  that]  copyholds  are  not, 
generally  speaking,  within  13  Eliz  ,  on 
account  of  their  not  being,  generally 
speaking,  subject  to  debts,  Matthews  v, 
Feaver,  1  Cox,  Ch.  Ca,  278,  [and  the 
same  is  stated  to  be  the  law,  since  that 
statute,  in  a  learned  work,  1  Scriven  on 
Copyholds,  by  Stalman,  146,  It  would 
seem,  however,  that  the  law  is  other- 
wise, since  the  11th  section  of  that 
statute  has  subjected  copyholds,  like 
other  lands,  to  execution  by  elegit. 
With  regard  to  choses  in  action,  it  ha3 
lately  been  laid  down  by  Lord  Gotten- 


44 


SMITHS     LEADING     CASES. 


ham,  in  Norcutt  v.  Dodtl,  Cr.  &  Pli.  100, 
that  a  voluntary  assignment  of  a  chose 
in  action  is  not  fraudulent  as  against 
creditors,  within  the  meaning  of  st.  13 
Eliz,  during  the  lifetime  of  the  assignor, 
since  it  could  not  be  reached  by  an  exe- 
cution. But  that  after  his  death,  it  might 
be  treated  as  fraudulent  in  a  proceeding 
against  the  executor,  because  the  chose 
in  action  would  have  been  assets  in  his 
hands  available  towards  payment  of  the 
creditors;  and  that  in  case  of  an  insol- 
vency it  becomes  fraudulent  by  the  con- 
joint operation  of  13  Eliz.  c.  5,  and  the 
insolvent  act.  Pursuing  this  doctrine, 
it  would  seem  that  a  voluntary  assign- 
ment of  such  choses  in  action  as  are 
seizable  in  execution  by  the  provisions 
of  1  Vict.  c.  110,  would  now  be  subject 
to  the  operation  of  13  Eliz.  c.  5.  And, 
with  submission,  ^ti  assignment  of  a 
chose  in  action,  (or  other  property  not 
seizable  in  execution),  under  circum- 
stances which  (if  the  property  were 
seizable),  would  make  the  conveyance 
void  under  13  Eliz.  c.  5,  seems  void  in 
case  of  a  subsequent  bankruptcy  or  in- 
solvency as  against  the  assignees,  who, 
but  for  the  assignment,  would  be  enti- 
tled to  the  property.  Norcutt  v.  Dodd, 
supra.  In  Sims  v.  Thomas,  12  Ad.  & 
El.  536,  it  was  laid  down  as  a  general 
r*lS61  proposition,  that  a  ^voluntary  as- 
•-  -■  signment  of  a  bond  (before  1  & 
2  Vict.  c.  110),  was  not  void  as  against 
creditors;  but  the  important  distinction 
between  an  ordinary  execution,  under 
which  the  bond  could  not  have  been 
taken,  and  the  statutory  execution,  so 
to  speak,  of  an  insolvency,  does  not  ap- 
pear to  have  been  there  adverted  to. 
Perhaps  it  was  considered  not  to  arise 
upon  the  pleadings. 

The  effect  of  13  Eliz.  c.  5,  upon  the 
sheriff's  duty  has  been  explained  by  the 
Court  of  Exchequer  in  Imray  v.  Mag- 
nay,  11  M.  &  \V.  207;  from  which  de- 
cision it  follows,  that  the  sheriff  is  bound 
(at  all  events  if  he  have  notice  of  the 
fraud),  to  seize  and  sell,  notwithstanding 
a  fraudulent  assignment  or  judgment 
and  execution,  and  that  if  he  do  not,  an 
action  lies  against  iiim.] 

The  statute  27  Eliz.  c.  4,  being  in 
pari  materia  with  the  13  Eliz.  c.  5,  is 
referred  to  in  the  text  in  illustration  of 
the  doctrine  there  laid  down  respecting 
the  construction  of  the  latter  statute. 
The  27  Eliz.  (rendered  perpetual  by  30 
Eliz.  cap.  18)  was  enacted  for  the  pro- 
tection of  purchasers,  as   13  Eliz.  was 


for  that  of  creditors.  It  enacts  that 
every  conveyance,  grant,  charge,  lease, 
estate,  and  limitation  of  use  of,  in,  or 
out  of  any  lands,  tenements,  or  other 
hereditaments  whatsoever,  for  the  intent 
and  purpose  to  defraud  and  deceive  such 
persons,  bodies  politic,  &c.,  as  shall  pur- 
chase the  said  lands,  &c.,  or  any  rent, 
profit,  or  commodity,  in  or  out  of  the 
same,  shall  be  deemed  and  taken,  only 
against  that  person  or  persons,  bodies 
politic,  &c.,  and  his  or  their  heirs,  suc- 
cessors, executors,  administrators,  and 
assigns,  and  against  every  one  lawfully 
claiming  under  them  who  shall  so  pur- 
chase tor  money,  or  any  good  considera- 
tion, the  said  lands,  &,c.,  or  any  rent,  &c.. 
to  be  wholly  void,  frustrate  and  of  none 
effect. 

Under  this  act  it  is  held  that  not 
merely  is  a  conveyance  executed  with 
express  intention  to  defraud  subsequent 
purchasers  for  value  void  as  against 
them,  see  Burrell's  case,  6  Rep.  72 ; 
Gooch's  case,  5  Rep.  60;  and  Standen 
V.  Bullock,  cited  ante,  p.  5:  but  a  volun- 
tary conveyance  is  so  likewise,  even 
though  the  subsequent  purchaser  have 
notice  of  it.  Goodright  v.  Moses,  1  Bl. 
1019;  Evelyn  v.  Templar,  1  Bro.  R. 
148 ;  Doe  v.  Manning,  9  East,  59;  Cor- 
mick  v.  Trapaud,  8  Dow,  60;  for  the 
very  execution  of  a  subsequent  convey- 
ance sufficiently  evinces  the  fraudulent 
intent  of  the  former  one.  [It  is  how- 
ever good  as  against  the  grantor,  who 
therefore  cannot  as  against  a  purchaser 
without  notice,  compel  specific  perform- 
ance of  a  subsequent  contract  to  pur- 
chase for  value.  Smith  v.  Garland,  2 
Mer.  123.  See  Wilkins  v.  Ormsby,  5 
Beav.  153  ]  The  fifth  section  of  the 
same  statute  enacts,  that  if  any  person 
shall  make  any  conveyance  of  lands, 
with  a  clause  of  revocation,  at  r^j,,.,  -, 
his  *will  and  pleasure,  of  such  '-  -* 
conveyance ;  and,  after  such  convey- 
ance, shall  bargain,  sell,  grant,  demise, 
convey,  or  charge  the  same  lands  to  any 
person  or  persons  for  money  or  other 
good  consideration,  the  said  first  convey- 
ance not  being  revoked,  that  the  said 
first  conveyance,  as  against  such  bar- 
gainees, vendees,  lessees,  their  heirs, 
successors,  executors,  administrators, 
and  assigns,  shall  be  void  and  of  none 
effect.  See  the  observations  on  this 
section  in  the  principal  case.  A  power 
to  mortgage  to  any  extent  is  a  power  of 
revocation  within  the  meaning  of  this 
section.     Tarback  v.  Marbury,  2  Vern. 


twyne's   case. 


45 


511.  But  a  power  to  charge  with  a  par- 
ticular sum  is,  if  no  fraud  be  found,  not 
so.  Jenkins  v.  Kemish,  1  Lev.  152.  A 
power  to  lease  for  any  number  of  years 
with  or  without  rent,  is  also  a  power  of 
revocation  within  this  section :  for  both 
that  and  the  mortgage  power  enable  the 
party  exercising  them  to  defeat  the  es- 
tate in  substance.  Lavender  v.  Black- 
stone,  2  Lev.  146.  But  a  power  to  be 
exercised  with  the  consent  of  third  per- 
sons is  not  within  this  clause,  unless,  as 
in  the  case  put  in  the  text,  they  be  un- 
der the  control  of  the  settlor.  Buller 
V.  VVaterhouse,  2  Show.  46. 

A  mortgagee  is  a  purchaser  within 
the  meaning  of  the  27  Eliz.,  Chapman 
V.  Emery,  Cowp.  279.  [As  to  an  equi- 
table mortgagee,  see  Ruckle  v.  Mitchell, 
18  Ves.  100;  Lister  v.  Turner,  5  Hare, 
281 ;  Kerrison  v.  Dorrien,  9  Bing.  76.] 
And  so  is  a  lessee  at  a  rack-rent.  Good- 
right  V.  Moses,  2  BL  1019;  or  a  person 
who  releases  a  contested  right  in  consi- 
deration of  the  conveyance  to  him.  Hill 
V.  Bishop  of  Exeter,  2  Taunt.  69;  or  the 
purchaser  under  a  settlement  made  in 
r^j.-j  consideration  of  an  ^intended 
'-  -I  marriage,  Douglas  v.  Ward,  1 
Cha.  Ca.  79;  but  not  under  a  post-nup- 
tial settlement,  unless  made  in  pursu- 
ance of  articles  entered  into  before  mar- 
riage, Martin  v.  Scudamore,  1  Cha.  Ca, 
170,  for  one  voluntary  conveyance  can- 
not defeat  another.  Clavering  v.  Cla- 
vering,  2  Vern.  473;  1  Abr.  Eq.  24. 
And  semble  that  the  articles  ought  to 
be  binding  ones,  Doe  d.  Barnes  v.  Rowe, 
4  N.  C.  737. 

A  will  is  looked  on  as  a  voluntary 
conveyance,  Villers  v.  Beaumont,  1 
Vern.  100;  Boughton  v.  Boughton,  1 
Atk.  625.  See  3  Swanst.  412,  414,  in 
nolis.  And  there  may  be  cases  in 
which,  on  account  of  the  inadequacy  of 
the  price,  a  question  may  arise,  whether 
a  subsequent  conveyance,  though  so77ie 
value  pass,  be  not  in  effect  voluntary, 
and  a  mere  trick  for  the  purpose  of  in- 
validating a  former  one.  Doe  v.  James, 
16  East,  212.  [See  an  analogous  case, 
Persse  v.  Persse,  7  CI.  &,  F.  279,  post, 
14.]  A  lessee  without  fine  or  rent  is 
not  a  purchaser  within  the  statute,  Up- 
ton V.  Bassett,  Cro.  Eliz.  444;  cited  also 
in  Twyne's  case.  [Qusere,  whether  a 
bona  fide  purchaser  for  value  from  the 
heir-at-law  of  one  who  has  made  a  vol- 
r*iA  1  untary  *conveyance  is  within 
'-  -I  the  statute?  According  to  the 
report  of  Parker  v.  Carter,  4  Hare,  409, 


it  would  seem  that  he  is  not ;  but  com- 
pare s.  2  and  s.  5 ;  and  see  Barrell's 
case,  6  Rep.  72,  recognised  and  acted 
on  in  Warburton  v.  Loveland,  6  Bligh, 
N.  S.  30.  See  also  1  Sugd.  V.  and  P. 
928,  11th  ed.] 

In  27  Eliz.  there  is  a  proviso,  sect.  4, 
similar  to  that  in  13  Eliz.  sect.  6,  in  fa- 
vour of  bona  fide  purchasers.  Such  are 
considered,  persons  taking  under  instru- 
ments made  [bona  fide  and]  for  a  valu- 
able consideration.  Roe  v.  Mitton,  2 
Wils.  356 ;  or  under  ante-nuptial  set- 
tlements ;  Kirk  v.  Clark,  Prec.  Cha. 
275  ;  or  post-nuptial  settlements  made 
in  consideration  of  ante-nuptial  articles; 
or  of  an  additional  portion,  Dundas  v. 
Dutens,  2  Cox,  235;  Jones  v.  Marsh, 
Forest.  63  ;  Browne  v.  Jones,  1  Atk. 
188;  Spurgeon  V.  Collier,  1  Eden,  55; 
or  in  consideration  of  the  wife's  joining 
to  destroy  an  ante-nuptial  settlement, 
Scott  V.  Bell,  2  Lev.  70.  So  also  per- 
sons who  between  the  voluntary  settle- 
ment and  the  purchase,  have  acquired 
as  purchasers  under  the  voluntary  set- 
tlement any  legal  or  even  equitable 
right.  Prodgers  v.  Langham,  1  Sid. 
133.  [The  East  India  Company  v.  Cla- 
vell,  Prec.  Cha.  377,  seems  opposed  to 
Prodgers  v.  Langham,  but  the  latter 
case  was  not  referred  to  in  the  former, 
and  it  was  approved  of  by  Lord  Eldon, 
George  v.  Milbanke,  9  Ves.  193,  and  by 
Lord  Kenyon,  Poer  v.  Eliason,  1  East, 
95,  where  it  is  called  "a  very  leading 
authority."]  Smartle  v.  Williams,  3 
Lev.  387,  Skinn.  423 ;  Kirk  v.  Clark, 
Prec.  Cha.  275 ;  Brown  v.  Carter,  5 
Ves.  jun.  862;  George  v.  Milbanke,  9 
Ves.  190 ;  [Meggison  v.  Foster,  2  Y.  »& 
C.  C.  C.  336.  There  have  been  some 
cases  in  which  the  question  has  been, 
how  far  the  consideration  of  marriage 
will  extend,  and  whether  limitations  in 
favour  of  very  remote  objects  may  not  be 
void  as  against  subsequent  purchasers. 
See  Jenkins  v.  Kemish,  Hard.  395; 
White  V.  Stringer,  2  Lev.  105;  Osgood 
V.  Strode,  2  P.  Wms.  245;  Ball  v.  Barn- 
ford,  Prec.  Cha.  113;  Reeves  v.  Reeves, 
9  Mod.  132;  [Hart  v.  Middlehurst,  3 
Atk.  371.]  In  two  of  the  latest  cases 
on  the  subject  a  limitation  to  the  issue 
of  the  settlor  by  a  second  marriage  was 
certified  by  the  King's  Bench  not  to  be 
voluntary.  Clayton  v.  Earl  of  Winton, 
3  Madd.  302.  And  a  limitation  to  the 
brothers  of  the  settlor  to  be  voluntary. 
Johnson  v.  Legard,  ibid.  283 ;  [see 
Stackpoole   v.    Stackpoole,    4   Dru.    & 


46 


smith's   leading    cases. 


War.  326.  So  a  limitation  in  a  marri- 
age settlement  of  the  wife's  land,  in  de- 
fault of  children,  for  the  benefit  of  her 
brotliers  and  sisters  has  been  iiolden 
void  as  against  a  bona  fide  purchaser  for 
value  from  the  husband  and  wife.  Cot- 
terell  v.  Homer,  13  Sim.  506.  As  to 
the  validity  of  such  a  limitation  between 
the  high  contracting  parties  themselves, 
see  Davenport  v.  Bishopp,  2  Y.  &  C.  C. 
C.  451;  1  Phil.  698.]  A  settlement  made 
r  *14^  1  by  a  *widow  about  to  take  hus- 
•-  -I  band  upon  the  children  of  her 

former  marriage,  was  upheld  by  Lord 
Hardwicke  against  a  subsequent  mort- 
gagee. Newstead  v.  Series,  1  Atk,  265. 
Tiie  title  of  one  who  purchased  for  valu- 
able consideration,  from  a  person  who 
had  obtained  a  conveyance  by  fraud,  of 
which  he  however  had  no  notice,  falls 
within  the  above  proviso,  and  cannot  be 
impeached.  Doe  v.  Martyr,  1  N,  R.  332. 
[The  existence  of  a  valuable  considera- 
tion, though  it  should  differ  from  the 
consideration  specified  in  the  instrument, 
may  be  proved,  in  order  to  rebut  fraud 
and  establish  a  right  to  the  benefit  of 
the  proviso  ;  thus,  where  a  deed  pur- 
ported to  be  in  consideration  of  love  and 
aff'ection,  evidence  was  allowed  that  the 
grantor  was  under  a  bond  to  support  the 
objects  of  it.  Gale  v.  Williamson,  8  M. 
&  W.  405  ;  see  Pott  v.  Todhunter,  2  C. 
C.  C.  76. 

The  adequacy  of  the  consideration  is 
an  important  element  in  forming  a  con- 
clusion as  to  the  bona  fides  of  the  trans- 
action. (See  Doe  v.  Jones,  16  East,  212, 
ante,  14.)  In  no  case,  however,  can  in- 
adequacy of  consideration  alone  be  said, 
as  a  proposition  of  law,  conclusively  to 
establish  mala  fides.  The  relationship 
of  tlie  parties,  and  other  circumstances, 
may  explain  away  its  prima  facie  effect. 
For  instance,  a  conveyance  in  a  deed, 
by  way  of  family  arrangement,  part  of 
the  inducement  to  execute  wiiich  is  ob- 
viously natural  love  and  affection,  may 
be  sustained  by  any  valuable  considera- 


tion not  very  inadequate.  Persse  v. 
Pcrsse,  7  CI.  &  F.  279.  See  Pott  v. 
Todhunter,  2  C.  C.  C.  76;  Parker  v. 
Carter,  4  Hare,  409.  The  joinder  of  a 
necessary  party  in  a  conveyance  is  not 
always  a  sufficient  consideration.  It  has 
been  held  not  to  be  so  where  a  limitation 
was  made,  not  for  his  benefit  or  at  his 
desire,  nor  in  pursuance  of  any  contract 
of  his.  Doe  d.  Baverstock  v.  Kolfe.  8  A. 
&  E.  650.] 

The  statute  of  27  Eliz.  was,  perhaps, 
a  more  beneficial  enactment  than  that 
of  13  Eliz.,  for  it  has  been  laid  down, 
that  at  common  law  no  fraud  was  reme- 
died which  should  defeat  an  after  pur- 
chase, but  only  that  which  was  com- 
mitted to  defraud  a  former  interest.  Cro. 
Eliz.  445,  and  pp.  7  &  8,  supra;  yet 
there  is  a  dictum  of  Lord  JMansfield's  to 
the  contrary,  in  Cadogan  v.  Kennett, 
Cowp.  434.  [The  words  of  the  act,  it 
will  be  observed,  are  very  large  and 
comprehensive.  They  include  every 
"  conveyance,  grant,  charge,  lease,  es- 
tate, and  limitation  of  use."  Therefore, 
it  has  been  held  that  the  uses  declared 
on  a  recovery  might  be  void  as  against 
a  subsequent  purchaser,  though  the  re- 
covery itself  remained  valid  and  destroy- 
ed an  estate  tail  for  his  benefit.  Doe  d. 
Baverstock  v.  Rolfe,  8  A.  «&.  E,  6-50.] 
Copyholds  are  within  this  act.  Doe  d. 
Bottriell,  5  B.  &.  Ad.  131  ;  Currie  v. 
Nind,  1  Myl.  &  Cr.  17.  [Deed.  Baver- 
stock V.  Rolfe,  8  A.  &  E.  6.50.  r  ^^a  -i 
*But    not    personal    property,    '-  -■ 

Jones  V.  Croucher,  I  Sim.  &  Stu.  315, 
and  Sugd.  V.  and  P.  936,  llth  ed. 

There  are  also  cases  to  which,  from 
their  nature,  as  importing  the  absence 
of  valuable  consideration,  the  .statute  of 
27  Eliz.  c.  4,  does  not,  it  seems,  extend; 
for  instance,  a  voluntary  endowment  of 
a  charity  is  not  defeated  by  a  subsequent 
conveyance  for  valuable  consideration. 
Corporation  of  Newcastle  v.  Attorney- 
General,  12  CI.  &  F.  402.] 


The  subject  of  sales  and  mortgages  of  chatties  without  delivery  of  pos- 
session, has  given  rise,  in  America,  to  more  protracted  discussion  than  any 
other  matter,  probably,  in  the  law^.  For  precision  in  regard  to  so  nice  a 
subject,  it  will  be  necessary  to  consider  the  different  courts  of  the  Union 
separately:  but  they  may  be  grouped  conveniently  in  three  classes.  In 
the  first,   which   includes  the  courts  of  the  United  States,  of  Kentucky, 


twyne'scase.  47 

Illinois,  Alabama,  and  Indiana,  the  principle  established  is,  that  unless  pos- 
session follow  the  deed, — that  is,  ^f  the  possession  be  retained  inconsistently 
with  the  legal  nature  and  purpose  of  the  transfer, — the  conveyance  is,  by  the 
statutes  of  Elizabeth,  fraudulent  in  law,  and  void,  against  creditors  and  sub- 
sequent bona  fide  purchasers ;  and  by  these  courts  it  is  held,  that  in  case 
of  contingent  sales  or  mortgages,  the  retaining  of  possession  is  not  incon- 
sistent with  the  nature  of  the  conveyance.  And  this  was  the  law  of  Vir- 
ginia before  the  late  case  of  Davis  v.  Turner.  The  law  of  New  Hampshire 
and  South  Carolina  may  be  considered  in  this  connexion,  as  resembling  this 
class  more  nearly  than  any  other.  The  second  class,  which  takes  in  the 
courts  of  New  York,  as  they  stood  before  the  Revised  Statutes,  of  Pennsyl- 
vania, Connecticut  and  Vermont,  difi"ers  from  the  first,  chiefly  in  holding 
that  delivery  of  possession  is  necessary  as  against  creditors,  in  case  of  mort- 
gages and  contingent  transfers,  as  well  as  in  cases  of  absolute  sales ;  they 
hold  that  all  conveyances  are  fraudulent  in  law,  where  possession  does  not 
pass  with  the  title,  unless  it  has  been  retained  for  reasons  satisfactory  to 
the  court.  In  the  third  class,  the  distinction  taken  in  the  first,  between 
absolute  and  contingent  sales,  is  adopted,  but  it  is  held,  that  retaining  pos- 
session inconsistently  with  the  conveyance  is  only  evidence  of  fraud  for  the 
jury.  This  class  comprehends  the  courts  of  Massachusetts,  Maine,  Ohio, 
Tennessee,  Missouri,  Georgia,  Texas  and  North  Carolina. 

It  is  believed  that  the  real  difference  in  principle,  between  the  last  and 
two  former  classes,  is  upon  the  question  what,  in  law,  constitutes  the  fraud 
which,  under  these  statutes  of  Elizabeth,  avoids  conveyances.  The  defini- 
tion of  fraud  is  always  matter  of  law ;  and  the  point  really  in  issue,  in  the 
controversies  that  have  taken  place  on  this  subject,  appears  to  be,  whether 
this  statutory  fraud  consists  in  the  debtor's  merely  reserving  to  himself  a 
trust  out  of  the  property  conveyed,  or  whether  like  fraud  at  common  law  it 
lies  solely  in  an  actual  design  to  cheat.  It  is  commonly  supposed  that  the 
distinction  is  merely  as  to  the  nature  and  weight  of  the  evidence  which 
retention  and  possession  aff"ords ;  whether  it  raises  a  legal  presumption  of 
fraud,  of  which  the  court  are  to  take  cognizance,  or  only  a  natural  presump- 
tion with  which  the  jury  are  to  deal.  But  this  distinction  appears  to  be 
merely  a  derivative  one,  flowing  necessarily,  or  reasonably,  out  of  the  diver- 
sity above-mentioned,  as  to  the  legal  nature  and  definition  of  fraud,  which  is 
the  essential  difference  at  the  bottom  of  the  whole  affair. 

(1).  The  federal  courts,  and  those  which  follow  them,  seem  to  hold, 
what  there  are  many  and  strong  reasons  for  believing  to  be  the  true  inter- 
pretation of  the  statutes  of  Elizabeth,  that  fraud  under  those  statutes,  con- 
sists in  the  debtor's  reserving  to  himself  some  interest  or  benefit  out  of  the 
property  conveyed :  and  under  this,  they  have  adopted  the  general  princi- 
ple of  evidence  settled  in  Twnye's  case,  that  retaining  possession  of  chattels 
after  a  conveyance  of  them,  raises  in  law  a  presumption  of  a  secret  trust, 
that  is,  is  prima  facie  evidence  of  a  secret  trust,  or  of  fraud,  but  may  be 
explained  or  rebutted, — presumptio  juris,  though  not  juris  et  de  jure.  The 
presumption  is  in  its  nature  a  legal  one,  for  the  rights  and  interests  result- 
ing from  transactions  are  matter  of  law.  Now  if  the  law  makes  the  pre- 
sumption, the  law  must  determine  when  the  presumption  is  rebutted ;  for 
to  let  the  jury  decide  generally  upon  the  sufficiency  of  any  circumstances 
to  rebut  the  presumption,  would  be  to  make  the  jury  judges  of  the  weight 


48  smith's    leading    cases. 

of  the  presumption,  and  would  therefore  change  the  nature  of  this  presump- 
tion from  being  one  of  law,  to  a  merely  natural  one  of  fact;  or  from  being  prima 
facie  evidence,  to  being  merely  competent  and  sufficient  evidence.  Accord- 
ingly, these  courts  have  proceeded  to  determine,  from  considerations  of  good 
sense,  and  from  the  nature  and  reason  of  this  rule  of  evidence,  what  is  the 
legal  limit  of  the  presumption  ;  in  other  words,  how  far  it  may  be  rebutted. 
And,  at  once,  they  say,  that  if  the  conveyance  itself  be  in  its  nature  valid 
and  such  as  the  law  gives  effect  to,  no  possession  which  naturally  or  reason- 
ably results  from  the  design,  purpose  and  practical  operation  of  that  con- 
veyance can  be  in  its  nature  fraudulent,  or  can  raise  a  presumption  of  any 
secret  trust  beyond  the  import  of  the  conveyance ;  and  therefore,  when  the 
law  has  determined  that  mortgages,  and  conveyances  to  the  use  of  creditors, 
are  valid  transactions,  it  would  be  contradictory  to  consider  that  any  reten- 
tion of  possession  which  is  justified  and  allowed  by  the  nature  and  purpose 
of  the  transfer,  can,  by  its  own  mere  operation,  render  the  conveyance 
invalid ;  and,  upon  absolute  sales,  such  retention  of  possession  as,  being 
reasonable  or  unavoidable,  is  practically  consistent  with  an  absolute  transfer, 
not  only  cannot  raise  any  suspicion  that  the  transfer  is  not  absolute,  but 
must  be  considered  as  having  been  ratified  and  approved  by  the  law,  when 
it  sanctions  the  principle  of  absolute  sales  by  debtors.  But  it  is  very  plain 
that  beyond  this,  rebuttal  cannot  extend,  without  upsetting  the  principle  of 
a  legal  presumption  or  prima  facie  evidence  altogether,  and  conflicting  with 
the  previous  definition  of  fraud.  For,  it  was  an  aj^parent  irreconcilability 
of  the  possession  with  the  conveyance  that  raised  in  law  the  presumption 
of  a  secret  trust  behind  the  conveyance,  and  unless  all  real  irreconcilability 
is  removed,  the  presumption  of  law  certainly  is  not  removed.  The  posses- 
sion of  goods  constitutes  a  use  in  him  who  possesses,  and  if  the  possession 
be  in  derogation  of  the  conveyance,  it  must  be  by  a  secret  consent  or  agree- 
ment of  the  parties.  (2).  The  courts  referred  to  in  the  second  class, 
above-mentioned,  which  comprise  the  noted  cases  of  Sturtevant  and  Keep 
V.  Ballard,  and  Clow  and  another  v.  Woods,  may  be  regarded  as  proceed- 
ing on  the  same  general  notion  of  fraud,  with  the  first  class,  and  adopt- 
ing the  same  rule  of  evidence  as  to  the  presumption  of  fraud  from  retention  of 
possession.  But  they  have  been  led  by  reasons  of  public  policy,  and  a 
desire  to  prevent  debtors  from  acquiring  a  false  credit  in  the  eyes  of  the 
world,  to  narrow  the  exception  to  the  presumption,  so  that  the  exception 
shall  not  embrace  all  those  cases  in  which  a  retention  of  possession  is 
allowed  by,  or  is  merely  not  inconsistent  with,  the  nature  of  the  conveyance, 
but  only  those  in  which  it  is  strictly  required  by  it;  and  thus  the  legal  pre- 
sumption of  fraud  will  apply  to  all  cases  except  where  the  law  approves  of 
the  conveyance  and  its  purpose,  and  the  non  delivery  of  possession  is  abso- 
lutely necessary  to  give  efi'ect  to  the  conveyance  and  accomplish  its  pur- 
pose. Contingent  sales,  or  mortgages,  are  therefore  within  the  application 
of  the  principle.  And  as  the  mortgagee  has  an  immediate  right  to  the  pos- 
session, any  retention  is,  obviously,  as  much  in  derogation  of  the  rights 
transferred  by  the  conveyance,  in  case  of  mortgages  as  of  absolute  sales, 
and  therefore  should  raise  the  same  presumption  of  a  secret  trust  behind 
the  conveyance.  The  rule  adopted  in  these  tribunals,  that  the  court  is  in  all 
cases  to  pronounce  upon  the  sufficiency  of  the  motives  and  reasons  for  non- 
delivery, results  directly  from  the  principle  of  prima  facie  evidence,  or  of 


f 


twyne'scase.  49 

the  presumption  being  one  of  law.  (3).  The  third  class  differs  widely  from 
both  of  these ;  but  the  diversity,  as  above  remarked,  appears  to  grow  out 
of  a  difference  as  to  the  legal  constitution  and  definition  of  fraud.  These 
courts  hold  that,  as  to  sales  of  chattels,  fraud  under  these  statutes  as  well 
as  at  common  law,  consists  only  in  an  actual  intention  to  hinder  and  delay 
creditors,  which  is  necessarily  a  mere  consideration  of  fact;  and  that  the 
reservation  of  a  trust,  expressly  or  impliedly,  upon  a  transfer  of  chattels, 
is  not,  in  itself,  legally  a  fraud.  It  is  held,  that  the  retaining  of  the  pos- 
session upon  a  conveyance,  inconsistently  with  the  legal  completeness  of 
the  transaction  and  the  ordinary  practice, — which  applies  therefore  only 
to  absolute  sales,  and  not  to  mortgages, — raises  a  presumption  that  the  con- 
veyance is  colourable ;  and  with  this  presumption,  the  whole  evidence,  as 
this  definition  of  fraud  necessarily  requires,  is  referred  to  the  jury,  upon  the 
question  whether  there  was,  or  not,  in  point  of  fact,  an  intention  to  hinder 
and  delay  creditors.  The  cases,  indeed,  in  these  states,  generally  speak  of 
possession  being  prima  facie  evidence  of  fraud ;  but  their  practice  necessa- 
rily implies  that  it  is  merely  competent  and  sufficient  evidence,  raising  a 
natural  presumption;  for  the  court  does  not  exercise  the  right  of  judging 
of  the  sufficiency  of  the  evidence  to  rebut  the  presumption  of  fraud,  but 
leaves  every  case  to  the  jury ;  and  to  let  the  jury  negative  the  presumption 
if  they  will,  is  to  make  them  the  judges  of  its  weight  and  extent :  it  is 
obvious,  too,  that  in  point  of  reason  and  good  sense,  the  retaining  of  possession 
does  not  raise  the  same  strong  and  constant  presumption  of  an  actual  design 
to  defraud,  as  it  does  of  a  trust;  and,  it  may  be  added,  that  the  making  the 
test  of  fraud  to  consist  in  the  presence  or  absence  of  a  particular  external 
fact,  varying  in  each  separate  case,  necessarily  does  away  with  every  thing 
like  a  general  and  permanent  presumption.  It  can  therefore  hardly  be  said 
that  the  rule  in  Twyne's  case  exists  at  all  in  Massachusetts,  Maine,  &c. ; 
and  it  may  be  considered,  that  this  principle  and  rule  of  evidence  necessa- 
rily perish,  when  the  definition  of  fraud  which  gave  rise  to  them,  is  aban- 
doned. 

(1).  Following  the  arrangement  suggested  above,  we  may  consider  the 
Federal  courts,  the  courts  of  Kentucky,  Illinois,  Alabama,  and  Indiana, 
first,  as  agreeing  substantially,  though  sometimes  differing  from  one  another 
in  the  form  in  which  the  principle  is  laid  down,  and  differing  in  some  points 
of  its  application. 

In  the  Federal  Courts,  in  Hamilton  v.  Russell,  the  principle  of  Edwards 
V.  Harben,  was  approved  and  adopted  by  Chief  Justice  Marshall.  "An 
unconditional  sale,  where  possession  does  not  'accompany  and  follow  the 
deed,'  is,  with  respect  to  creditors,  on  the  sound  construction  of  the  statute 
of  Elizabeth,  a  fraud,  and  should  be  so  determined  by  the  court.  [Meeker 
et  al.  V.  Wilson,  1  Gallison,  419,  423,  S.  P.  diet.;  Phettiplace  v.  Sayles,  4 
Mason,  312,  322,  S.  P.  diet.,  where  the  rule  is  rested  on  public  policy.] 
The  distinction  is,  between  a  deed  purporting  on  the  face  of  it  to  be  absolute, 
so  that  the  separation  of  the  possession  from  the  title,  is  incompatible  with 
the  deed  itself;  and  a  deed  made  upon  condition  that  does  not  entitle  the 
vendee  to  the  immediate  possession ;"  Hamilton  v.  Russell,  1  Cranch,  309, 
316.  In  U.  S.  V.  Hooe  et  al.  3  Id.  73,  89,  the  dicta  of  the  chief  justice  seem 
to  recognise  the  rule  as  being,  that  retaining  possession  after  an  absolute 
bill  of  sale,  is  a  fraud  in  law ;  but  if  the  conveyance,  from  its  terms,  is  to 

Vol.  i._4 


50  S  M  I  T  II '  8     L  E  A  D  I  N  G     C  A  S  E  ?. 

leave  the  possession  in  the  grantor,  as  in  case  of  a  mortgage,  retaining  pos- 
session is  no  evidence  of  fraud.     In  Conard  v.  The  Atlantic  Insurance  Co., 
1  Peters,  388,  449,  it  is  said,  that  where  the  sale  is  not  absolute,  but  con- 
ditional, the  want  of  possession,  if  consistent  with  the  stipulations  of  the 
parties,  and,  a  fortiori,  if  flowing  from  them,  is  not,  per  se,  a  badge  of  fraud. 
And  in  D'Wolf  v.  Harris,  4  Mason,  515,  at  Nisi  Prius,  it  was  ruled,  in  case 
of  a  mortgage,  or  defeasible  conveyance — that  if,  by  the  terms  of  the  contract, 
or  by  necessary  implication,  the  parties  agree,  that  possession  shall  not  pass, 
there  is  nothing  fraudulent  in  that.      It  will  be  observed,  that  these  cases 
admit  retention,  according  to  the  terms  of  the  deed,  only  where  the  sale  is 
not  absolute;  and  the  rule  to  be  extracted  from  them  appears  to  be,  that  if 
the  title  be  transferred  absolutely  to  the  grantee,  for  his  own  use,  possession 
must,  in  every  case,  be  delivered,  as  soon  as  practicable,  and  as  far  as  prac- 
ticable, according  to  the  circumstances  of  the  property  and  the  parties,  or 
it   is  void  against   creditors;    but  if  the  title   pass   only  conditionally  or 
defcasibly,  possession  may  then  be  in  either  one  or  the  other ;  provided,  it 
be  not  held  contrary  to  the  intention  of  the  parties,  as  drawn  from  the  deed; 
the  right  to  control  the  possession  by  agreement  in  the  deed,  not  existing 
in  case  of  an  absolute  transfer  of  the  interest.    This  distinction  is  very  fully 
illustrated  in  the  Kentucky  case  of  Hundley  v.  Webb,  post;  and  the  prin- 
ciple that  inconsistency  with  the  agreement  in  the  deed,  will,  even  in  case 
of  a  mortgage,  render  the  retaining  of  possession  a  fraud,  is  supported  by 
the  decision  in  Jordan  v.  Turner,  in  Indiana,  post.     It  is  obvious,  that  the 
principle  of  Hamilton  v.  Russell,  will  not  avoid  a  conveyance  for  want  of 
immediate  possession,  where  the  bill  of  sale  is  the  transfer  of  property  not  within 
the  power  of  the  parties;  for  the  non-accompaniment  of  possession  is  then 
not  inconsistent  with  the  conveyance  :  and,  accordingly,  it  is  decided,  that 
an  assignment  of  a  ship  or  goods  at  sea,  will  transfer  the  property,  so  as  to 
prevail  against  a  subsequent  attachment;  provided,  the  vendee  take  posses- 
sion within   a  reasonable  time   after  their  arrival ;  Wheeler  v.   Sumner,  4 
Mason,  183;  Conard  v.  The  Atlantic  Insurance  Co.     But  if  he  do  not  take 
possession  within   a  reasonable  time,  the   same  presumption  of  legal  fraud 
arises,  as  if  the  possession  had  originally  been  practicable,  and  been  withheld ; 
Meeker  et  al.  v.  Wilson.     The  case  of  an  assignment  to  a  trustee,  for  the 
benefit  of  creditors,  was  said  by  Chief  Justice  Marshall,  not  necessarily  to 
fall  within  the  principle  of  Russell  v.  Hamilton ;  being  a  transfer,  not  to 
the  immediate  use  of  the  transferee,  but  for  the  trustee  to  dispose  of  for  a 
particular  purpose :  "  The  continuance   of  the  possession  with  the  donor, 
until  the  trust  can  be  executed,  may  not  be  so  incompatible  with  the  deed, 
as  to  render  it  absolutely  void  under  all  circumstances.      The  court  does  not 
mean  to  express  any  opinion  on  this  point,  further  than  to  say,  that  it  is 
not  supposed  to  be  decided  in  Hamilton  v.  Russell.     Brooks  v.  Marbury, 
11  Wheaton,  79,  82.     Upon  the  whole,  the  principle  established  in  the 
Courts  of  the  United  States  seems  to  be  : — that  the  transaction  is  fraudulent 
in  law,  and  void  against  creditors,  if  the  possession  be  retained  inconsistently 
with   the  purpose,  trust,  and  appropriation  of  the   property,  as  fixed  by 
the  legal  operation  of  the  deed;  that  in  absolute  sales,  the  possession  must 
be  delivered  in  a  reasonable  time,  for  the  nature  and  purpose  of  the  trans- 
action  require  it;  but  in  mortgages,  and  other  conveyances  not  absolute, 


twyne's    case.  51 

possession  may  be  retained  without  fraud;  for  that  is  not  inconsistent  with 
the  object,  design  and  nature  of  the  transaction. 

In  Kentucky,  the  subject  was  examined  very  ably  by  Robertson,  C.  J., 
in  Hundley  v.  Webb,  3  J.  J.  Marshall,  643,  and  the  following  rule  settled 
as  the  true  meaning  of  the  rule  in  Edwards  v.  Harben,  and  Hamilton  v.  Rus- 
sel:  Unless  possession  be  in  conformity  with  the  title  and  interest  as  vested 
by  the  deed,  it  is  a  fraud  by  judgment  of  law ;  it  is  not  a  question  of  morals 
or  intention,  but  a  conclusion  of  law  as  to  the  validity  of  the  sale  as  against 
creditors  :  Therefore  an  absolute  sale  is  invalid,  unless  possession  be  given, 
whatever  agreement  to  the  contrary  there  may  be  in  or  out  of  the  deed,  and 
whatever  reason,  aliunde,  may  be  shown  for  retaining  possession  :  but  in 
mortgages,  the  title  is  only  contingently  transferred ;  it  is,  in  fact,  severed 
into  two  parts ;  the  bare  legal  title  passing  defeasibly,  and  the  more  sub- 
stantial equitable  title,  not  passing  at  all ;  and  the  retaining  of  the  posses- 
sion is  therefore  not  inconsistent  with  the  title  created  by  the  deed,  and  is 
not  a  fraud  in  law.  These  distinctions  accord  with  all  that  has  been  decided 
in  Kentucky,  before  and  since ;  and  following  them,  the  other  cases  may  be 
arranged  under  the  heads  of  absolute  transfers,  and  transfers  not  absolute. 
That  an  absolute  sale,  where  possession  is  retained  by  the  vendor,  is  fraudu- 
lent in  law,  and  entirely  void,  is  decided,  in  Dale  v.  Arnold,  2  Bibb,  605 ; 
Allen,  &c.,  V.  Johnson,  4  J.  J.  Marshall,  235;  Lyne,  &c.,  v.  Bank  of  Ken- 
tucky, 5  Id.  545,  574  ;  and  is  recognized  and  applied  in  Laughlin  v.  Fergu- 
son and  others,  6  Dana,  111,  119;  and  Daniel,  &c.  v.  Morrison's  Executors, 
&c.,  id.  182,  (a.  d.  1888  ;)  and  in  the  latter  case,  though  the  consistency  of 
the  rule  with  either  ''sound  policy  or  the  harmony  of  legal  science"  was 
doubted,  and  it  was  doubted  whether  both  principle  and  justice  would  not 
have  been  better  served  by  originally  making  it  only  prima  facie  evidence, 
and  a  question  of  actual  intent,  yet  it  was  declared  to  be  "  too  firmly  estab- 
lished by  the  authority  of  adjudged  cases  to  be  judicially  overruled  :"  and 
again  in  Woodrow  v.  Davis,  et  al.  2  B.  Monroe,  298,  where  an  earnest 
attack  appears  to  have  been  made  upon  the  doctrine,  the  court  declared  that- 
no  principle  had  been  more  conclusively  settled  in  that  state,  by  adjudged 
cases,  or  more  invariably  recognized  and  applied,  than  that  which  denounces 
a  retention  of  the  possession,  and  use,  and  ostensible  ownership  of  a  movable, 
after  an  absolute  sale  of  the  title,  as  a  fraud,  conclusive  and  intraversable,  as 
against  previous  creditors,  and  subsequent  creditors  who  have  become  such 
while  that  possession  was  retained,  and  against  purchasers,  bona  fide ;  and 
that  it  was  beyond  the  power  of  the  courts  now  to  change  it.  And  still 
more  recently,  (1847 — 8)  the  Court  of  Appeals  of  that  state  declared  that 
the  doctrine  that  sales  of  personal  property,  when  the  possession  does  not 
accompany  the  sale,  but  remains  with  the  vendor,  are  fraudulent  and  void, 
as  to  creditors  and  subsequent  purchasers,  is  too  well  established  to  require 
a  discussion,  or  reference  to  authorities  for  its  support;  Waller  v.  Cralle,  8 
B.  Monroe,  11.  And  "  the  condition  of  the  parties  at  the  time  of  the  sale, 
the  vendee  residing  with  the  vendor,  does  not  take  the  sale  out  of  the  opera- 
tion of  this  rule  of  law.  An  actual  change  of  possession,  so  far  as  the  thing 
sold  is  susceptible  of  it,  is  absolutely  necessary  to  the  validity  of  the  sale  as 
to  creditors  and  subsequent  purchasers,  whenever  the  vendor  at  the  time  of 
the  sale,  is  in  the  possession  of  the  property.  And  this  transmutation  of  pos- 
session to  be  effectual,  must  not  be  merely  nominal  or  momentary,  but  must 


52  smith's     LEADINQCA8ES. 

1)6  real,  actual  and  open,  and  such  as  may  be  publickly  known ;"  Waller  r. 
Cralle."  And  a  continued  possession  by  the  vendor,  as  ostensible  owner, 
after  an  absolute  bill  of  sale,  though  it  be  under  articles  of  agreement  with 
the  vendee  that  the  vendor  shall  be  employed  as  his  overseer,  or  under  a 
contract  of  hire,  is  equally  fraudulent  and  void;  Stephens'  Administrator  v. 
Barnett,  Adra.,  7  Dana,  257,  261 ;  Woodrow  v.  Davis  et  al.  And  not  only 
must  possession  be  delivered,  but  it  must  continue  in  the  vendee;  Meredith 
V,  Sanders,  2  Bibb,  101 ;  for  the  matter  is  not  helped  by  a  temporary  delivery, 
and  a  re-delivery  on  loan,  though  the  sale  and  loan  be  honest,  and  the  sale 
be  on  valuable  consideration,  for  it  is  a  trust,  and  gives  the  vendor  a  false 
credit ;  and  it  is  error  to  leave  the  matter  to  a  jury  ;  Goldsbury  v.  May,  1 
Littell,  254 ;  and  a  redelivery  on  hiring  or  other  bailment  would  be  equally 
bad  :  and  no  intervention  of  third  persons,  as,  by  a  sale  through  the  me- 
dium of  a  trustee  or  agent,  and  a  hiring  by  the  vendee  to  the  trustee,  and 
by  the  trustee  to  the  vendor,  or  other  management,  will  avail ;  if  the  pos- 
session be  not  actually  and  visibly  transferred  and  vested  with  the  title,  the 
sale  is  void  by  "  inexorable  judgment"  of  law,  without  regard  to  fairness 
of  purpose  or  value  of  consideration ;  Laughlin  v.  Ferguson.  Of  course,  the 
vendee  is  not  obliged  to  keep  the  possession  forever;  but  he  cannot  transfer 
it  to  any  one  but  a  stranger  to  the  contract,  unless  he  has  remained  in  pos- 
session long  enough  to  show  that  the  delivery  to  him  was  not  merely  formal 
and  colourable;  Breckenridge  v.  Anderson,  3  J.  J.  Marshall,  710,  714.  And 
the  two  last  cited  cases  show,  that  where  property  is  held  in  trust,  an  abso- 
lute sale  is  equally  within  the  rule;  but  in  the  case  of  the  sale  of  a  chattel, 
at  the  time  in  possession  of  another  on  hire,  the  vendee's  not  having 
possession  till  the  hiring  is  ended,  is  neither  fraud,  nor,  alone,  evidence  of 
it ;  for  one  is  the  sale  of  a  chattel,  and  the  other  of  a  reversion  :  and  in  the 
latter  case,  the  legal  possession  is  considered  as  being  connected  with  the 
right  of  property,  and  as  following  the  transfer  of  it ;  Butt  v.  Caldwell, 
4  Bibb,  458.  The  rule  of  fraud  in  law  applies  only  to  voluntary  sales, 
and  not  to  coercive  sales  by  process  of  law ;  Greathouse,  &c.,  v.  Brown,  5 
Monroe,  280  ;  yet  leaving  possession  with  the  former  owner  in  such  case, 
though  not  a  fraud  in  law,  is,  without  explanation,  some  evidence  of  fraud 
in  fact ;  Breckenridge  v.  Anderson  ;  Laughlin  v.  Ferguson ;  Stephens'  ad- 
ministrator V.  Barnet,  adm. ;  and  that  fact  alone  would  be  suflScient  to 
authorize  the  jury  to  infer  fraud  in  fact,  if  they  saw  fit ;  Kilby  v.  Haggin, 
3  J.  J.  Marshall,  208  ;  Allen  et  al.  v.  Johnson,  4  id.  235,  237.  And 
this  exception  extends  only  to  an  actual  sale  by  the  sheriff,  according  to 
the  requisitions  of  the  law ;  for  it  is  only  when  the  legal  formalities  are 
followed,  that  sufficient  fairness  and  notoriety  are  presumed  ;  and  a  private 
voluntary  sale  by  the  debtor  to  pay  debts  for  the  satisfaction  of  which  an 
execution  is  in  the  hands  of  the  sheriff,  would  not  be  within  the  exception ; 
Laughlin  v.  Ferguson,  &c. :  and  though  there  be  a  formal  sale  by  the 
sheriff,  yet  if  it  be  in  fact  collusive,  and  made  by  the  private  agreement 
and  understanding  of  the  parties,  and  not  by  coercion  of  law,  it  becomes 
subject  to  the  same  rules  of  law  in  regard  to  possession,  which  are  applied 
to  private  sales :  and  the  bare  act  of  leaving  the  property  in  possession 
of  the  debtor,  renders  the  sale  ijpm  facto  fraudulent  and  void ;  Stephens' 
Administrator  v.  Barnett,  Adm.,  7  Dana,  257,  260.  As  to  transfers  not 
alsohite,  the  rule  is,  that  if  by  the  legal  operation  of  the  deed  or  convey- 


T  W  Y  N  E  'S    C  A  S  E.  53 

ance,  the  title  does  not  pass  absolutely,  but  only  conditionally  or  contingently, 
then  the  requirement  of  possession  attending  the  title  is  satisfied  without 
delivery  of  possession.  The  contingency,  however,  must  be  in  the  title  ; 
for,  if  the  legal  effect  of  the  deed  be,  an  executed  contract  passing  the  whole 
property  absolutely,  a  collateral  a</reemcnt  inserted  in  the  deed,  that  the 
owner  will  deliver  possession  when  called  on,  will  not  have  any  saving 
efficacy  :  the  sale  will  be  fraudulent  and  void  in  law ;  Grimes  v.  Davis,  1 
Littell,  241 ;  and  the  contingency  or  conditionality  must  spring  from  the 
opei'ation  of  the  deed  itself;  for  an  extrinsic  agreement  to  convert  an  absolute 
transfer  into  a  conditional  one,  is  not  admissible :  Hundley  v.  Webb,  and 
Laughliu  V.  Ferguson .  A  mortgage  presents  a  case  of  that  kind  of  contingency 
in  the  transfer  of  the  title,  which  saves  the  necessity  of  delivering  possession  : 
the  subject  is  examined  in  Head,  Hobbsetal.  v.  Ward,  et  al.,  IJ.  J.  Marshall, 
280  ;  and  it  is  determined  that,  till  forfeiture,  the  title,  effectually  and  vir- 
tually, does  not  pass;  and  therefore  retaining  possession  is  not  fraudulent 
per  se  :  and  that,  retaining  possession,  even  after  forfeiture,  is  not  "  of  itself, 
unconnected  with  any  other  circumstance  of  lapse  of  time  or  the  conduct  of 
the  mortgagee,  to  be  considered  a  strong  badge  of  fraud :  the  deed  is  still  a 
mortgage ;  the  right  of  the  mortgagee  is  still  contingent  and  collateral ;  and 
the  possession  of  the  mortgagor  is  not  necessarily  inconsistent  with  the 
title."  But  though  it  is  conclusively  settled  that  in  case  of  a  mortgage 
non-delivery  is  not  a  fraud  in  law,  yet  it  seems  that  it  will,  even  before  for- 
feiture, be  competent  evidence  of  fraud  in  fact  for  the  jury;  M'Gowen  v. 
Hoy,  5  Littell,  239 ;  and  possession  after  forfeiture  certainly  "  mai/  be 
evidence  of  fraud,  and  combined  with  other  circumstances,  or  even  alone,  may 
be  satisfactory  to  a  jury  ;"  Bucklin  v.  Thompson,  1  J.  J.  Marshall,  223,  227  ; 
but  it  is  to  have  no  more  weight  than  the  circumstances  show  it  to  be  enti- 
tled to;  and  "  in  many,  perhaps  most  cases,  it  may  not  be  any  evidence  of 
even  a  fraud  in  fact ;"  Snyder  v.  Hitt,  2  Dana,  204.  A  conveyance  in  trust 
for  creditors  is  another  instance  of  a  transfer  not  absolute,  to  which  the 
exception  applies,  that  possession  consistent  with  the  terms  and  objects  of 
the  deed  is  not  legal  fraud,  though  it  is  admitted  to  be  a  circumstance  from 
which  fraud  may  be  inferred,  susceptible  of  being  counteracted  by  proof, 
and  explained  or  reconciled  with  honesty  and  fair  dealing;  and  therefore 
the  fact  that  one  member  of  a  firm  which  has  made  an  assignment  in  trust 
for  creditors,  remains  in  possession  as  an  agent  employed  by  the  trustees  to 
assist  them  in  executing  the  trust  does  not  avoid  the  assignment ;  Vernon, 
&c.  V.  Morton  and  Smith,  8  Dana,  247,  254 ;  Christopher  v.  Covington  and 
Smith,  2  B.  Monroe,  357,  358.  Conditional  sales  are  not  affected  by  this 
rule  of  fraud,  not  being  present  conveyances  of  the  title  ;  and  delivery  to 
the  vendee  is  not  fraudulent  in  law;  yet  it  may  go  to  the  jury  as  evidence 
from  which  a  fraudulent  intent  may  be  found  by  them  ;  Baylor  v.  Smither's 
Heirs,  1  Littell,  106. 

In  Illinois  ;  in  Thornton  v.  Davenport  et  al.,  1  Scammon,  296,  (con- 
firmed in  Kitchell  v.  Bratton,  id.  301,)  it  was  settled,  that  upon  an  abso- 
lute bill  of  sale,  non-accompaniment  of  possession,  is  a  fraud  in  law ;  but  if 
the  possession  be  in  accordance  with  the  right  and  title  created  by  the  deed, 
it  is  not  fraudulent :  that  mortgages,  marriage-settlements,  and  limitations 
over,  are  valid,  without  delivery,  if  possession  be  with  the  person  at  the 
time  entitled  to  it;  and  therefore  a  bona  fide  mortgage  without  delivery  of 


54  smith's     LEADING     CASES. 

possession  was  Leld  good.  One  judge  dissented,  and  held  that  retention  on 
a  mortgage  was  equally  fraudulent  as  on  an  absolute  sale;  and  approved 
tbe  principle  in  Clow  and  another  v.  Woods,  (helmc.^  In  the  late  case  of 
Rbines  v.  Phelps  et  al.,  3  Oilman,  455,  464,  the  rule  in  Thornton  v.  Daven- 
port, was  repeated  and  enforced,  and  the  point  was  declared  to  be  distinctly 
settled  in  that  state,  and  it  was  believed  on  reason,  and  the  most  approved 
authorities. 

In  Alabama  after  much  confusion  and  apparent  contradiction,  the  rule 
appears  to  be  settled  substantially  to  the  same  effect.  In  Hobbs  v.  Bibb,  2 
Stewart,  54,  the  principle  and  the  cases  are  examined  at  length,  by  Lip.scomb, 
C.  J.,  and,  with  a  strong,  and  not  very  temperate  expression  of  opinion, 
against  the  rule  of  fraud  in  law,  he  decides,  that  on  a  sale  and  re-hiring  of 
negroes,  it  should  go  to  the  jury,  whether  there  was  a  fraudulent  intent  or  not. 
In  Martin  v.  White,  Admn.,  id.  162,  on  the  authority  of  this  case,  it  was 
decided,  by  Collier,  J.,  that  possession  remaining  with  the  vendor,  after  a 
bill  of  sale  absolute,  was  not  fraudulent,  but  only  prima  facie  evidence  of 
fraud.  In  Ayres  v.  Moore,  id.  336,  before  Lipscomb,  C.  J.,  and  Saffold, 
J.,  the  former  held,  that  the  presumption  of  fraud  might  be  explained  and 
rebutted  j  but  that  the  facts,  that  the  consideration  was  ample  and  bona  fide 
paid,  and  the  bill  of  sale  recorded,  were  not  a  sufficient  explanation ;  that 
the  jury  must  be  satisfied  that  a  sufficient  reason  for  the  retention  existed, 
and  that  no  person  who  had  used  ordinary  prudence  had  been  deceived  ; 
for,  notwithstanding  the  consideration  were  ample  and  bona  fide  paid,  and 
notice  given  to  all  the  world,  yet  if  the  conveyance  was  made  with  a  view 
to  defraud  creditors,  and  the  purchaser  knew  of  this  design,  the  title  was 
void :  Saffold,  J.,  in  a  long  and  very  intelligent  opinion,  held,  that  the  true 
doctrine  was  that  of  the  Federal  courts,  that  it  is  constructive  fraud,  if  posses- 
sion be  not  consistent  with  the  deed;  and,  therefore,  that  the  rule  in  Hobbs 
V.  Bibb,  should  be  narrowed,  so  as  to  allow  the  jury  the  smallest  possible 
discretion ;  and  he  says,  as  has  been  said  in  this  note,  that  the  substance 
of  the  principle  in  Edwards  v.  Harben,  and  Hamilton  v.  Russel,  is,  <'  that 
the  possession  shall  not  be  incompatible  with  the  object  of  the  deed,  or  that 
it  shall  be  consistent  with  its  spirit  and  intent."  In  Paulling  v.  Sturgus  et 
al.,  3  Stewart,  96,  the  dictum  of  Saffold,  J.,  is,  that  the  matter  must  be 
explained  to  the  satisfaction  of  the  court  and  jury.  In  Miller  v.  Thompson, 
3  Porter,  196,  Saffold,  C.  J.,  commented  on  the  cases  of  Hobbs  v.  Bibb, 
and  Ayres  v.  Moore;  he  says,  that  the  former  decided,  that  retention  of  pos- 
session is  not  a  fraud,  per  se,  but  a  presumption  that  may  be  rebutted,  but 
that  what  would  be  sufficient  to  rebut  this  presumption,  was  left  undecided  ; 
that  the  decision  in  Ayres  v.  Moore,  was,  that  the  consideration  being  bona 
fide,  and  the  bill  recorded  was  not  enough ;  '^  but,  it  must  appear,  that  the 
sale  was  not  made  to  hinder  or  delay  creditors ;"  and  that  this  is  to  be  deter- 
mined by  the  jury  from  all  the  circumstances:  and  he  further  says,  that  a 
consequence  of  the  opinion  of  the  court  in  Ayres  v.  Moore  "  would  appear 
to  be,  that  if  '  possession  does  not  accompany  and  follow  the  deed,'  in  the 
true  acceptation  of  these  terms — that  is,  if  the  j^ossession  be  inconsistent 
withy  and  not  subservient  to,  the  object  of  the  conveyance,  the  sale  must  be 
found  by  the  jury,  under  the  instruction  of  the  court,  fraudulent  and  void, 
unless  the  failure  be  satisfactorily  explained;  though  there  be  no  other  objec- 
tion to  the  conveyance;"  and  he  said  that  the  two  cases  referred  to  had 


twyne'scase.  55 

been  influenced  by  Bissell  v.  Hopkins,  which  had  since  been  departed  from. 
In  Bank  of  Alabama  v.  M'Dade,  4  Porter,  252,  negroes  sold  at  public  auc- 
tion by  a  trustee  for  creditors,  were  retained  two  months  to  aid  in  gathering 
in  the  crop  which  they  had  cultivated  :  the  court  held,  on  the  principle  of 
Kidd  V.  Rawlinson,  that  the  publicity  of  the  sale  dispenses  with  immediate 
delivery;  but  if  the  purpose  of  leaving  them  was  unfair ;  or  if  left  so  unrea- 
sonable a  time  as  to  afford  a  presumption  that  the  sale  was  colourable  ;  then 
it  became  fraudulent  and  void ;  but  that  under  the  circumstances  in  this 
case,  "  the  court  might  with  propriety  have  instructed  the  jury,  that  if  the 
possession  was  bona  fide,  such  possession  did  not,  per  se,  avoid  the  sale." 
In  Blocker,  adm'r  v.  Burness,  2  Judges'  Alabama,  354,  (1841,)  where  pos- 
session was  retained  after  an  absolute  sale,  the  jury  were  instructed  that  if 
they  believed  from  the  evidence,  that  the  transaction  was  upon  fair  and  suf- 
ficient consideration,  was  bona  fide,  and  not  intended  to  hinder  and  delay 
creditors,  the  sale  was  valid;  and  this  instruction  was  approved  by  a  majority 
of  the  court.  Ormond,  J.,  approved,  because  he  conceived  it  to  be  the  point 
decided  in  Ayres  v.  Moore,  and  he  agreed  to  Ayres  v.  Moore,  though  he 
could  not  see  the  difference  between  it  and  Hobbs  v.  Bibb.  Goldthwaitk, 
J.,  concurred,  and  thought  Ayres  v.  Moore  did  not  affect  the  general  prin- 
ciple of  Hobbs  V.  Bibb.  Collier,  C.  J.,  dissented,  because  he  thought  that 
the  principle  established  in  Ayres  v.  Moore  required,  that  besides  repelling 
the  actual  presumption  of  an  intent  to  defraud  or  delay  creditors,  the  legal 
presumption  of  fraud  must  be  removed,  by  showing  sufiicient  special  reasons 
why  possession  does  not  follow  the  sale;  for  the  sale  might  be  fair  and  bona 
fide,  and  yet  possession  be  retained  by  subsequent  arrangement,  in  a  manner 
to  make  it  fraudulent.  And  this  opinion  of  Collier,  C.  J.,  appears  now  to 
be  recognized  as  the  law.  After  any  such  sale  as  in  its  nature  contemplates 
an  immediate  change  of  possession,  the  retention  of  possession  is  prima  facie 
evidence,  or  a  legal  presumption,  of  fraud,  and  if  unexplained,  would  be 
sufficient  to  authorize  a  verdict  against  the  vendee  ;  the  presumption,  how- 
ever, may  be  rebutted,  or  explained  away  by  circumstances ;  but  it  will  not 
be  removed,  unless  special  reasons  for  the  retention,  sufficient  in  the  judg- 
ment of  the  court,  are  shown ;  and  when  the  vendor  is  insolvent,  and  no  rea- 
sons are  shown  for  i-etaining  possession,  the  inference  of  fraud  is  conclusive 
in  law ;  Planters'  and  Merchants'  Bank  of  Mobile  v.  Borland,  5  Alabama, 
531,  548;  Borland  v.  Mayo,  8  Id.  lOG.  115;  Mauldin  &  Terrell  v.  Mitchell, 
14  id.  814 ;  Noble  et  al.  v.  Coleman  &  Gunter,  16  id.  77,  83.  See,  also, 
dicta  in  Adams  v.  Broughton,  adm'r,  &c.,  13  id.  731,  740,  743.  In  cases 
of  sales  not  absolute  and  immediate,  possession  according  to  the  terras  of  the 
deed,  is  not  a  badge  of  fraud ;  accordingly,  in  mortgages  and  deeds  of  trust, 
possession  until  the  time  of  forfeiture  or  of  ^ale,  is  riot  any  evidence  of 
fraud ;  but  possession  after  that  time  is  evidence  of  fraud,  though  capable 
of  being  rebutted  by  showing  some  sufficient  reason  why  the  possession  was 
permitted  to  remain;  Magee  v.  Carpenter,  4  Alabama,  409;  Ravisies  v. 
Alston,  Trustee,  5  id.  297;  Wiswallv.  Ticknor  and  Day,  6  id.  179;  Desha, 
Shepherd  and  Co.  v.  Scales,  id.  356 ;  Dearing  v.  Watkins,  16  id.  20,  25 ; 
Beall  and  Beall  v.  Williamson,  14  id.  55,  60;  Simerson  v.  The  Branch 
Bank  at  Decatur,  12  id.  205,  213.  In  the  last  case,  the  exception  of  public 
judicial  sales  is  recognized;  as  well  as  in  Anderson  v.  Brooks,  11  id.  954, 
958. 


56  smith's     LEADINQCASES. 

la  Indiana,  the  principle  and  rule  established  in  Jordan  v.  Turner,  3 
Blackford,  309,  confirmed  and  acted  on  in  Watson  and  Another  v.  Williams 
and  Another,  4  id.  2G,  appears  to  be  in  precise  accordance  with  the  law  of  the 
Federal  courts  as  above  stated,  and  as  more  fully  developed  in  the  earlier 
Virginia  cases,  namely,  that  a  possession  in  the  vendor,  inconsistent  with 
the  conveyance,  is  a  fraud  in  law;  but  possession  consistent  with  the  deed, 
though  it  may  be  prima  facie  evidence  of  fraud,  may  yet  be  explained,  and 
shown  to  be  necessary  and  fair :  ''No  evidence  can  be  admitted  to  explain  a 
possession  which  is  inconsistent  with  the  contract:"  but  evidence  to  explain 
the  possession,  and  prove  fairness,  may  be  received,  "if  such  evidence,  and 
such  retaining  of  possession  by  the  vendor,  are  consistent  with  the  contract 
(or  conveyance);  as,  if  it  be  a  conditional  sale,  or  a  mortgage,  or  if  it  is 
part  of  the  original  contract,  that  the  vendor  should  retain  possession,  until 
after  a  default  should  be  made  in  the  condition  of  the  sale;  or  when  the 
situation  of  the  parties  or  the  goods  is  such,  that  immediate  possession  can- 
not be  taken,  as  in  the  case  of  a  ship  at  sea,  or  a  growing  crop ;  or  where, 
from  any  other  legal  and  bona  fide  circumstance,  immediate  possession 
cannot  be  taken."  On  this  distinction  all  the  later  cases  have  gone.  On 
an  absolute  hill  of  sale,  it  was  held  in  Foley  and  another  v.  Knight,  4  Id. 
420,  that  evidence  to  show  an  agreement,  as  part  of  the  contract,  that  the 
vendor  should  retain  possession  was  inadmissible,  because  it  contradicted 
the  bill ;  but  subject  to  this  restriction,  that  possession  contradictory  of  the 
bill  was  inadmissible,  evidence  might  be  received  to  show  the  possession 
was  not  fraudulent.  In  mortgages,  as  the  mortgagee  has,  upon  a  simple 
mortgage,  an  immediate  right  to  take  possession,  (Case  v.  Winship,  4  id. 
425),  retention  of  possession  by  the  mortgagor,  is  prima  facie  evidence  of 
fraud ;  Hankins  and  another  v.  Ingols,  4  id.  35 :  But  a  mortgage  does  not, 
like  an  absolute  sale,  necessarily  import  that  the  possession  is  to  be  with  the 
grantee,  and  the  parties  may  agree  as  to  who  shall  have  the  possession, 
and  the  principle  still  holds,  that  inconsistency  of  possession,  with  the  deed, 
is  fraud  in  law,  but  possession  not  inconsistent  with  the  deed,  may  be 
explained;  and,  therefore,  where  the  mortgage-deed  declared,  that  the  pro- 
perty is  delivered  to  the  mortgagee  in  his  own  right,  possession,  use  and 
trading  with  the  property,  by  the  mortgagor,  was  decided,  per  se,  to  render 
the  mortgage  fraudulent  and  void;  Jordan  v.  Turner;  but  when  nothing 
was  said  in  the  mortgage-deed,  as  to  who  was  to  have  possession,  evidence 
to  show  why  possession  was  retained,  and  that  the  retainer  was  not  frau- 
dulent, was  decided  to  be  admissible;  Watson  and  another  v.  Williams 
and  another ;  Hawkins  and  another  v.  Ingols.  This  is  the  very  rule  of  the 
Federal  Courts,  as  declared  in  Conard  v.  Atlantic  Ins.  Co..  and  D'Wolf  v. 
Harris.  The  dicta  m  Hankins  v.  Ingols,  in  case  of  a  mortgage,  that  reten- 
tion is  prima  facie  evidence  of  fraud,  must  be  understood,  it  is  supposed,  to 
apply  to  cases  like  that  before  the  court,  where  possession  was  not  incon- 
sistent with  the  conveyance;  and  not  to  mean,  that  possession  inconsistent 
with  the  deed,  is  not  absolutely  fraudulent. 

In  Virginia,  prior  to  the  case  of  Davis  v.  Turner,  (1848),  the  construc- 
tion of  the  rule  had  always  been,  in  exact  accordance  with  Edwards  v.  Har- 
ben,  and  Hamilton  v.  Russell ;  that,  though  such  retention  of  possession  as 
stood  with  the  nature  of  the  conveyance  was  not  fraudulent,  yet  retention, 
or  immediate  re-dclivery,  of  possession,  after  an  absolute  bill  of  sale,  was, 


TWYNE'S    CASE.  57 

per  se,  fraudulent  in  law,  however  free,  in  other  respects,  the  case  might  be, 
from  any  evidence  of  dishonesty  or  unfairness,  and  rendered  the  sale  void  as 
against  creditors,  and  subsequent  purchasers ;  Fitzhugh  v.  Anderson  and 
others,  2  Hening  &  Munford,  289,  303  ;  Alexander  v.  Deneale,  2  Munford, 
341 ;  Kobertson  v.  Ewell,  3  id.  1,  7 ;  Thomas  v.  Soper,  5  id.  28 ;  William- 
son V.  Farley,  Gilmer,  15.  And  though  retention  of  possession  after  a  mort- 
gage was  not  fraudulent ;  Rose's  Adm'x  v.  Burgess,  10  Leigh,  186  ;  yet  a 
retention  after  a  release  of  the  equity  of  redemption,  or  a  sale  to  the  mort- 
gagee, was  ;  Clayborn  V.  Hill,  1  Washington,  177  ;  Glasscock,  &c.  v.  Batton, 
6  Randolph,  78.  It  seems,  however,  that  if  possession  were  bona  fide  taken, 
or  asserted,  before  the  creditor's  lien  attach,  it  would  be  good ;  Sydnor  v. 
Gee,  &c.,  4  Leigh,  535;  Lewis  v.  Adams  and  another,  6  id.  320;  Carr's 
Adm'rs  v.  Glasscock's  Ad'mr,  et  als.,  3  Grattan,  343,  354.  Since  the  early 
cases  before  cited,  the  subject  has  undergone  extensive  and  thorough  discus- 
sion; but  the  principle  originally  settled  in  accordance  with  Hamilton  v.  Rus- 
sell, until  Davis  v.  Turner,  had  not  been  at  aill  shaken  or  altered.  On  the 
contrary,  the  principle  that  possession  consistent  with  the  deed  is  not  fraud- 
ulent, and  possession  inconsistent  with  the  deed  is  fraudulent  in  law,  was 
maintained  up  to  that  time,  and  appeared  to  be  firmly  established.  The 
case  of  Land,  &c.  v.  Jefii'ies,  &c.,  5  Randolph,  211,  turned  upon  the  validity 
and  construction  of  a  deed,  intended  to  be  for  separate  use;  upon  a  fraudu- 
lent deed  being  void  only  against  the  creditors  of  the gra7itor  ;  and  upon  the 
husband's  possession  of  the  wife's  separate  property,  being  not  inconsistent 
with  the  deed ;  but  the  judges  expressed  their  views  upon  the  general  prin- 
ciple of  retention  of  possession,  and  they  were  all  in  perfect  accordance  with 
those  embodied  in  the  decisions  of  the  federal  courts,  viz. :  that  the  incon- 
sistency of  the  possession  with  the  deed,  is  the  matter  which  constitutes 
fraud.  Carr,  J.,  said,  that  "  The  doctrine  of  fraud,  per  se,  is  not  statute 
law ;  and,  therefore,  not  a  strict  positive  thing.  It  is  a  rule  of  the  courts, 
founded  in  reason  and  convenience.  It  is  not  everi/  possible  case,  in  which 
possession  remaining  with  the  grantor,  constitutes  fraud.  The  possession 
may  be  consistent  with  the  deed."  An  absolute  conveyance,  he  said,  should 
be  accompanied  by  possession ;  and,  if  possession  remain  with  the  grantor, 
longer  than  in  the  natural  course  of  fair  transactions  it  ought,  it  raises  a 
presumption  of  a  secret  trust,  and,  unexplained,  constitutes  a  fraud ;  but  it 
may  be  explained, — as  by  showing  in  case  of  a  slave,  that  the  slave  was  so 
ill,  that  a  removal  would  have  endangered  his  life ;  or  in  case  of  the  pur- 
chase of  a  horse  in  the  country,  where  he  is  left  till  he  can  be  sent  for  the 
next  day  ; — this,  obviously,  is  saying  merely,  that  on  an  absolute  sale,  deli- 
very of  possession  need  not  be  instantaneous,  but  is  good  if  made  as  soon  as 
possible  or  practicable.  Green,  J.,  said  :  "A  possession  and  use,  inconsis- 
tent with  the  terms  and  professed  objects  of  the  deed,  makes  the  deed,  per 
se,  fraudulent  and  void ;  since  it  proves  conclusively,  notwithstanding  any 
colourable  conveyance,  that  the  beneficial  right  to  the  property,  is  in  the 
person  who  has  such  use  and  possession ;  and,  therefore,  such  use  and  pos- 
session is  conclusive  evidence  of  an  original  fraudulent  intent  in  the  making 
of  the  deed,  and  avoids  it,  ab  initio  :"  that  parol  proof  of  an  agreement,  in 
relation  to  the  possession  of  property  absolutely  conveyed,  inconsistent  with 
the  legal  effect  of  the  deed,  was,  therefore,  inadmissible ;  but  though  parol 
proof  of  a  collateral  agreement  for  a  possession  inconsistent  with  the  deed,  is 


58  smith'sleadingoases. 

inadmissible,  parol  proof  may  be  given  to  show,  that  really  there  is  no  incon- 
sistency between  the  possession  and  the  deed  :  thus  "  if  the  deed  be  condi- 
tional on  its  face,  proofs  may  be  given  as  to  the  performance  or  non-per- 
formance of  the  condition ;  or,  if  upon  the  face  of  the  deed,  the  property  is 
to  be  disposed  of  by  the  grantor,  for  the  benefit  of  the  grantee ;  or,  if  the 
grantor  retains  the  possession,  not  for  his  own  use,  and  does  not  use  it,  but 
only  for  safe-keeping,  until  the  grantee  can  take  possession,  as  if  the  grantee 
be  at  a  distance ;  or,  the  deed  is  to  trustees  for  the  purpose  of  selling,  and 
paying  debts,  and  the  property  remains  for  safe-keeping,  in  possession  of  the 
debtor,  (as  is  usual  in  such  cases,)  until  a  sale  can  be  conveniently  made; 
or,  if  the  property  be  in  such  a  situation  as  that  it  cannot  be  delivered,  (as 
at  sea,)  so  that  it  be  delivered  as  soon  as  practicable ;  or,  if  the  grantee  pur- 
chase at  a  sheriff's  sale,  and  leave  the  property  in  the  possession  of  the 
debtor,  and  for  his  use,  this  possession  is  not  inconsistent  with  the  idea  of  a 
bona  fide,  absolute,  and  effectual  conveyance  from  the  sheriff  to  the  pur- 
chaser ;  or,  if  the  possession  be  a  social  possession,  so  that  a  possession  of  the 
grantee  may  be  implied ;  such  cases  do  not  in  fact,  come  within  the  rule 
under  discussion ;  since  no  proofs  are  given  to  contradict  or  vary  the  terms 
or  effect  of  the  deed,  but  only  to  show  that  the  possession  is  not,  in  fact, 
inconsistent  with  the  terms  of  the  deed  itself,"  Coalter,  J.,  said,  "  An 
absolute  bill  of  sale,  by  one  in  debt,  of  his  goods,  of  which  he  afterwards 
retains  the  possession,  is  deemed  fraudulent  as  to  his  creditors,  because  a 
secret  trust  in  his  favour  is  presumed,  even  if  the  grantee  is  also  a  bona  fide 
creditor  to  the  full  value  of  the  goods."  Brooke,  President,  said,  that  the 
vendor's  remaining  in  possession,  is  conclusive  evidence  of  fraud  unless 
explained ;  but  such  explanation  may  be  given,  "  when  it  is  confined  to 
unavoidable  circumstances,  in  exclusion  of  any  agreement  or  assent  of  the 
parties,  inconsistent  with  the  deed."  Cabell,  J.,  in  his  very  able  and  inter- 
esting opinion,  (Appendix,  i.  p.  599,)  opened  the  whole  subject  with  the 
greatest  clearness  and  comprehension,  and  reconciled  all  the  cases  :  he  said, 
that,  "  Inconsistency  of  possession  with  the  deed,  is  the  principle,  the  foun- 
dation of  the  rule,  and  the  test  of  its  application  :"  that,  Inconsistency  of 
possession,  renders  the  deed  fraudulent  in  law,  and  absolutely  void,  without 
regard  to  intention ;  mere  possession  by  the  vendor,  is  prima  facie  evidence 
of  fraud ;  because  possession  is  always  prima  facie  evidence  of  property  in,  or 
of  a  trust  for,  the  person  possessing;  it  may  be  explained,  by  showing  it  to 
be  not  inconsistent  with  the  purpose  of  the  deed,  as  by  being  only  temporary, 
for  the  reasonable  convenience  of  the  grantee;  unless  it  thus  be  shown  to 
be  not  inconsistent  with  the  deed,  it  is  conclusive  evidence  of  fraud;  that, 
As  to  the  doctrine  of  inconsistency  of  possession,  there  is  no  difference  be- 
tween a  conveyance  to  trustees,  and  a  direct  conveyance  to  the  party  bene- 
ficially interested ;  the  rule  of  fraud,  per  se,  as  the  English  cases  show,  is 
never  applied  to  cases  of  possession  by  the  former  owner,  after  a  sale  of  pro- 
perty by  a  sheriff,  under  an  execution  to  a  creditor,  or  one  not  a  creditor; 
nor  to  possession  by  the  former  owner  after  a  sale  made  by  trustees,  under 
an  assignment  for  the  benefit  of  creditors,  or  a  sale  by  a  landlord  on  a  dis- 
tress for  rent ;  indeed  it  applies  only  to  conveyances  by  the  party  himself, 
for  possession  by  the  former  owner,  cannot  be  inconsistent  with  a  convey- 
ance from  some  third  person  in  whom  the  property  has  been  legally  vested, 
and  who  has  full  right  to  sell  and  convey  it  to  any  fair  purchaser ;  that,  in 


TWYNE's     CASE.  59 

sLort,  the  rule  applies  only  to  cases  of  inconsistent  possession,  and  to  tliat  it 
applies,  even  if  there  have  been  no  imagination  of  fraud. — Claytor  v.  An- 
thony, 6  Randolph,  285,  turned  on  other  points;  but  some  of  the  judges 
expressed  their  opinions  on  this  :  Carr,  J.  referred  to  his  former  opinion  in 
Land  v.  Jeffries,  "With  the  single  remark  in  addition,  that  I  agree  fully  to 
the  rule  of  Edwards  v.  Harben,  '  That  the  absolute  transfer  of  personal 
chattels,  without  a  delivery  of  possession,  is,  in  law,  fraud,  per  se ;'  "  but  it 
may  be  explained  ;  "  and  where  this  explanation  is  satisfactory,  to  prove  the 
perfect  fairness  of  the  transaction,  and  that  the  inconsistency  of  title  and 
possession,  formed  no  part  of  the  original  contract,  the  case  is  taken  out  of 
the  rule :"  and  he  held,  that  the  doctrine  applied  only  to  cases  of  convey- 
ance from  the  party  himself;  and  that,  after  a  fair,  open,  public  sale,  by  a 
third  person,  whether  a  sheriff,  bailiff,  or  trustee,  the  purchaser  may  let  the 
property  remain  with  the  former  owner  : — Green,  J.,  examined  the  princi- 
ple at  large;  he  considered  the  doctrine  of  possession,  per  se,  being  a  fraud, 
to  be  "  deeply  founded  in  the  early  principles  of  the  common  law  ;"  that  it 
went  '<•  on  the  ground,  that  a  possession  and  use  of  the  property  professedly 
transferred  to  another,  inconsistent  with  the  professed  object  of  the  transac- 
tion, is  conclusive  proof  of  a  secret  trust  for  the  original  owner,  and,  there- 
fore, fraudulent ;"  this  principle  he  considered  long  and  well  settled  and 
that  the  cases  supposed  to  be  exceptions,  are  not  so,  for  in  all  those  cases, 
''  the  possession  was  not  inconsistent  with  the  professed  purposes  of  the 
transaction ;  as,  if  the  sale  be  conditional,  or  the  situation  of  the  parties  or 
property,  be  such,  as  that  it  cannot  be  conveniently  delivered  to  the  pur- 
chaser, so  it  be  delivered  as  soon  as  it  conveniently  can ;  or,  it  is  avowedly 
pledged,  as  a  security  for  the  payment  of  debts,  by  being  conveyed  to  trus- 
tees for  that  purpose ;  in  all  of  these,  and  such  like  cases,  the  possession  is 
not  inconsistent,  and  the  character  of  fraud  is  not  necessarily  stamped  upon 
it; — this  rule,"  he  adds,  "is  so  fortified  by  the  most  venerable  authority, 
and  so  well  founded  in  justice,  and  sound  policy,  that  I  should  be  very  re- 
luctant to  depart  from  it  lightly,  or  to  fritter  it  away  by  refined  distinctions  ;" 
— CoALTER,  J.,  thought,  that  a  public  sale  by  a  trustee,  was  like  a  sale  on 
execution  or  for  rent,  and  that  the  purchaser  might  let  the  former  owner 
resume  possession.  In  Glasscock,  &c.  v.  Batton,  6  Randolph,  78,  it  was 
decided,  that  retention  of  possession,  after  an  absolute  sale,  is  a  fraud  in  law, 
and  voids  the  sale ;  and  see  dicta  to  the  same  effect,  in  Burchard  et  ux.  v. 
Wright,  &c.,  11  Leigh,  463,  470.  Sydnor  v.  Gee,  4  Id.  535,  and  Lewis  v. 
Adams  and  another,  6  id.  320,  turned  upon  the  possession  being  taken, 
actually  or  constructively,  before  the  execution  came ;  but  as  to  the  ques- 
tion whether  after  a  fair  sale,  an  immediate  re-hiring,  bona  fide,  renders  the 
sale  fraudulent  in  law,  it  appears  from  these  cases,  that,  of  the  five  judges 
composing  the  court  at  the  time  of  the  latter  case,  three  judges  were  of 
opinion  that  it  does,  and  two  that  it  does  not ;  and  Cabell,  J.,  in  the  latter 
case  said,  that  to  hold  such  a  transaction  to  be  not  a  fraud  in  law,  is  directly 
contrary  to  Williamson  v.  Farley,  1  Gilmer,  15,  a  case  which  he  well  re- 
membered was  most  gravely  considered  by  the  court :  and  he  said,  that 
where  possession  remained,  he  had  never  known  any  explanation  received 
as  sufficient,  if  "  the  poasession  remained  for  the  use  of  the  vendor,  however 
fair  the  contract  by  which  he  was  allowed  to  retain  it,  and  even  although  it 
may  have  been  for  a  valuable  consideration."     In  Charlton,  et  al.  v.  Gard- 


60  SMITH'aLEADINOCASES. 

ner,  11  Leigb,  281, -where  there  w<as  a  deed  conveying  slaves,  and  expressly 
reserving  the  possession  for  the  grantor's  life,  which  appears  to  have  been 
construed  as  a  conveyance  to  the  grantor's  use  for  life,  and  afterwards  to 
grantee,  the  Court,  per  Tucker,  P.,  said,  that  retention  of  possession  in 
cases  like  Edwards  v.  Harben,  is  a  fraud  in  law,  but  that  in  this  case  the 
possession  was  consistent  with  the  deed,  and  it  was  like  Cadogan  v.  Kennet. 
But  Tavenner  v.  Robinson,  2  llobinson's  Virginia,  280,  again  decided  that 
an  absolute  sale,  with  an  agreement  in  the  deed  that  the  property  shall 
remain  for  the  present  in  possession  of  the  vendor,  he  agreeing  to  give  it  up 
on  request,  and  possession  actually  remaining  till  execution  is  levied,  is 
fraudulent  and  void  in  law  against  such  execution ;  and  that  the  exception 
in  favour  of  a  fair,  open  and  public  sale  by  a  trustee,  could  not  extend  to 
the  case  of  a  public  sale  under  a  trust  deed,  advertised  by  the  trustee,  but 
in  his  absence  actually  authorized  and  directed  by  the  debtor,  that  being 
virtually  a  sale  by  the  debtor.  In  Kroeson  v.  Seevers,  &c.,  5  Leigh,  434, 
it  was  held,  that  a  sale  is  good,  of  a  slave,  at  the  time  in  possession  of  ano- 
ther by  contract  of  hire,  the  slave  being  demanded  by  the  vendee,  at  the  end 
of  the  hiring,  and  not  taken,  but  the  hirer  consenting  to  deliver  him  to  the 
vendee  when  required.  In  the  recent  case  of  Davis  v.  Turner,  4  Grattan, 
423,  however,  the  Court  of  Appeals  in  Virginia,  has  departed  from  the 
principle  and  rule  considered  to  have  been  established  by  a  long  series  of 
decisions  in  that  state,  and  has  adopted  the  doctrine  of  fraud  in  fact,  but 
under  a  modified  and  limited  form.  In  that  case,  there  had  been  a  bona  fide 
sale  of  slaves,  for  an  adequate  consideration,  and  the  purchase  money  had 
been  paid.  While  the  slaves  were  on  their  way  from  the  vendor's  factory 
to  the  office  of  the  vendee,  who  was  a  slave  dealer,  the  latter,  at  the  urgent 
request  of  the  vendor,  consented  to  hire  the  slaves  to  him  for  a  limited  time 
and  for  a  full  price,  and  they  were  accordingly  sent  back  to  the  vendor's 
factory,  and  there  they  were  levied  upon  at  the  suit  of  a  creditor.  It  was 
decided  by  the  Court  of  Appeals,  that  the  sale  was  not  necessarily  and  in 
point  of  law  fraudulent  and  void.  Baldwin,  J.,  (with  whom  Allen,  J. 
concurred,)  expressed  his  opinion  against  the  doctrine  of  what  is  called 
fraudpe?'  se,  that  is,  that  the  mere  non-delivery  of  possession  on  a  sale,  is  in 
itself,  in  all  cases,  conclusively  fraudulent,  and  also  against  the  principle 
that  the  inconsistency  of  the  possession  with  the  terms  and  effect  of  the 
deed,  is  conclusive  evidence  of  fraud.  He  held  that  the  fraud  contemplated 
by  the  statute,  is  to  be  found  in  the  falsehood  of  the  transaction ;  in  the 
pretence  of  a  sale  when  there  is  none  j  in  the  reservation  of  an  interest  for 
the  grantor,  under  the  cover  of  a  transmission  of  his  right  to  the  grantee ; 
and  that  the  essential  inquiry  in  most  cases  is,  whether  the  consideration  be 
fair  and  adequate,  or  false  and  feigned.  He  considered  that  the  possession 
"  being  retained  by  the  grantor,  gives  rise  to  a  suspicion  of  fraud,  such  as  in 
view  of  the  frequent  acts  and  contrivances  against  the  rights  of  creditors, 
warrants  a  presumption  against  the  fairness  of  the  transaction,  requiring  full 
and  satisfactory  explanation;  a  presumption  which  cannot  be  too  strongly 
stated,  to  the  effect  of  throwing  the  whole  burthen  of  proving  the  genuine- 
ness and  sufficiency  of  the  consideration  upon  the  grantee,  and  in  the  naked 
case  of  an  alleged  absolute  sale,  and  possession  notwithstanding  retained, 
requiring  the  conclusion  of  fraud;"  but  he  could  "not  perceive  any  sound 
principle  upon  which  the  mere  non-delivery  of  possession  can  be  treated  as 


twyne's  case.  61 

conclusive  against  the  fairness  and  good  faith  of  the  contract."  And  upon 
reviewing  the  previous  Virginia  cases,  he  added,  "  that  it  seems  now  con- 
ceded on  all  hands,  the  continued  possession  of  the  vendor  after  an  absolute 
sale,  is  open  to  explanation  in  some  form  or  shape ;  and  that  we  are  not  so 
restrained  from  authority  as  to  prevent  our  allowing  an  explanation  that 
shows  such  possession  and  the  whole  transaction  to  have  been  fair  and  honest, 
and  especially  where  such  possession  has  been  held  under  a  bailment,  for  a 
valuable  consideration,  in  good  faith  made  from  the  vendee  to  the  vendor." 
He  said  that  it  seemed  "  to  be  carrying  a  distrust  of  juries  too  f;xr  to  suppose 
them  incapable,  with  the  aid  of  a  wholesome  prima  facie  presumption,  to  ad- 
minister justice  on  this  subject,  in  the  true  spirit  of  the  statute;  and  that  it 
is  better  to  confine  the  interposition  of  the  court  to  guiding,  instead  of  driv- 
ing them  by  instructions,  and  to  the  power  of  granting  new  trials  in  cases  of 
plain  deviation."  In  the  same  case,  Cabell,  P.  announced  that  an  entire 
change  had  taken  place  in  his  views  upon  this  subject.  He  was  now  entirely 
satisfied  of  the  correctness  of  the  modern  English  decisions,  and  that  there 
is  no  such  rule  known  to  the  common  law,  as  that  which  was  supposed  to  be 
established  by  the  case  of  Edwards  v.  Harben ;  "  that  in  all  cases,  the  ques- 
tion of  fraud  or  no  fraud,  as  to  the  possession  of  the  vendor,  is  a  question  of 
fact,  to  be  left  to  the  consideration  of  the  jury  on  a  view  of  all  the  circum- 
stances of  the  case;  subject,  however,  to  the  accustomed  power  of  the  court 
to  instruct  the  jury,  as  to  the  law  arising  on  such  facts  as  the  jury  may 
believe  to  be  proved ;  and  subject  moreover,  to  the  salutary  power  of  the 
courts  to  grant  a  new  trial  in  case  the  verdict  shall  be  contrary  to  the  evi- 
dence." And  he  considered  that  the  rights  of  creditors  would  be  suflSciently 
secured  by  the  rule.,  that  the  mere  fact  of  retention  of  possession  by  the  ven- 
dor, is  regarded  as  prima  facie  evidence  against  creditors  of  the  vendor,  and 
will  vacate  the  transaction  as  to  them,  unless  the  vendee  shall  prove  it  to 
have  been  fair  and  bona  fide.  Brooke,  J.,  however,  adhered  to  what  he 
had  said  in  Land  v.  Jeffries.  In  the  still  later  case  of  Forkner  v.  Stuart, 
&c.,  6  id.  198,  204,  the  Court  of  Appeals  declared  that  the  proper  instruc- 
tion to  be  given  to  the  jury  was,  that  if  it  appeared  to  them  that  an  abso- 
lute sale  had  been  made,  but  that  the  possession  did  not  accompany  such 
sale,  but  remained  with  the  vendor,  "  then,  that  such  retention  of  posses- 
sion by  the  vendor,  was  prima  facie  evidence  of  fraud  but  not  conclusive, 
and  was  liable  to  be  repelled  by  satisfactory  legal  evidence  of  the  fairness 
and  good  faith  of  the  transaction."  So  much  of  the  character  of  a  practical 
rule  of  this  kind  depends  upon  the  spirit  in  which  it  is  administered,  and 
the  judges  in  Davis  v.  Turner,  particularly  Mr.  Justice  Baldwin,  speak  so 
fully  of  the  guidance  and  control  to  be  exercised  by  the  court  in  relation  to 
the  action  of  the  jury,  that  Virginia  can  by  no  means  be  considered  as  hav- 
ing gone  over  to  the  practice  adopted  in  Massachusetts  and  some  other 
states,  where  the  evidence  of  non-delivery  of  possession  is  left  with  the  jury 
to  go  for  what  it  may  appear  to  them  to  be  worth.  The  doctrine  now  re- 
cognized in  Virginia  appears  to  be  this;  that  the  presumption  of  fraud 
created  by  retaining  possession,  is  not  a  rule  of  policy,  but  a  rule  of  evi- 
dence ;  that  the  sale  is  valid  or  void,  according  as  it  appears  to  be  genuine 
or  collusive  and  fictitious  ;  and  that  the  non-delivery  of  possession  creates  a 
presumption  of  fraud,  which  will  be  conclusive,  unless  rebutted  by  evidence 
satisfactory  to  the  court  and  jury  that  the  transaction  is  in  fact,  fair  and  reg- 


62  smith'sleadinqcases. 

ular.  It  must  be  loft  to  future  decisions  of  those  courts  to  manifest  to  wliat 
extent  the  control  of  the  judges  over  the  jury  -will  be  exercised  in  regard  to 
the  evidence  deemed  satisfactory  for  the  removal  of  the  presumption  of  fraud. 
It  will  be  observed,  that  in  Vance  v.  Phillips,  6  Hill's  N.  Y.  433,  (infra,) 
Mr.  Justice  Bronson  asked  no  more  than  the  right  of  granting  new  trials 
in  cases  of  verdicts  against  the  evidence,  in  order  to  retain  the  whole  con- 
trol of  the  matter  in  the  hands  of  the  court. 

In  New  Hampshire,  the  principle  appears  to  be  nearly  the  same  as  in  the 
Federal  courts,  though  declared  in  a  form  somewhat  different:  in  fact,  instead 
of  the  rule  of  the  Federal  courts  being  established,  the  principle  and  reason 
on  which  that  rule  is  based  are  used  as  guides.  In  Coburn  v.  Pickering,  3 
New  Hampshire,  415, — to  the  opinion  in  which  case,  by  Richardson,  C.  J., 
the  reader  is  specially  referred,  as  containing  a  very  luminous  exposition  of 
this  subject, — it  is' said,  "to  be  settled,  as  firmly  as  any  legal  principle  can 
be  settled,  that  the  fraud  which  renders  void  the  contract,  in  these  cases,  is 
a  secret  trust,  accompanying  the  sale,  and  that  in  cases  of  absolute  sales, 
possession  and  use,  by  the  vendor,  after  the  sale,  is  always  prima  facie,  and, 
if  unexplained,  conclusive  evidence  of  a  secret  trust.  It  is,  therefore,  very 
clear,  that  fraud  is  sometimes  a  question  of  fact,  and  sometimes  a  question 
of  law.  When  the  question  is.  Was  there  a  secret  trust?  it  is  a  question 
of  fact;  but  when  the  fact  of  a  secret  trust  is  admitted,  or  in  any  way  estab- 
lished, the  fraud  is  an  inference  of  law,  which  a  court  is  bound  to  pro- 
nounce." The  amount  of  this  is,  that  the  presumption  of  fraud,  arising 
from  a  reserved  trust,  cannot  be  rebutted ;  but  the  presumption  of  a  reserved 
trust,  arising  from  possession,  may  :  in  other  words,  the  presumption  of 
fraud  arising  from  possession  may  be  explained  and  rebutted  by  showing 
that  the  possession  was  not  retained  for  the  secret  benefit  of  the  vendor,  and 
no  other  explanation  than  one  which  rebuts  a  sesret  trust  can  be  received ; 
and  it  was  therefore  decided  in  this  case,  that  an  agreement  subsequent  to 
the  sale,  that  the  vendor  should  retain  possession  and  pay  rent,  was  no  suffi- 
cient explanation  of  possession,  for  it  did  not  disprove  a  secret  trust :  and 
the  same  point  is  decided  in  Paul  v.  Crooker,  8  id.  288.  See  also  Parker  v. 
Patten,  4  id.  176;  Trask  v.  Bowers,  id.  309.  The  later  cases  are  perhaps 
even  more  stringent ;  for  it  has  been  decided  that  upon  an  absolute  sale,  the 
mere  fact  of  possession  being  retained  by  the  vendor  on  an  agreement  to 
store  the  property  for  the  purchaser  for  a  certain  time,  rendered  the  sale 
fraudulent  against  creditors;  Page  v.  Carpenter,  10  id.  77.  As  to  the 
notoriety  and  length  of  continuance,  that  must  characterize  the  transfer  of 
possession  before  the  property  can  be  allowed  to  go  back,  on  a  contract  of 
hiring,  to  the  vendor,  see  French  v.  Hall,  9  id.  137,  146 ;  Clark  v.  Morse, 
10  id.  236.  In  regard  to  mortgages,  as  delivery  of  possession  is  not  essen- 
tial to  their  validity  and  completeness,  the  retention  of  possession  was  not 
considered  fraudulent,  prior  to  the  act  of  June  22,  1832,  "  To  prevent 
frauds  in  the  transfer  of  personal  property ;"  Haven  v.  Low,  2  id.  13  ; 
Ash  V.  Savage,  5  id.  545.  See,  also.  Barker  v.  Hall  and  Trustee,  13 
id.  298,  302.  But  that  act  provided  that  no  mortgage  of  personal  pro- 
perty thereafter  made,  shall  be  valid  against  any  other  than  the  parties 
thereto,  unless  possession  of  the  mortgaged  property  be  delivered  to  and 
retained  by  the  mortgagee,  or  unless  the  mortgage  be  recorded  in  the  office 
of  the  clerk  of  the  town  where  the  mortgagor  resides  at  the  time  of  making 


twtne'scase.  63 

it;  see  Hoit  v.  Remick,  11  id.  285;  and  under  this  act,  actual  notice,  it 
appears,  will  have  the  same  effect  as  recording  the  mortgage :  Low  v.  Pet- 
tengill,  12  id.  337,  339 ;  as  to  what  notice  is  sufficient,  see  Stowe  v. 
Meserve,  13  id.  46.  Registration  is,  under  this  statute,  a  substitute  for 
delivery  of  possession;  Barker  v.  Hall  and  Trustee,  13  id.  298,  302.  If 
the  mortgagor  reside  out  of  the  state,  and  the  property  be  also  out  of  the 
state,  at  the  time  of  the  execution  of  the  mortgage,  and  the  mortgagor  after- 
wards move  with  the  property  into  the  state,  the  validity  of  the  mortgage 
will  not  be  affected  by  this  statute;  Offutt  v.  Flagg,  10  id.  46,  49;  but  if 
the  property  be  at  the  time  of  the  mortgage  within  the  state,  and  the 
mortgagor  reside  out  of  it,  the  statute  operates  upon  the  transaction,  but 
can  be  satisfied  only  by  the  mortgagee's  taking  possession,  which  must  be 
an  actual  and  continued  possession  such  as  is  required  on  absolute  sales ; 
Smith  V.  Moore,  11  id.  55,  65.  Yet  even  where  the  mortgage  is  duly 
recorded  under  this  statute,  it  would  seem  that  retention  of  possession  for  a 
very  great  length  of  time,  may  be  evidence  to  the  jury,  tending  to  show 
actual  fraud;  North  v.  Crowell,  11  id.  251,  254. 

In  South  Carolina,  in  the  recent  case  of  Smith  v.  Henry,  1  Hill,  16, 
the  rule  is  referred  to  the  same  principle  of  a  secret  and  corrupt  trust,  or 
benefit  reserved  to  the  grantor;  and  a  further  distinction  is  founded  upon 
it,  between  the  case  where  the  conveyance  is  upon  a  new  and  full  considera- 
tion, and  where  it  is  made  to  a  creditor  in  consideration  of  indebtedness ;  in 
the  former,  the  transaction  not  being  necessarily  a  benefit  to  the  grantee, 
there  is  no  sufficient  ground  to  conclude  him  of  fraud,  even  if  the  grantor 
was  actuated  by  corrupt  motives ;  but  as  to  the  latter,  as  the  grantee  is 
directly  benefited  by  gaining  a  preference  over  the  other  creditors,  the  con- 
clusion is  irresistible,  that  he  is  a  party  to  this  corrupt  design  of  the  debtor 
to  gain  an  advantage  to  himself  out  of  the  property  at  the  expense  of  his 
creditors,  and  that  the  retainer  of  possession  is  a  bribe  given  for  the  prefer- 
ence ;  this  is  the  conclusion  of  law,  the  fact  being  generally  incapable  of 
proof.  In  Anderson  et  al.  v.  Fuller  et  al,  1  M'Mullan's  Equity,  27,  the 
same  principle  is  adopted,  and  applied  to  lands;  and  in  that  case,  the  Chan- 
cellor says :  "  It  is  now  well  settled  that  a  debtor  has  the  right  to  give  a 
preference  among  his  creditors;  but  if,  in  the  deed  of  assignment,  he  secures 
any  advantage  or  benefit  to  himself,  this  provision  invalidates  the  deed. 
Now,  the  circumstance  of  leaving  the  debtor  in  possession  of  the  property, 
supplies  the  place  of  a  provision  to  that  effect  in  the  assignment  or  convey- 
ance. The  law  presumes  an  understanding  between  the  parties ;  infers  the 
existence  of  a  secret  trust;  and,  so  far  as  the  rights  of  creditors  are  affected, 
the  deed  is  void :"  See  Cox  et  al.  v.  M'Bee  &  Henning,  1  Speers,  195.  This 
distinction  is  accordingly  established  in  South  Carolina;  that  where  a  pre- 
existing debt  is  the  consideration  of  a  conveyance,  or  a  part  of  the  conside- 
ration, retention  of  possession  and  use,  without  a  new  agreement  to  that 
effect,  on  adequate  consideration,  is  a  fraud  in  law;  but  if  there  be  a  new 
contract  of  hiring,  on  sufficient  consideration,  it  will  rebut  the  presumption 
of  fraud;  Jones  &  Briggs  v.  Blake  and  wife,  2  Hill's  Chancery,  629,  637; 
Maples  V.  Maples,  Rice's  Equity,  301 ;  but  retention  of  possession  after  an 
absolute  sale  for  a  price  paid,  is  not  conclusively  fraudulent,  but  only  prima 
facie  evidence  of  fraud,  and  capable  of  explanation ;  Terry  v.  Belcher, 
Howard  v.  Williams,  Reeves  v.  Harris,  1  Bailey,  568,  575.  563  :  In  Ful- 


64  smith's     LEADING     CASES. 

more  &  IMowzou  v.  Burrows,  2  Ricliardson's  Equity,  95,  96 ;  where  au 
alleged  coutract  of  rehiring  was  not  allowed  to  rebut  the  presumption  of 
fraud,  arising  from  retaining  possession,  where  a  pre-existing  debt  was  part 
of  the  consideration  of  a  sale ;  it  is  clear  that  the  court  went  upon  the 
ground  that  the  rehiring  was  collusive  and  fictitious.  With  regard  to  the 
other  case,  the  practice  as  now  settled  appears  to  be,  that  upon  mere  reten- 
tion of  possession  on  an  absolute  bill  of  sale,  there  being  no  explanation 
given,  the  court  will  instruct  the  jury  that  the  retention  constitutes  fraud; 
but  an  explanation  may  be  oflFered  sufficient  in  law  to  rebut  the  presumption, 
and  then  the  whole  case  will  be  referred  to  the  jury;  the  burden  of  proving 
fairness  being  on  the  party  who  seeks  to  sustain  the  sale ;  a  re-hiring  for 
wages,  would  be  a  sufficient  explanation.  Terry  v.  Belcher,  1  Id.  568 ; 
Smith  V.  Henry,  2  Id.  118.  In  the  late  case  of  Ryan  v.  Clanton,  3  Strob- 
hart,  413,  422,  the  court  said,  that  the  false  appearance  arising  from  per- 
mitting possession  to  be  retained  after  a  transfer  of  the  property,  in  general 
raises  a  presumption  of  fraud,  which  may  in  most  cases  be  rebutted  by  proof 
that  the  retention  was  consistent  with  the  terms  of  the  contract ;  and  in  a 
court  of  law,  wherever  the  badges  of  fraud  are  not  conclusive  and  irrebut- 
table, they,  with  all  matters  of  explanation,  go  to  the  jury  for  decision. 
There  is  a  class  of  cases,  generally  sales  or  gifts  of  slaves,  in  which  pos- 
session is  considered  as  transferred,  though  not  visibly  changed.  This 
includes  not  merely  the  common  case  of  a  conveyance  to  a  trustee  for  wife 
and  children,  where  it  is  held  that  "  the  possession  of  the  husband  is  the 
possession  of  the  wife  and  children,  and  possession  and  use  for  their  benefit 
is  consistent  with  the  object  and  provisions  of  the  deed;"  but  also  gifts  or 
sales  by  a  father  or  grandfather  to  his  minor  child  living  with  him  at  the 
time  of  the  sale  or  gift;  in  such  case,  the  possession  of  the  grantor  is  the 
possession  of  the  minor  under  his  guardianship;  Kid  v.  Mitchell,  1  Nott  & 
M<Cord,  335 ;  Howard  v.  Williams,  1  Bailey,  575 ;  no  laches  is  imputable 
to  the  grantee,  because  of  his  tender  age ;  Steele  v.  M'Knight,  1  Bay,  64 ; 
and  as  the  parties  necessarily  live  together,  to  hold  that  the  father's  posses- 
sion was  not  the  possession  of  the  child,  would  render  such  gifts  impossi- 
ble; Curry's  Ex' or  v.  EUerbe,  Constl.  Court,  cited  1  Bailey,  578;  but  this 
principle  does  not  extend  to  gifts  or  sales  to  a  grown-up  sister-in-law,  living 
in  the  house  of  the  donor,  for  her  living  there  is  not  necessary,  and  she  is 
capable  of  taking  possession;  Smith  v.  Henry,  2  Bailey,  118;  nor  to  gifts 
to  daughters  of  a  sister  living  with  the  donor;  but  in  such  cases  retention  of 
possession  would  be  evidence  of  fraud,  till  clearly  and  fully  explained ;  Cor- 
dery  v.  Zealy,  Id.  206.  See  Hudnal  v.  Wilder,  Ex' or  of  Teasdall,  4 
M'Cord,  295,  where  it  is  said,  that  to  repel  the  general  presumption  of 
fraud,  the  property  should  be  kept  for  the  separate  use  of  the  donee,  and 
the  profits  and  labour  (of  a  slave)  kept  as  an  accumulating  fund  for  the 
donee's  benefit;  and  that  if  it  is  kept  by  the  donor  as  his  own,  and  for  his 
own  benefit,  such  possession  is  as  inconsistent  with  the  professed  object  of 
the  deed,  as  if  made  to  any  other  person,  and  ought  to  raise  the  same  sus- 
picion. This  distinction  is  not  attended  to  in  the  later  cases,  but  is  not 
inconsistent  with  them;  it  seems  indeed,  to  be  supported  in  Smith  v.  Henry, 
2  Hill,  21.  Delivery  of  possession  on  a  conditional  sale, — which  is  regarded 
as  a  species  of  bailment,  transferring  a  qualified  property,  the  absolute  pro- 
perty remaining  in  the  vendor, — does  not  devest  the  vendor's  title  as  in 


TWYNE'S     CASE.  65 

favour  of  vendee's  creditors ;  wlicther  the  condition  be  written,  Dupree  v. 
Harrington,  (Harper's)  State  Reports,  391,  or  only  verbal,  lleeves  v.  Harris, 
Bailey  v.  Jennings,  1  Bailey,  563.  But  see  Bennett  v.  Sims,  Rice,  421, 
where  a  disposition  is  shown  to  consider  such  sales  absolute  as  to  sitLsequent 
creditors.  Retention  of  possession  on  a  mortgage  before  condition  broken, 
if  contemplated  by  the  mortgage,  is  no  evidence  of  fraud ;  and  after  is  not 
conclusive  :  Gist  v.  Pressley  and  others,  2  Hill's  Chancery,  318,  328 ;  Ma- 
ples v.  Maples,  Rice's  Equity,  301;  Bank  et  al.  v.  Gourdin  et  al.,  1  Speers' 
Equity,  441,  459 ;  Fishburne  v.  Kunhardt,  2  Speers,  556,  564 ;  Dupree  v. 
Harrington,  and  Reeves  v.  Harris,  diet.  ace.  "All  these  cases,  however/' 
it  is  said  in  a  late  case,  "whilst  they  oppugn  the  notion  of  possession  by 
the  mortgagor,  after  breach,  being  conclusive  evidence  of  fraud,  acknowledge 
that  it  is  a  matter  requiring  explanation,  which  will  be  entitled  to  weight, 
according  to  circumstances,  in  an  examination  of  the  question  of  fraud;" 
Ryan  v.  Clanton,  3  Strobhart,  413,  423.  This  case  also  recognises  the  dis- 
tinction between  slaves  and  other  chattels,  in  respect  to  retention  by  a  mort- 
gagor. 

In  Delaware,  by  a  statute  passed  14  Geo.  2,  "to  prevent  frauds  by 
clandestine  bills  of  sale,"  it  is  provided  that  bills  of  sale  of  chattels  shall 
not  pass  the  property,  except  as  against  the  vendor,  unless  the  chattels  shall 
be  actually  delivered  into  the  possession  of  the  vendee,  as  soon  as  conveni- 
ently may  be,  after  the  making  of  the  bill  of  sale-;  and  that  if  the  property 
afterwards  returns  or  comes  into,  and  continues  in  the  possession  of  the 
vendor,  it  shall  be  liable  to  the  demands  of  all  creditors  of  the  vendor;  Laws 
of  Delaware,  p.  75.  Under  this  act,  sales  without  delivery  of  possession, 
are  void  as  against  creditors;  Bowman  v.  Herring,  4  Harrington,  458. 
But  this  does  not  apply  to  public  sales  by  an  officer  of  the  law;  Perry  v. 
Foster,  3  Harrington,  293. 

In  New  Jersey,  in  Chunar  v.  Wood,  1  Halsted,  155,  it  was  decided, 
without  hesitation,  that  "a  conveyance  of  chattels  unaccompanied  by  pos- 
session, is  absolutely  void"  against  subsequent  purchasers ;  but  in  Sherron 
V.  Humphreys,  2  Green,  217,  220,  it  seems  to  be  doubted  whether  a  sale, 
unaccompanied  by  possession,  is  in  itself  void  against  creditors. 

In  Maryland,  by  statute  of  1729,  recording  of  a  deed  of  sale,  or  mort- 
gage, is  equivalent  to  a  transfer  of  possession;  and  the  want  of  both  ren- 
ders the  sale,  gift,  or  mortgage,  nought,  except  as  between  the  parties ;  and 
actual  notice  is  equivalent  to  recording.  1  Maxey's  Laws  of  Maryland, 
192 ;  Bruce's  Admins,  v.  Smith,  3  Harris  &  Johnson,  499 ;  Hambleton's 
Ex'ors  V.  Hay  ward,  4  id.  443;  Hudson  v.  Warner  and  Vance,  2  Harris  & 
Gill,  416,  432.  As  between  the  parties,  the  sale  without  delivery  is  good; 
Gough  V.  Edelen,  6  Gill,  101. 

(2).  The  second  class,  in  which  no  difference  is  recognized  between  abso- 
lute sales  and  mortgages,  includes  New  York,  (before  the  late  statute,) 
Pennsylvania,  Connecticut  and  Vermont. 

In  New  York,  at  an  early  period,  in  Vredenberg  v.  White  &  Stout,  1 
Johnson's  Cases,  137,  the  court  seems  to  have  proceeded  directly  upon  the 
rule  adopted  in  the  Federal  courts;  but  in  Sturtevant  &  Keep  v.  Ballard, 
9  Johnson,  337,  (1812)  the  dead  reckoning  was  corrected  by  a  new  observa- 
tion of  the  English  cases,  by  Chief  Justice  Kent,  and  the  rule  defined  in  a 
new  and  stricter  form.  A  voluntary  sale  of  chattels,  absolute  or  contingent. 
Vol.  I.— 5 


66  smith's     LEADING     CASES. 

with  an  agreement  in  or  out  of  the  deed,  that  the  vendor  may  keep  posses- 
sion, or,  if  possession  be  kept  without  any  agreement,  Jennings  v.  Carter 
&  AVilcox,  2  Wendell,  446,  "  except  in  special  cases,  and  for  special  rea- 
sons, to  be  shown  to,  and  approved  of  by,  the  Court,"  is  fraudulent  and  void 
as  against  creditors.  This  rule,  being  founded  on  public  policy,  and  the 
preventing  the  debtor  from  acquiring  a  false  credit  with  the  public,  steers 
quite  clear  of  any  consideration  of  intention,  that  not  being  the  seat  of  this 
species  of  fraud ;  when  the  facts  are  settled,  it  is  a  principle  of  legal  policy 
to  be  applied  by  the  courts,  and  not  a  question  of  motive  or  design  to  be 
dealt  with  by  the  jury;  Jennings  v.  Carter  &  Wilcox;  Divver  &  Gunton  v. 
McLaughlin,  id.  596;  and  the  "special  reasons"  upon  which  the  court 
have,  in  certain  cases,  excused  retention,  will  be  found  to  be  not  reasons 
tending  to  prove  that  the  intent  of  the  parties  was  fair,  but  reasons  founded 
either  on  necessity,  which  is  a  policy  stronger  than  the  policy  of  the  rule, 
or  on  such  notoriety,  as  satisfied  the  reason  of  the  rule.  The  principle  of 
necessity  has  operated  to  the  extent  of  modifying  the  application  of  the  rule, 
so  as  to  require  the  delivery  to  be,  not  immediate  and  absolute,  but  only  as 
soon  and  as  far  as  practicable;  as,  in  Beals  v.  Guernsey,  8  Johnson,  446, 
where,  on  the  sale  of  articles  then  in  the  storehouse  of  a  third  person,  deli- 
very was  attempted,  but  could  not  be  had,  on  account  of  the  sickness  of  the 
bailee ;  and  in  Butts  v.  Swartwood,  2  Cowen,  431,  where  on  the  sale  of  an 
unfinished  article,  it  was  taken  from  the  shop  of  the  vendor,  and  left  at  his 
house  until  it  could  be  trimmed,  and  the  vendee  could  come  for  it  in  his 
sleigh ;  but  in  Jennings  v.  Carter  and  Wilcox,  where  the  purchase  was  of 
cattle,  the  fact  that  the  vendee  had  no  farm  or  forage  was  held  no  sufficient 
excuse.  In  Bissel  v.  Hopkins,  3  Cowen,  166,  the  court,  upon  special  ver- 
dict, held,  that  where  the  transaction  was  so  public  and  notorious  that 
nobody  was  deceived,  and  the  retaining  of  possession  was  necessary  to 
enable  the  vendor  to  settle  his  business  as  a  public  officer,  the  case  might 
be  an  exception;  but  in  Divver  &  Gunton  v.  M'Laughlin,  this  case  was 
considered  as  going  extremely  far;  and  the  circumstances  are  obviously  so 
peculiar,  that  it  could  not  be  a  precedent  for  any  other  case.  Marriage- 
settlements  were  considered,  in  Sturtevant  &  Keep  v.  Ballard,  as  not  being 
within  the  rule;  in  truth,  the  law  regards  the  possession  as  being  transferred 
according  to  the  settlement,  as  was  held  in  Ludlow  v.  Hurd  &  Sewell,  19 
Johnson,  218.  Leaving  possession  after  a  sherifi"'s  sale  seems  not  entirely 
to  be  excepted;  for  though  apparently  it  is  not  in  itself  conclusive  of  fraud, 
it  at  least  raises  a  strong  presumption  of  fraud.  M'Instry  v.  Tanner,  9 
Johnson,  135;  Farrington  &  Smith  v.  Caswell,  15  id.  480;  Dickenson  v. 
Cook,  17  id.  332 ;  Gardenier  v.  Tubbs  and  others,  21  Wendell,  169.— Thus 
the  matter  stood  before  the  Revised  Statutes,  which  enacted  that  after  Janu- 
ary 1,  1830,  every  sale,  mortgage,  and  conditional  sale,  without  immediate, 
and  actual,  and  continued  change  of  possession,  (see  Camp  v.  Camp,  2  Hill's 
N.  Y.,  628,)  shall  be  "presumed  to  be  fraudulent  and  void,"  &c.;  "and 
shall  be  conclusive  evidence  of  fraud,  unless  it  shall  be  made  to  appear  on 
the  part  of  the  persons  claiming  under  such  sale  or  assignment,  that  the 
same  was  made  in  good  faith,  and  without  any  intent  to  defraud  such  credit- 
ors or  purchasers;"  2  Rev.  Stat.,  136,  ch.  7,  t.  2,  s.  5.  There  is  a  pretty 
obvious  inconsistency  between  the  latter  branch  of  this  statute  and  the 
former;  indeed  it  now  appears  that  the  section,  as  introduced  by  the  revisers. 


T  \V  Y  N  E  '  S     C  A  S  E.  67 

was  without  the  latter  clause,  and  that  it  was  added  bj  the  legislature ;  20 
Wendell,  548 ;  and  this  repugnancy,  and  the  obscurity  of  the  whole  statute, 
have  led  to  an  extraordinary  and  most  interesting  conflict  between  the  judi- 
ciary, and  the  more  popular  constitution  of  the  Court  of  Errors.  The  view 
taken  of  the  statute  by  the  majority  of  the  Supreme  Court,  appears  to  have 
been,  that,  as  the  presumption  of  fraud  was  made  a  legal  presumption,  the 
court  must  judge  what  reasons  and  motives  would  be  satisfactory  for  the 
rebuttal  of  it.  Mr.  Justice  Bronson's  view  appears  to  have  been  a  little 
diflferent ;  believing  that  these  two  clauses  of  the  statute,  if  they  were  in 
pari  materia,  could  not  stand  together;  and  knowing  that  there  is  one  prin- 
ciple in  the  law  which  deduces  legal  fraud,  consisting  in  a  secret  trust,  from 
retention  of  possession,  and  another  by  which  an  actual  fraudulent  intent  is 
made  to  avoid  all  sales ;  he  considered,  that  if  the  latter  clause  called  for 
the  intervention  of  the  jury,  then  the  two  clauses  must  be  treated  as  refer- 
ring to  these  two  principles  respectively;  and  that  the  second  of  them  must 
be  looked  upon  as  providing  how  far  the  non-delivery  of  possession  shall  be 
evidence  of  actual  fraud,  when  actual  fraud  is  the  point  to  be  proved.  Both 
of  these  views  led  to  the  same  practical  result;  and  the  rule  was  brought 
back  to  the  form  in  which  it  had  been  laid  down  by  Chief  J.  Kent  :  Ran- 
dall v.  Cook,  17  Wendell,  54;  Wood  and  others  v.  Lowry  &  Douglas,  id. 
492.  As  before,  the  law,  only,  was  to  judge  of  the  cases  which  did  not 
come  within  the  conclusion  of  law;  and  if  the  jury  negatived  a  fraudulent 
intention,  when  the  legal  objection  remained  unsatisfied,  a  new  trial  was  to 
be  granted;  Stevens  &  Munn  v.  Fisher  &  Whitmore,  19  id.  181.  It  was 
further  held  an  insufficient  excuse  in  law,  that  the  retention  was  for  the  mort- 
gagor's accommodation;  Glardner  v.  Adams,  12  id.  297;  or  that  it  was  for 
carrying  on  his  vocation,  Doane  v.  Eddy,  16  id.  523 ;  or  was  to  enable  the 
mortgagor  better  to  pay  the  mortgagee  his  debt ;  Beckman  v.  Bond,  19  id. 
444;  the  excuse  should  be  in  the  nature  of  an  impracticability,  as,  in  case 
of  ponderous  articles  or  growing  crops;  Randall  v.  Cook.  The  principle  of 
the  Supreme  Court  was  held  by  the  Chancellor  in  Butler  v.  Stoddart  and 
others,  7  Paige,  163;  and  the  case  being  brought  before  the  Court  of  Errors, 
that  body  was  equally  divided,  upon  the  question  whether  the  inference  was 
one  of  law  for  the  court,  or  of  intention  for  the  jury;  Stoddart,  &c.  v.  But- 
ler, &c.,  20  Wendell,  507.  The  subject  was  again  brought  into  the  Court  of 
Errors  in  Smith  &  Hoe  v.  Acker,  23  id.  653 ;  and  it  was  then  decided  by  a 
large  majority,  that  the  question  of  fraud  was  in  all  cases  one  of  fact  for  the 
jury,  and  that  the  clause  making  it  matter  of  intention,  applied  to  all  cases. 
In  Butler  &  Barker  v.  Van  Wyck,  1  Hill's  N.  Y.  438,  this  was  reluctantly 
submitted  to  by  a  majority  of  the  Supreme  Court,  and  the  effect  was  justly 
considered  to  be,  the  abolition  of  the  principle  in  Twyne's  case,  and  the 
leaving  of  all  cases  to  the  proof  of  such  •<  actual  mental  fraud"  as  would 
vitiate  any  transaction  whatever;  but  one  of  the  judges  openly  rebelled. 
In  Prentiss  v.  Slack  and  another,  id.  467,  the  court  resigned  the  whole  mat- 
ter into  the  hands  of  the  jury.  In  Cole  &  Thurman  v.  White,  26  Wen- 
dell, 511,  the  Court  of  Errors  confirmed  their  decision,  that  all  legal  evi- 
dence tending  to  satisfy  the  jury  that  there  was  no  intent  to  defraud  credi- 
tors or  purchasers,  must  be  received  and  submitted  to  the  jury.  In  the 
recent  case  of  Hanford  v.  Artcher,  the  judge  below  had  told  the  jury,  that 
the  vendee,  not  having  taken  possession,  must  show  some  good  reason  sat- 


G8  smith's    LEADING     CASES. 

isfactory  to  tbe  jury,  why  the  possession  was  not  changed;  and  a  majority 
of  the  Court  of  Errors,  4  Hill's  N.  Y.  273,  reversed  the  judgment  for  this 
error,  and  decided  that  the  only  question  for  the  jury  was  that  of  fair  or 
fraudulent  intention ;  but  Chancellor  Walworth  dissented,  and  six  others, 
including  Senators  Paige  and  Varian,  voted  with  him.  See  Baskins  v.  Shan- 
non, 3  Comstock,  310.  But  when  the  Supreme  Court  thus  seemed  finally 
defeated,  it  suddenly  gained  a  complete  victory,  by  suggesting  that  these 
decisions  of  the  Court  of  Errors  did  not  afi"ect  the  right  of  the  courts  to 
grant  new  trials,  and  therefore  that  although  it  was  necessary  in  all  cases 
that  the  evidence  should  be  submitted  to  the  jury,  who  alone  are  to  decide 
upon  the  question  of  fraud,  yet  that  it  is  the  right  and  duty  of  the  court  to 
grant  a  new  trial  whenever  the  jury  fall  into  an  error  on  the  subject  of 
fraud,  and  come  to  a  conclusion  against  the  weight  of  evidence ;  fraud,  said 
Bronson,  C.  J.,  must  always  be  left  as  a  question  of  fact  to  the  jury,  but 
"if  the  jury  come  to  a  wrong  conclusion,  we  must,  as  we  do  in  other  cases, 
grant  a  new  trial;"  Vance  v.  Phillips,  6  Hill's  N.  Y.  433.  In  Butler  v. 
Miller,  1  Comstock,  497,  499,  Johnson,  J.,  said,  that  the  question  of  bona 
fides,  in  case  of  a  mortgage  which  was  not  accompanied  by  possession,  was 
properly  submitted  to  the  jury,  and  that  their  verdict  in  favour  of  the 
honesty  and  fairness  of  the  transaction  was  conclusive.  In  1833,  a  law  was 
passed  requiring  mortgages  to  be  filed,  where  immediate  possession  was  not 
delivered,  or  else  to  be  absolutely  void  against  creditors  and  purchasers ;  2 
K.  S.  136;  Seymour  V.  Lewis,  19  Wendell,  515;  this  act  does  not  cause 
the  filing  of  the  instrument  to  give  the  mortgage  validity  where  possession 
is  retained;  it  superadds  another  and  an  absolute  cause  of  invalidity.  Wood 
and  others  v.  Lowry  &  Douglas,  17  Wendell,  492;  Smith  &  Hoe  v.  Acker, 
23  id.  653,  658. 

In  Pennsylvania,  the  rule  is  carried  to  a  greater  extent  than  in  any 
other  state;  and  the  broad  principle  appears  to  be  established,  that  to  trans- 
fer a  title  or  to  create  a  lien,  by  the  act  of  the  owner,  that  shall  be  valid 
against  creditors  or  bona  fide  purchasers,  delivery  of  possession  is  indispen- 
sable. The  leading  case  is  Clow  and  another  v.  Woods,  5  Sergeant  & 
Rawle,  275.  Previously  to  that  decision,  the  principle  was  not  carried  so 
far.  In  Wilt  v.  Franklin,  1  Binney,  502,  521,  and  in  Dawes  v.  Cope,  4  id. 
258,  265,  TiLGHMAN,  C.  J.,  had  adopted  the  rule  of  Edwards  v.  Harben, 
and  Hamilton  v.  Russel,  and  said  that  though  an  absolute  immediate  assign- 
ment must  be  accompanied  by  a  delivery  of  possession,  yet  that  if  the  con- 
veyance was  conditional,  or  to  take  efi"ect  at  a  future  time,  the  retaining  of 
possession  according  to  the  intent  of  the  deed,  would  not  be  fraudulent. 
The  latter  of  these  cases  was  in  1811 ;  the  next  year,  Sturtevant  and  Keep 
V.  Ballard  was  decided,  in  which  the  application  of  the  principle  was 
enlarged  upon  considerations  of  public  policy,  and  extended  to  mortgages ; 
and  that  case  has  led  the  later  Pennsylvania  decisions.  In  Clow  and 
another  v.  Woods,  (1819),  the  case  of  a  mortgage,  the  whole  subject  was 
examined,  and  it  was  decided  that  there  is  no  difference,  in  respect  to  this 
rule,  between  absolute  sales,  and  contingent  sales  or  mortgages,  and  that,  as 
to  both,  retention  of  possession  beyond  what  is  necessary  or  unavoidable,  is 
a  fraud  in  law:  and  Gibson,  J.,  said  that  public  policy  should  induce  a  con- 
struction of  the  statute  so  comprehensive  as  to  take  in  all  cases,  except  those 
in  which,  from  the  very  nature  of  the  transaction,  possession  either  could  not 


TWYNE'SCASE.  W 

be  delivered  at  all,  or  not  without  defeating  wholly  or  in  a  great  degree,  the 
purpose  of  the  conveyance,  and  that  purpose  is  such  as  the  law  approves  of 
and  protects ;  such  would  be  the  case  of  a  marriage-settlement.     This  rule 
has  never  since  been  deviated  from.     In  Streeper  v.  Eckart  and  another,  2 
Wharton,  302,  Kenned?,  J.,  citing  the  decisions,  says,  "If  there  be  any 
principle  established  by  these  cases,  it  is,  that  a  transfer  of  personal  pro- 
as against  creditors :"  and  the  same  thing  is  repeated  in  Stark  v.  Ward,  3 
perty,  unaccompanied  by  a  corresponding  transmutation  of  possession,  is  void 
Barr,  328.    See  dictum  in  Dorneck  and  others  v.  Reichenback,  10  Sergeant 
and  llawle,  84,  90,  that  it  is  a  matter  for  the  court  to  pronounce  on,  not 
the  jury,  approved  in  Carpenter  v.  Mayer,  5  Watts,  483,  and  Young  v. 
M'Clure,  2  Watts  &  Sergeant,  147 ;  and  Forsyth  v.  Matthews,  2  Harris, 
100,  103;  Cadbury  v.  Nolen,  5  Barr,  320;  see  remarks  of  GtIBSON,  C  J., 
on  legal  fraud  in  Avery  v.  Street,  6  Watts,  247.     That  mortgages  are 
within  the  rule  is  again  expressly  decided  in  Welsh  v.  Bekey,  Ex' or  of 
Hayden,  1  Penrose  &  Watts,  57;  and  it  is  now  established  in  Pennsyl- 
vania, as  a  general  principle  of  law,  that  by  no  devise  whatever,  whether  of 
sale  and  agreement  of  resale,  or  by  the  title  at  the  time  of  the  purchase 
being  vested  in  one  who  is  a  surety  for  the  purchaser  who  takes  possession, 
can  a  lien  be  created  on  personal  property  separate  from  the  possession  of 
it.     Jenkins  v.  Eichelberger,  4  Watts,  121 ;  Trovillo  v.  Shingles,  10  id. 
438;  see  M'Cullough  v.  Porter,  4  Watts  &  Sergeant,  177.     The  delivery 
must  be  actual  and  not  merely  symbolical,  where  actual  delivery  is  practi- 
cable, and  if  it  be  not  practicable,  the  parties  should  leave  nothing  undone 
to  secure  the  public  from  deception ;  see  Cadbury  v.  Nolen,  5  Barr,  320  : 
in  such  a  case,  delivery  of  the  muniments  of  title,  or  of  the  key  of  a  store- 
room, would  be  sufficient;  Cunningham  v.  Neville,  10  Sergeant  &  llawle, 
201 :  In  Babb-v.  Clemson,  id.  419,  428,  it  is  said  there  must  be  a  bona  fide, 
substantial  change  of  possession,  and  that  concurrent  possession  is  fraudu- 
lent :  In  Hoffner  v.  Clark,  5  Wharton,  545,  550,  it  is  said  there  must  be 
an  actual  transfer  of  the  possession,  so  far  as  the  nature  and  condition  of 
the  property  will  admit  of  it,  and  the  circumstance  of  the  buyer  and  seller, 
brothers,  living  in  the  same  house,  '  furnished  no  ground  for  dispensing 
with  such  actual  change  of  the  possession  as  will  render  it  distinct  and 
visible,  so  that  it  may  become  notorious :'  see,  however,  McVicker  v.  May, 
3  Barr,  224  :  In  Hoofsmith  and  others  v.  Cope,  6  id.  53,  the  court  below 
ruled,  that  there  must  be  an  accompanying,  actual,  visible,  and  notorious 
possession,  and  this  was  approved  of  above  :  see  Ilerron  v.  Fry,  2  Penrose 
&  Watts,  2G3,  the  case  of  a  growing  crop. — As  to  the  time  when  the  posses- 
sion must  be  delivered,  it  is  decided  in  Carpenter  v.  Mayer,  5  Watts,  483, 
that  it  is  not  enough  that  the  possession  has  past  before  the  execution  is 
levied;  it  must  "accompany  the  transferor  follow  it  within  a  reasonable 
time  thereafter,  that  is,  as  soon  as  the  nature  of  the  property  and  the  cir- 
cumstances attending  it  will  admit;"  but  the  same  court  in  Hoofsmith  and 
others  v.  Cope  appears  to  have  been  decided  differently,  and  the  decisions  in 
Virginia,  Vermont  and  Massachusetts,  arc  different,  and  the  rule  in  respect 
to  the  analogous  case  of  executions  is  laid  down  differently  in  Berry  v.  Smith, 
3  Washington  C.  C.  60,  and  Eberle  v.  Mayer,  1  llawle,  366,  approved  in 
Hentz  and  another  v.  Hanman,  5  Wharton,  150;  and  it  seems  clearly  that 
these  latter  cases  are  right;  that  is,  that  the  legal  fraud  has  ceased,  though 


70  smith's    leading  cases. 

if  the  transaction  were  found  by  the  jury  to  be  collusive  it  would  be  void; 
the  use  or  trust  in  which  the  legal  fraud  consisted  is  at  an  end  when  the 
possession  is  delivered.  It  Wilt  v.  Franklin,  in  case  of  an  assignment  to 
a  trustee,  absent  at  the  time,  it  was  held  that  a  delay  from  Saturday  night 
till  Monday  morning  was  not  fraudulent,  and  that  the  execution  coming  on 
Monday  and  rendering  a  delivery  impossible,  excused  it  afterwards. — The 
vendee's  possession  must  continue,  for  if  the  property  goes  back  after  a  brief 
interval,  the  transaction  is  colourable  and  fraudulent ;  Streeper  v.  Eckart 
and  another;  Young  v.  M'Clurc;  Cunningham  v.  Neville;  M'Bride  v. 
M'Clellend,  6  Watts  &  Sergeant,  94  ;  dictum  in  Cameron  and  another  v. 
Montgomery,  13  Sergeant  &  llawle,  128,  131 :  but  see  Jordan  v.  Bracken- 
ridge,  3  Barr,  442. — In  case  of  retention  of  possession,  the  transfer  is  frau- 
dulent and  void  against  subsequent  bona  fide  purchasers  as  well  as  creditors; 
Shaw  and  another  v.  Levy,  17  id.  99  ;  Stark  v.  Ward,  3  Barr,  328;  Dawes 
V.  Cope. — The  exceptions  to  the  application  of  this  legal  presumption  of 
fraud  are  well  settled.  Upon  an  assignment,  sale,  or  mortgage  of  goods  or 
a  ship  at  sea,  delivery  of  the  muniments  of  title  is  sufiicient,  if  possession 
be  taken  within  a  reasonable  time  after  the  arrival  of  the  property ;  Mor- 
gan's Ex'rs  V.  Biddle,  1  Yeates,  3.  And  a  sale  of  articles  at  the  time  in 
possession  of  a  bailee,  if  there  be  no  accompanying  delivery,  will  be  good  if 
the  vendor  does  not  retake  possession,  especially  if  the  vendor  before  exe- 
cution has  possession  and  control;  Linton  v.  Butz,  1  Barr,  89.  After  a 
sale  by  a  sheriif  or  constable  upon  execution  or  distress,  the  property  may 
be  left  in  possession  of  the  former  owner;  because  the  sale  being  the  act  of 
the  law  is  presumed  not  to  be  fraudulent,  and  because  of  the  notoriety  of 
the  transfer ;  Water's  Ex'ors  v.  McClellan  et  al.,  4  Dallas,  208 ;  Myers  v. 
Harvey,  2  Penrose  &  Watts,  481 ;  Walter  v.  Gernant,  1  Harris,  515;  Ileitz- 
man  v.  Divil,  1  Jones,  264,  267;  approved  in  Streeper  v.  Eckart  and  another, 
upon  the  same  reason ;  in  Bellas  v.  M'Carty,  10  Watts,  13,  44,  the  reason 
given  is  that  every  body  is  bound  to  take  notice  of  judicial  sales  and  trans- 
fers. In  Wager  v.  Miller,  4  Sergeant  &  llawle,  117,  it  was  decided  that 
possession  by  an  insolvent  with  consent  of  his  assignees  is  good  against  a 
then  existing  creditor  who  had  made  himself  an  immediate  party  to  the  insol- 
vent proceedings,  because  it  is  by  consent  of  one  who  is  the  creditor's  trustee 
under  a  proceeding  which  he  had  taken  part  in,  but  it  was  said  that  it 
would  have  rendered  the  assignment  void  against  subsequent  creditors : 
however,  it  is  pretty  clear  upon  the  later  decisions  that  insolvents'  assign- 
ments are  not  within  the  legal  presumption  of  fraud,  at  all;  they  are 
the  act  of  the  law  and  not  of  the  party,  and  all  the  world  is  bound  to  take 
notice  of  them ;  Wickersham  v.  Nicholson,  14  Sergeant  &  llawle,  118 ; 
Ruby  v.  Glenn,  5  Watts,  77;  approved  in  Bellas  v.  M'Carty,  10  Watts, 
13,  44 ;  and  therefore  the  same  reasons  exist  for  taking  them  out  of  the 
rule  as  have  been  given  in  the  case  of  sheriffs'  sales.  Before  the  Act  of 
14  June,  1836,  relating  to  assignments,  it  was  said  that  voluntary  assign- 
ments for  the  benefit  of  creditors  were  within  the  rule ;  Cunningham  v. 
Neville,  10  Sergeant  &  Rawle,  201 ;  Hower  v.  Geesaman  and  others,  17 
id.  251 ;  but  under  that  Act,  an  assignment  duly  recorded  stands  upon  the 
footing  of  a  transfer  by  law,  because,  as  the  Act  gives  the  creditors  a  right 
to  have  the  trust  that  is  expressed  in  the  deed  executed  for  their  benefit  by 
the  court,  the  whole  trust  becomes  vested  in  them  in  equity,  under  the 


twyne's   case.  71 

immediate  administration  of  tlie  court,  and  therefore  an  assignment  recorded 
is  iu  eifect  a  transfer  to  the  creditors  by  the  act  of  law,  and  the  recording 
gives  the  transaction  all  the  publicity  of  a  judicial  proceeding;  assignments 
recorded  are  therefore  not  within  the  rule  as  to  possession,  neither  during 
the  thirty  days  allowed  for  recording,  nor  after  record;  Mitchell  v.  Willock, 
2  Watts  &  Sergeant,  253;  Fitler  v.  Maitland,  5  id.  307;  Dallam  v.  Fitler, 
6  id.  323 ;  Klapp's  assignees  v.  Shirk,  1  Harris,  589,  592.  These  seem 
to  be  the  only  exceptions  recognized  in  the  Pennsylvania  cases.  The  case 
of  the  sale  of  an  unfinished  article,  not  to  be  delivered  till  finished,  which 
had  been  left  an  exception  in  Clow  and  another  v.  Woods,  is  declared  in 
Pritchett  and  another  v.  Jones,  4  Rawle,  260,  not  to  be  one :  and  the  case 
of  Bucknel  v.  Royston,  also  recognized  as  an  exception  in  Clow  and 
another  v.  Woods,  appears  to  be  over-ruled  by  Hoofsmith  and  others  v. 
Cope.  The  better  opinion  appears  to  be  that  conditional  sales  are  not 
afiiected  by  this  presumption  of  fraud ;  for  though  it  was  held  in  Martin  v. 
Mathiot,  14  Sergeant  and  Rawle,  214,  that  delivery  of  possession  in  such 
cases  would  devest  the  vendor's  property  in  relation  to  the  vendee's  credi- 
tors, and  there  is  in  Rose  et  al.  v.  Story,  1  Barr,  191,  196,  a  dictum  in 
approval  of  this  decision,  yet  it  seems  to  have  been  over-ruled  by  Myers  v. 
Harvey,  2  Penrose  &  Watts,  478,  where  it  is  said  that  such  a  transaction 
consists  of  two  parts,  a  bailment,  which  is  not  fraudulent,  and  a  superadded 
executory  agreement  to  sell,  which  does  not  transfer  the  title,  and  that  th.; 
title  is  in  the  conditional  vendor  as  in  favour  of  his  own  creditors ;  and  agaiu 
to  be  efiectively  overruled  in  Lehigh  Company  v.  Field,  8  Watts  &  Ser- 
geant, 232,  241,  notwithstanding  the  subtle  distinction  suggested  by  the 
Chief  Justice  between  Martin  v.  Mathiot  and  the  case  before  him.  In  Welsh 
V.  Bekey,  Ex' or  of  Hayden,  it  was  said  that  the  rule  applies  to  choses  in 
action ;  but  in  United  States  v.  Vaughan,  3  Binney,  394,  and  Common- 
wealth V.  Watmouth,  6  Wharton,  117,  it  is  decided  that  an  assignment  of 
stock  in  a  bank  with  a  delivery  of  the  certificate  and  power  of  transfer,  is 
valid  against  an  execution,  though  the  stock  be  not  transferred  on  the  books 
of  the  bank.  Upon  the  whole,  in  Pennsylvania,  the  distinction  established 
appears  to  be  between  conveyances  by  the  act  of  the  owner,  and  by  the  act 
of  the  km.  The  principle  upon  which  all  the  cases  may  stand,  is  this : 
that  every  transfer  of  the  title  by  the  act  of  the  owner,  whether  to  the 
transferree  as  purchaser,  or  to  him  for  his  security  as  a  creditor,  or  as  a 
trustee  for  creditors,  where  the  owner  is  allowed  to  keep  possession,  and 
use  or  traffic  with  the  goods,  longer  than  is  reasonably  necessary  under  the 
circumstances,  is  fraudulent  under  the  statutes  of  Elizabeth,  and  void, 
because  it  is  a  transfer  which  deprives  his  creditors  of  all  benefit  from  his 
property,  but  does  not  so  deprive  himself:  but  that  where  the  transfer  is  an 
operation  of  the  law,  being  by  sheriff's  sale,  insolvent's  assignment,  or  vol- 
untary assignment  recorded,  it  is,  prima  facie,  fair  and  valid,  for  the  whole 
interest  and  right  and  control  have  certainly  past,  clean  and  absolute,  by  the 
command  of  the  law;  and  though  possession  remain  with  the  debtor,  the 
presumption  of  a  trust  reserved  in  the  conveyance  cannot  arise. 

In  Connecticut;  in  Patten  v.  Smith,  5  Connecticut,  196,  the  rule  of 
Hamilton  v.  Russel,  and  that  of  Sturtevant  v.  Ballard,  are  considered  to  be 
the  same :  the  meaning  of  "  possession  accompanying  and  following  the 
deed"  is,  that  "the  possession  must  be  found  where  it  ought  to  be,  consi- 


72  SMITH'sLEADINO     CASES. 

dering  the  subject  in  its  true  light;"  and  as  possession  ought  to  be  delivered 
in  case  of  mortgages  as  much  as  absolute  sales,  the  rule  of  Sturtevant  v. 
Ballard  is  settled  in  that  case  with  increased  precision;  "a  voluntary  sale, 
or  mortgage,  of  chattels,  with  an  agreement  in  or  out  of  the  deed,  that  the 
vendor  may  keep  possession,  is,  except  in  special  cases,  and  for  special 
reasons,  to  be  shown  to,  and'  approved  by  the  court,  fraudulent  and  void 
against  creditors  and  bona  fide  purchasers :"  and  in  this  case,  a  mortgage 
with  possession  retained  was  adjudged  void  against  a  subsequent  vendee. 
In  Swift  V.  Thompson,  9  id.  63,  the  above  rule  is  re-affirmed ;  and  it  is 
said,  "This  has  been  the  law  of  Connecticut  for  the  last  forty  years,  if  not 
from  the  beginning.     It  is  not  according  to  the  course  of  the  court  to  call 
this  a  fraud  per  se,  and  to  direct  the  jury  to  find  the  sale  void,  but  the 
question  is  submitted  to  the  jury  as  a  question  of  fact,  with  instruction  that 
if  they  find  none  of  the  established  exceptions,  they  will  find  the  transac- 
tion fraudulent."     The  possession  in  the  transferee  must  be  actual  and  bona 
fide;  5  id.  196;  if  practicable,  immediate  possession  must  be  taken  ;  if  not 
practicable,  it  must  be  done  within  a  reasonable  time  ;  due  diligence  must 
be  used ;  on  an  assignment  to  a  trustee  for  creditors,  the  trustee  is  allowed 
a  reasonable  time  to  give  notice  to  the  bailifi"  or  take  possession;  and  whe- 
ther this  diligence  was  used,  or  there  was  such  remissness  as  would  infer 
fraud,  is  for  the  jury;  Ingraham  v.  "Wheeler,  6  id.  277  ;  the  presumption  of 
fraud  is  repelled  by  the  fact,  that  it  was  not  practicable  for  the  vendee  to 
take  possession  immediately,  but  that  he  did  so  m  a  reasonable  time,  which 
is  considered  due  diligence ;  Meade  v.  Smith,  16  id.  347,  364.     Under  this 
rule,  if  a  ship  at  sea  be  sold  or  mortgaged,  possession  must  be  taken   "  as 
soon  as  may  be"  on  her  return;  Starr  v.  Knox,  2  id.  215;  5  id.  200 ;  or 
"  within  a  reasonable  time,"  Ingraham  v.  Wheeler.     The  rule  of  Patten  v. 
Smith  applies  equally  to  choses  in  action ;  so  that  if  the  assignor  retain  an 
assigned  bond,  no  right  passes,  and  he  may  assign  it  to  another;  Smith  v. 
Patten,  citing  1  Atk.  171.     The  usual  exception  of  marriage-settlement,  &c., 
are  recognized  in  Swift  v.  Thompson  :  and  property  exempt  from  execution 
is  another  exception  ;  Patten  v.  Smith  and  Shepherd,  4  id.  430.     In  Mills 
V,  Camp  and  others,  14  id.  219,  Carter  and  another  v.  Watkins,  id.  241, 
and  Oshorne  v.  Tuller  and  another,  id.  530,  in  which  last,  all  the  cases  are 
reviewed,  the  old  principle  is  maintained,  and  the  result  of  these  decisions 
appears  to  be,  that  the  rule  is  one  of  policy,  and  not  of  intention ;  that  is  not 
enough  that  the  jury  find  that  the  sale  was  bona  fide  and  for  full  considera- 
tion, though  evidence  of  that  is  proper  to  be  submitted  to  the  jury  to  repel 
actual  fraud ;  there  must  be  shown  some  reason  for  the  retention,  legally 
sufficient  and  satisfactory ;  the  presumption  of  fraud  is  a  presumption  of 
law,  and  the  law  judges  of  the  cases  in  which  it  does  not  arise,  and  the  jury 
are  to  be  instructed  by  the  court  as  to  the  sufficiency  of  the  facts  and  rea- 
sons alleged  to  justify  the  retention.     In  the  last  case  the  court  held  that 
assignments  for  creditors  under  the  act  of  that  state  of  1828,  were  not  within 
the  general  principle,  unless  the  assignee  allowed  the  assignor  to  treat  the 
assignment  as  void  by  suffering  him  to  hold  himself  out  to  the  public  as 
being  the  real  owner  of  the  property  :  and  the  reason  of  this  exception  ap- 
pears to  be  that  the  proceedings  under  that  act  are  of  a  legal  kind,  and  the 
transfer  is  in  a  great  degree  a  judicial  proceeding.     In  the  recent  case  of 
Kertland  V.  Snow,  20  id.  23,  28,  29,  where  the  rule  of  the  last  cited  cases,  is 


T  W  Y  N  E  '  S    C  A  S  E.  73 

confirmed,  it  is  said  by  the  court,  that  ''  the  reason  of  extending  it  from  a 
mere  rule  of  evidence,  calling  it  a  badge  of  fraud  only,  and  arbitrarily  declar- 
ing, as  matter  of  law,  that  it  renders  the  sale  void,  as  to  creditors,  notwith- 
standing the  highest  evidence  of  the  honesty  of  the  sale,  is,  because  it  has 
been  thought  better  to  take  away  the  temptation  to  practise  fraud,  than  to 
incur  the  danger  arising  from  the  facility  with  which  testimony  may  be 
manufactured,  to  show  that  a  sale  was  honest." 

In  Vermont,  the  principle  of  Sturtevant  and  Keep  v.  Ballard  is  received, 
and  maintained  with  great  strictness.     On  a  sale  of  chattels,  there  must  be 
a  delivery,  and  a  substantial,  visible  change  of  possession,  or  the  sale  is  frau- 
dulent by  construction  of  law,  and  void  as  to  creditors ;  Durkee  v.  Mahoney, 
1  Aiken,  116 ;  Mott  v.  M'Neil,  id.  162  ;  Weeks  v.  Wead,  2  id.  61,  where 
the  principle  is  examined  at  length,  and  the  rule  ably  vindicated  ;  in  later 
cases  it  is  repeatedly  declared,  that  the  invalidity  of  the  sale  does  not  depend 
on  any  fraudulent  intention — that  "  no  matter  how  honest  the  conveyance 
may  be  in  point  of  fact,  the  law  from  principles  of  policy,  pronounces  it  frau- 
dulent per  se,  and  void" — that,  this  rule  has  ever  "  been  most  undeviatingly 
adhered  to" — and,  that  "  experience  shows  it  to  be  a  doctrine  founded  in 
the  soundest  policy,  from  which  there  is  no  disposition  to  recede ;"  Fuller, 
Jr.  v.  Sears  et  al,,  5  Vermont,  527;  Gales  v.  Gaines,  10  id.  346;  Foster  v. 
McGregor  &  Stiles,  11  id.  595;  Lynde  &  Morse  v.  Melvin,  id.  683  ;  Wilson 
V.  Hooper,  12  id.  653;  Kockwood  v.  Collamer  et  al.,  14  id.  141.     The  pos- 
session of  the  vendee  must  be  exclusive ;  at  least,  the  sale  is  fraudulent,  if 
the  vendor  retain  joint  or  concurrent  possession,  that  is,  such  as  appears  to 
be  of  the  same  description,  in  use,  occupancy  and  disposition,  as  that  of  a 
joint  owner;  Kendall  v.  Samson,  12  id.  515;  Allen  v.  Edgerton,  3  id.  442  ; 
Hall  V.  Parsons,  17  id.  272,  279  :  and  the  court  after  defining  to  the  jury 
what  constitutes  possession,  are  to  leave  it  to  them  to  determine  whether  the 
vendor  was  in  possession,  or  in  possession  jointly  with  the  vendee;  Hall  v. 
Parsons,  15  Vermont,  358;  S.  C.  17  id.  272,  276.     The  possession  must 
also  be  continuing;  and  if  the  vendee,  or  his  agent  even  without  his  know- 
ledge, sufi'er  the  thing  to  go  back  to  the  vendor,  the  sale  is  rendered  frau- 
dulent ;  Morris  et  al.  v.  Hyde,  8  id.  352;  Rogers  v.  Vail  et  al.  16  id.  327, 
829  ;  Mills  v.  Warner,  19  id.  609  :  but  if  the  thing  be  bailed  at  the  time  of 
sale,  and  the  bailee  let  it  return,  it  will  not  vitiate  the  sale,  for  the  bailee  then 
acts  as  the  servant  of  the  vendor ;  Lynde  and  Morse  v.  Melvin.     In  the 
case  of  Dewey  v.  Thrall  et  al.  13  id.  281,  the  rule  was  said  to  be,  that  the 
possession  of  the  vendee  must  be  so  visible,  notorious,  and  continued,  that 
the  creditors  may  be  presumed  to  have  notice  of  it ;  and  in  Farnsworth  v. 
Shepai-d,  6  id.  521,  seven  months'  continuance  was  held  to  be  sufficient. 
The  general  rule  of  fraud  in  law  does  not  apply,  if  the  delivery  be  perfected 
at  any  time  before  an  execution  comes ;  yet  even  non-delivery  would  be 
competent  evidence,  from  which  the  jury  might  infer  a  fraudulent  intent  in 
fact ;  Kendall  v.  Samson.     The  rule  does  not  apply,  if  at  the  time  of  the 
sale,  the  goods  are  in  possession  of  a  bailee ;  Barney  v.  Brown,  2  id.  374 ; 
Spaulding  v.  Austin,  id.  555 ;  Harding  v.  Janes,  4  id.  462 ;  Lynde  and 
Morse  v.  Melvin ;  but  then  notice  must  be  given  to  the  bailee,  Moore  v. 
Kelly,  5  id.  34,  by  the  jmrchascr,  or  by  his  orders,  through  some  other  per- 
son than  the  creditor;  Judd  and  Harris  v.  Langdon,  id.  231;    Pierce  v. 
Chipman,  8  id.  334;  Whitney  v.  Lynde,  16  id.  579,  586;  and  the  bailee 


74  SMITU'SLEADINGOASES. 

must  assent  and  agree  to  keep  the  article  for  the  purchaser ;  Wliitney  v. 
Lyndc ;  and  the  reason  of  the  exception  is,  that  the  possession  being  with 
a  third  person  is  notice  to  creditors  and  others  that  the  title  may  have  been 
parted  with  ;  they  are  put  upon  inquiry,  and  if  they  will  ask  the  bailee,  he 
can  inform  them  accurately  : — see  to  the  same  effect,  Merritt  v.  Miller, 
13  id.  416 ;  Potter  v.  Washburn,  id.  558  ;  and  see  Kockwood  v.  Collamer 
et  al.  14  Vermont,  141.  The  rule  also  does  not  apply  if  the  property  is 
such  as  is  exempt  from  execution ;  Foster  v.  M'Gregor  and  Stiles :  nor  does 
it  apply  to  a  sale  by  the  sheriff  on  execution,  partly  on  the  ground  of  noto- 
riety, and  partly  because  the  sale  is  the  act  of  the  law ;  Boardman  v.  Keeler, 
et  al.  1  Aiken,  158,  2  id.  70 ;  Bates  v.  Carter,  5  Vermont,  602  ;  Gates  v. 
Gaines;  Cilley  v.  Cushman,  12  id.  494;  but  it  must  be  a  regular  compul- 
sory sale  according  to  the  course  of  legal  process,  and  a  sale  by  public  auc- 
tion will  not  form  an  exception  ;  Rogers  v.  Vail  et  al.  16  id.  327 ;  Batchelder 
V.  Carter,  2  id.  168  ;  and  if  the  sale,  though  made  publicly  by  the  sheriff, 
be  not  legally  under  the  process  in  his  hands,  but  by  consent  of  parties,  it 
will  not  be  within  the  exception,  because  it  is  not  a  transfer  of  the  title  by 
operation  of  law ;  Kelly  v.  Hart,  14  id.  50.  With  regard  to  the  principle 
of  possession  in  accordance  with  the  deed,  and  the  consequent  exception  of 
contingent  sales,  which  is  recognized  in  Weeks  v.  Wead,  (a.  d.  1820,)  it  is 
there  held  to  mean,  that  the  possession  must  be  in  accordance  with  the 
limitation  of  interest  made  by  the  deed,  as  in  the  case  of  a  settlement  of 
furniture  on  marriage,  and  that  the  mere  insertion  of  an  agreement  to  the 
effect  that  possession  should  be  kept,  would  not  do ;  "  an  assigment,"  it  is 
said  in  that  case,  "  of  goods,  with  condition  that  possession  shall  not  be 
taken  till  forfeited,  or  the  insertion  of  a  clause  in  the  bill  of  sale,  when  the 
sale  is  otherwise  absolute,  that  the  vendor  shall  remain  in  possession,  will 
not  make  his  possession  consistent  with  the  deed,  or  take  the  case  out  of  the 
rule;" — the  form  of  the  conveyance  can  make  no  difference,  if  from  the 
nature  of  the  transaction,  the  sale  is  absolute,  and  possession  can  accompany 
it ; — indeed,  the  rule  appears  to  apply  to  all  cases,  except  where  the  pur- 
pose of  the  conveyance  and  the  nature  of  the  transaction  entitle  or  require 
the  vendor  to  continue  in  possession,  and  the  law,  considering  it  necessary 
and  justifiable,  approves  and  permits  it ;"  and  the  court  give  as  instances, 
Maggott  V.  Mills,  Kyd  v.  Rawlinson,  and  Bucknall  v.  Royston.  This  is  in 
effect  the  rule  of  Sturtevant  and  Keep  v.  Ballard,  and  Clow  and  another  v. 
Woods.  According  to  the  dicta  of  Weeks  v.  Wead,  mortgages  are  within 
the  rule ;  and  in  the  case  of  a  sale  and  mortgage  back  to  secure  the  pur- 
chase-money they  were  determined  to  be  so,  in  Tobias  v.  Francis,  3  Ver- 
mont, 425,  and  Woodward  v.  Gates  and  Cheney,  9  id.  358 ;  though  the  case 
of  common  mortgages  was  left  undecided  in  Gifford  v.  Ford,  5  id.  532.  It 
may  be  remarked  as  an  illustration  of  the  extreme  nicety  of  the  considera- 
tions belonging  to  this  subject,  that  in  Kentucky,  where  precisely  the  same 
explanation  is  given  of  the  meaning  of  "  consistency  with  the  deed,"  as  in 
Weeks  v.  Wead,  a  different  conclusion  is  reached  as  to  mortgages  being 
embraced  by  it :  the  truth  is,  that  the  notion  of  a  mortgage  of  chattels  at 
common  law,  is  very  uncertain.  In  Vermont,  as  to  conditional  sales,  (viz. 
where  the  possession  is  delivered,  but  the  property  does  not  pass  till  pay- 
ment,) it  is  decided  in  Bigelow  v.  Huntley,  8  Vermont,  151,  that  the  goods 
are  not  rendered  by  the  delivery  liable  to  the  vendee's  creditors,  though 


twyne'scase.  75 

fraudulent  representations  as  to  the  title  would  render  them  so.  An  assign- 
ment for  the  benefit  of  creditors  is  fully  within  the  rule  ;  Rogers  v.  Vail  et 
al,  16  id.  327 

(3).  The  other  courts  of  the  Union  seem  to  have  adopted  the  practice  of 
referring  the  question  of  fraud  to  the  jury. 

In  Massachusetts  and  Maine,  the  principle  appears  to  be,  that  reten- 
tion of  possession  upon  an  absolute  conveyance  of  chattels,  is  sufficient  evi- 
dence of  fraud :  but  retention  consistently  with  the  nature,  operation  and 
purpose  of  the  conveyance,  is  no  evidence  of  fraud  :  and  that  it  is  in  no  case 
fraud,  or  conclusive  evidence  of  fraud.  Brooks  v.  Powers,  15  Massachu- 
setts, 244 ;  Fletcher  v.  Willard,  14  Pickering,  464 ;  Briggs  v.  Parkman,  2 
Metcalf,  258  ;  Haskell  et  al.  v.  Greenly,  3  G-reenleaf,  425 ;  Reed  v.  Jewett, 
6  id.  96;  Holbrook  v.  Baker,  id.  309.  In  absolute  sales,  possession  is  evi- 
dence, and  generally  very  strong  evidence,  of  fraud  for  the  jury  ;  Brooks  v. 
Powers  ;  Ulmer  v.  Hills,  8  Greenleaf,  326 ;  a  secret  trust,  or  agreement 
upon  a  bill  of  sale  of  chattels,  absolute  on  its  face,  is  still  but  evidence  of 
fraud ;  N.  E.  Marine  Ins.  Com.  v.  Chandler  and  Trustee,  16  Massachusetts, 
275,  279;  Oriental  Bank  v.  Haskins,  3  Metcalf,  332,  337;  and  secrecy  in 
the  sale  does  not  add  to  the  legal  presumption  of  fraud ;  Glover  et  al.  v. 
Austin,  6  Pickering,  209,  221 ;  and  even  an  express  agreement  to  keep  the 
sale  secret,  is  not,  per  se,  fraudulent,  but  "mere  matter  of  evidence," 
«  strong  perhaps ;"  Gould  v.  Ward,  4  id.  104 ;  5  id.  291,  S.  C. :  and  this 
evidence  may,  in  all  cases,  be  rebutted  by  showing  the  transaction  to  be 
bona  fide,  and  on  valuable  consideration ;  and  the  question  of  fraud  is  to  be 
decided  by  the  jury  upon  the  whole  evidence;  Homes  et  al.  v.  Crane,  2  id. 
607.  See  Clark  v.  French,  23  Maine,  221,  228.  If  possession  is  assumed 
before  an  execution  is  levied,  the  sale  is  valid ;  Bartlett  v.  Williams,  1  id. 
288 ;  Shumway  et  al.  v.  Rutter,  8  id.  443,  447.  Where,  at  the  time  of 
the  sale,  it  is  stipulated  by  fair  and  open  agreement,  that  the  vendor  shall 
retain  possession  for  a  given  time ;  (Wheeler  v.  Train,  3  id.  225 ;)  and  in 
case  of  mortgages,  and  other  contingent  conveyances,  for  the  security  of  the 
grantee ;  and,  generally,  where  the  retention  is  consistent  with  "  the  terms 
of  the  contract,  the  intention  of  the  parties,  and  the  nature  of  the  transac- 
tion," non-delivery  of  possession  is  sufficiently  explained,  and  is  no  longer 
evidence  of  fraud ;  Badlam  v.  Turner,  1  id.  389  ;  Homes  et  al.  v.  Crane  ; 
Glover  et  al.  v.  Austin ;  Adams  v.  Wheeler,  10  id.  199 ;  Lunt  v.  Whitaker, 
1  Fairfield,  310 ;  Cutter  v.  Copeland,  6  Shepley,  127 ;  Lane  v.  Borland,  2 
id.  77 ;  Pierce  v.  Stevens,  30  Maine,  184.  However,  in  the  recent  case  of 
Bobbins  v.  Parker,  3  Metcalf,  117,  the  principle  of  Summerville  v.  Horton, 
4  Yerger,  541,  is  adopted,  and  it  is  decided,  that  the  mortgage  and  non- 
delivery of  perishable  articles,  which  cannot  be  kept,  or  the  mortgage  of  any 
articles  under  an  agreement  or  understanding  that  they  are  to  be  used  and 
consumed  by  the  mortgagee,  is  in  itself  fraudulent  against  creditors.  In 
Massachusetts,  by  statute  of  1832,  sec.  157,  Revised  Statutes,  p.  473,  no 
mortgage  of  chattels,  except  ships  at  sea,  is  valid  but  between  the  parties, 
unless  possession  is  delivered  to,  and  retained  by,  mortgagee,  or  the  mortgage 
is  recorded  by  the  town  clerk  :  recording  is  equivalent  to  delivery  of  posses- 
sion; Bullock  V.  Williams,  16  Pickering,  33.  In  case  of  sales  or  mortgages  of 
ships  at  sea,  or  in  a  distant  port,  the  sale  transfers  the  property  at  once,  and 
will  prevail  against  subsequent  attachments,  unless  the  first  vendee  is  guilty 


76  smith's  leading  cases. 

of  gross  negligence  and  delay  in  taking  possession  after  the  property  arrives : 
Putman  v.  Dutch,  8  Massachusetts,  286  ;  Joy  et  al.  v.  Sears,  9  Pickering, 
4 ;  Turner  and  another  v.  Coolidge,  2  Mctcalf,  350. 

In  Ohio,  it  is  considered  as  settled,  that  retention  of  possession  upon  abso- 
lute sales  is  not  conclusive  of  fraud,  though  it  is  such  presumptive  evidence 
of  it,  as  puts  upon  the  vendee  the  burden  of  satisfying  the  jury  that  the  sale 
was  fair  and  bona  fide.  Rogers  v.  Dare  et  al.,  Wright,  136  j  Burbridge  v. 
Seely,  Morlcy  &  Co.  id.  359.  See  Shaw  and  Ball  v.  Lowry,  id.  190,  as  to 
what  circumstances  will  make  the  conveyance  void.  In  the  late  case  of 
Collins  &  McElroy  v.  Myers  et.  al.,  16  Ohio,  547,  552,  the  court  said  that 
they  regarded  it  as  perfectly  well  settled  law,  that  on  a  sale  or  mortgage  of 
personal  property  a  continuance  of  possession  by  vendor  or  mortgagor,  is 
only  prima  facie  evidence  of  fraud,  which  may  be  explained  away  or  rebut- 
ted, by  showing  that  such  possession  was  honest  and  fair.  But  they  held 
that  a  continuance  of  possession  with  a  power  of  disposition  and  sale  on  the 
part  of  the  mortgagcir,  either  express  or  implied,  is  necessarily  fraudulent 
and  void  as  against  creditors,  as  such  a  mortgage  is  no  security  to  the  mort- 
gagor, and  of  no  effect,  but  to  ward  off  other  creditors. 

In  Tennessee,  we  find  the  distinction  taken  as  to  possession  according  to 
the  title  in  the  deed ;  but  the  presumption  is  broken  down  to  be  a  mere 
matter  of  evidence  for  the  jury.  Originally  the  principle  of  Hamilton  v. 
Russel,  was  adopted,  and  it  was  held,  that  retaining  possession  upon  an 
absolute  sale  was  a  fraud  in  law ;  Ragan  v.  Kennedy,  1  Overton,  91,  (a.  d. 
1804):  but  in  Callen  v.  Thompson,  3  Yerger,  475,  (a.  d.  1832,)  the  cases, 
and  the  reasons  of  them,  were  examined,  and  it  was  held,  that  possession  is 
not  in  itself  a  fraud,  but  is  only  such  prima  facie  evidence  of  it,  as  puts 
upon  the  vendee  the  burden  of  proving  fairness,  and  that  proof  of  fairness, 
and  a  full  and  adequate  consideration,  will  repel  the  presumption  of  fraud ; 
confirmed  in  Young  &  Young  v.  Pate  and  Kernigog,  4  id.  164 ;  Maney  v. 
Killough,  7  id.  440,  and  Wiley  v.  Lashlee,  8  Humphreys,  717,  720.  It  is 
evidence  of  fraud,  when  the  possession  is  retained  contrary  to  the  right  and 
title  transferred  by  the  deed,  but  not  if  the  retention  be  in  accordance  there- 
with ;  thus,  it  is  not  evidence  of  fraud  if  the  mortgagor  remain,  with  the 
assent  of  the  mortgagee,  in  possession,  till  default,  for  he  is  in  that  case, 
entitled  to  do  so,  whether  it  be  so  agreed  by  the  deed  or  not ;  but  to  remain 
after  default  is  evidence  of  fraud,  for  that  is  not  consistent  with  the  title. 
And  whenever  it  is  made  to  appear,  that  a  deed,  absolute  on  its  face,  was 
intended  by  the  parties  as  a  mortgage  only,  the  presumption  of  fraud  that 
may  have  existed  on  account  of  the  assignor's  possession,  disappears ;  Wiley 
V.  Lashlee,  8  Humphreys,  717,  720.  So  upon  an  assignment  to  a  trustee 
for  the  benefit  of  creditors,  it  is  evidence  of  fraud  if  the  grantor  remain  in 
possession  after  the  time  when  the  trustee  ought  to  take  possession  and  sell ; 
and  if,  by  the  deed,  the  trustee  is  to  take  possession  and  sell  immediately, 
then,  retaining  possession  at  all  is  evidence  of  fraud  ;  Darwin  v.  Hanley,  3 
id.  502  ;  Manley  v.  Killough.  But  should  the  property  be  of  a  kind 
which  is  consumed  by  the  use  of  it,  as  domestic  stores,  then  the  debtor's 
continuing  in  the  use  of  it,  is  evidence  of  fraud,  in  fact,  for  the  jury ;  Dar- 
win V.  Handley;  Charlton  v.  Lay,  5  Humphreys,  496;  and  if  the  use  of 
such  things  be  retained  by  a  stipulation  in  the  deed,  the  conveyance  would 
be  absolutely  void,  for  it  would  necessarily  be  in  trust  for  the  debtor,  and 


twyne'scase.  77 

in  hindrance  of  his  creditors ;  Somervillc  v.  Horton,  4  id.  541 ;  confirmed 
in  Maney  v.  Killough  ;  Simpson  v.  Mitchell,  8  id.  419 ;  Richmond  v.  Cardup, 
Meigs,  581 ;  Trabue  v.  Willis,  id.  583,  n. ;  and  now  adopted  in  Massachu- 
setts ;  and  approved  of  in  Alabama ;  Ravisies  v.  Alston,  trustee,  5  Alabama, 
297,  302  ;  Wiswall  v.  Ticknor  &  Day,  6  id.  179,  184.  Delivery  of  posses- 
sion on  a  conditional  sale,  gives  no  title  to  those  purchasing  from  the  condi- 
tional vendee  ;  Grambling  v.  Read,  Meigs,  281. 

In  Missouri,  in  the  earlier  cases,  it  was  held,  that  retention  of  possession 
on  sales  and  mortgages,  was  fraudulent  in  law ;  but  the  later  decisions 
determine  that  possession  remaining  with  a  person  who  professes  to  have 
parted  with  the  legal  title,  is  prima  facie  evidence  of  fraud  only,  and  evi- 
dence is  admissible,  to  show  that  the  transaction  is  fair ;  Shepherd  v.  Trigg, 
7  Missouri,  151,  157;  Ross  v.  Crutsinger,  id.  245;  King  v.  Bailey,  8  id. 
882.     Milburn  v.  Waugh,  Corthron  et  al.  11  Missouri,   369,  873. 

In  GrEORGiA,  it  is  agreed  that,  formerly,  an  absolute  sale  of  chatties  unac- 
companied by  possession,  was  fraudulent  in  law,  and  void  as  against  creditors, 
but  that  the  modern  rule  is,  that  the  possession  is  susceptible  of  explanation. 
The  rule  now  well  established  in  the  courts  of  that  state  is,  that  possession 
in  the  vendor,  in  ease  of  an  absolute  sale,  is  prima  facie  evidence  of  fraud, 
but  may  be  explained,  and  the  onus  of  explanation,  after  possession  is  proved 
is  upon  the  grantee,  and  the  question  of  fraud,  or  not  fraud  is  to  be  submitted 
to  the. jury;  if  no  explanation  is  given,  the  presumption  becomes  conclusive  : 
Peck  V.  Land,  2  Kelly  1,  12 ;  Fleming  v.  Townsend,  6  Georgia  104,  105  ; 
Beers  and  others  v.  Dawson,  8  id.  557. 

In  Texas,  also,  it  has  been  decided  that  retention  of  possession  after  an 
absolute  sale  is  not  fraud  per  se,  but  affords  a  reasonable  presumption  of 
fraud,  which  like  other  presumptions,  admits  of  explanation  showing  it  to  be 
honest,  and  if  there  be  such  explanatory  circumstances,  they  are  to  go  to  the 
jury  to  rebut  the  presumption  of  fraudulent  intent ;  Bryant  v.  Kelton,  and 
Uzzell,  1  Texas,  415,  431 ;  Morgan  v.  The  Republic,  2  id.  279. 

In  North  Carolina,  it  appears  to  be  agreed  that  retaining  possession  after  a 
sale,  is  not  fraud  in  law,  but  is  only  evidence  of  fraud  :  Ilea  v.  Alexander, 
5  Iredell,  644. 

EXECUTIONS  to  hinder  and  delay  creditors,  are  included  in  the  statute 
13  Eliz.  ch.  5,  In  the  Circuit  Court  of  the  3rd  circuit,  the  distinction  is 
established  between  a  delay  by  the  officer,  and  a  delay  by  the  order  or 
advice  of  the  plaintiff  in  the  execution ;  the  officer,  after  a  levy,  need  not 
remove  the  property  nor  sell  immediately,  if  the  sale  be  within  a  reasonable 
time;  but  the  only  legal  purpose  of  an  execution  is  to  obtain  satisfaction  of 
the  debt,  and  therefore  if  the  plaintiff  directs  the  sheriff  not  to  execute  it 
till  a  certain  time,  or  till  further  orders,  or  directs  him  to  levy,  and  leave  the 
property  with  the  debtor  until  otherwise  directed';  this  at  once  renders  the 
execution  fraudulent  and  void  against  later  executions  levied  before  the 
order  not  to  proceed  is  countermanded ;  and  the  goods  remaining  in  the 
debtor's  hands  an  unreasonable  length  of  time  with  the  knowledge  and 
assent  of  the  plaintiff  in  the  execution,  is  legal  evidence  of  the  delay  being 
his  act:  U.  S.  v.  Conyngham,  et  ah,  Wallace's  C.  C.  R.  178;  (brief  note 
of  S.  C.  without  arguments  or  opinions,  in  4  Dallas,  358;)  Barnes  et  al.  v. 
Billington  et  al.,  1  Washington  C.  C.  R.  29,  37 ;  Berry  v.  Smith,  3  id.  60. 


78  smith's    LEADING     CASES. 

The  establishment  of  this  clear  and  satisfactory  principle,  which  has  been 
adopted  in  New  York  and  Pennsylvania,  and  other  states,  is  due  to  Judge 
Griffitu,  of  New  Jersey,  whose  opinion  in  the  case  of  U.  S.  v.  Conyng- 
hani  et  al.  is  a  fine  specimen  of  the  powers  of  that  able  lawyer,  and  highly 
accomplished  scholar. 

In  New  York,  the  same  distinction  is  established  in  Rew  v.  Barber,  3 
Cowen,  272,  and  llussell  v.  Gibbs,  5  id.  390 ;  Ball  v.  Shell,  21  Wendell, 
222 ;  Knower  v.  Barnard,  5  Hill,  877 ;  The  Herkimer  County  Bank  v. 
Brown,  6  id.  232 ;  and  the  older  cases  accord  with  this  distinction,  though 
not  expressed  to  be  grounded  upon  it ;  the  executions  being  held  fraudulent, 
where  the  possession  or  use  was  left  a  long  time  with  the  debtor  by  direc- 
tion of  the  plaintiff,  in  Storm  &  Beekman  v.  Woods,  11  Johnson,  110  : 
Farrington  &  Smith  v.  Sinclair,  15  id.  428,  and  Kellog  v.  Griffin,  17 
id.  274 ;  and  it  being  held  in  Whipple  v.  Foot,  2  id.  418,  and  Doty  v. 
Turner,  8  id.  20,  that  mere  delay  does  not  avoid  the  levy,  though  great 
delay  might  authorise  the  jury  to  infer  the  consent  and  direction  of  the 
plaintiff. 

In  Pennsylvania,  the  law  now  appears  to  be  precisely  the  same,  though 
formerly  different,  or,  rather,  unsettled.  It  is  evident,  indeed,  from  Levy 
v.  Wallis,  and  Chancellor  v.  Phillips,  4  Dallas,  167,  213,  and  other  cases 
referred  to  in  U.  S.  v.  Conyngham  et  al.,  Wallace  C.  C  R.  178,  that  the 
early  decisions  in  Pennsylvania  had  fluctuated,  because  the  true  principle 
was  not  discovered ;  but  upon  that  principle  being  stated  by  Judge  Griffith, 
and  more  clearly  explained  by  Judge  Washington,  the  decisions  in  Penn- 
sylvania have  ever  since  been  in  accordance  with  it.  Merely  leaving  the 
property  in  possession  of  the  debtor  is  not  fraudulent ;  but  an  order  by  the 
plaintiff  in  the  execution  to  the  sheriff  to  delay  proceedings,  renders  the 
execution  fraudulent  against  later  executions  levied  during  the  stay,  or 
against  subsequent  purchasers ;  whether  the  levy  be  returned  or  not,  and 
whether  or  not  the  later  claimant  had  notice ;  Eberle  v.  Mayer,  1  Rawle, 
3G6 ;  Commonwealth  v.  Stremback  and  others,  3  id.  341 ;  M'Clure  v.  Ege, 
7  Watts,  74 ;  Metz  and  another  v.  Hanman,  5  Wharton,  150 ;  the  test  is, 
"  the  presence  or  the  absence  of  a  direction  to  stay  proceedings  on  the  levy. 
The  principle  of  this  test  is,  that  to  levy  with  directions  to  proceed  no 
further,  can  be  referred  to  no  object  but  the  creation  of  a  lien,  which  the 
law  does  not  tolerate;"  per  Gibson,  C.  J.,  in  Hickman  v.  Caldwell,  4 
Rawle,  376;  and  that  an  order  to  stay  proceedings  in  case  of  household 
furniture,  will  have  the  same  fraudulent  effect,  is  the  point  decided  in  Com- 
monwealth V.  Stremback  and  others.  An  order  will  have  this  effect,  though 
there  be  no  fraudulent  intent,  and  of  course  taking  out  execution  with  intent 
not  to  have  it  executed  bona  fide,  and  it  be  not  so  executed,  though  there 
be  no  order  to  proceed,  will  postpone  the  execution.  Weir  v.  Hale,  3 
Watts  &  Sergeant,  285.  A  postponement  of  the  sale  to  any  time  within 
the  return-day,  is  a  mere  adjournment  and  not  fraudulent;  but  an  adjourn- 
ment to  a  time  beyond  the  return-day,  would  be  equivalent  to  an  indefinite 
postponement  and  a  badge  of  fraud,  because  no  sale  could  then  be  made  on 
the  writ;  Lantz  v.  Worthington,  4  Barr,  153,  155.  But  a  delay  proceed- 
ing from  the  officer,  though  by  sufferance  of  the  plaintiff,  without  fraud  on 
his  part,  will  not  postpone  the  plaintiff's  execution;  Howell  v.  Atkyn,  3 
Rawle,  282;  explained  in  Hickman  v.  Caldwell;  M'Coy  v.  Reed,  5  Watts, 


T  W  Y  N  E  '  S     C  A  S  E.  79 

300.  But  though  the  rule  in  Pennsylvania  is,  that  the  officer  need  not 
"  remove  the  property,  nor  put  a  person  in  charge,  nor  sell  immediately  ;" 
Commonwealth  V.  Stremback  and  others;  yet  it  is  required  that  he  should 
do  it  in  a  reasonable  time;  Wood  v.  Vanarsdalc,  4  Rawle,  401;  for  if 
the  property  be  left  unreasonably  long,  the  delay  will  afford  evidence  of 
the  plaintiff's  being  the  fraudulent  cause  of  it,  and  will  therefore  vitiate 
the  execution;  Corlies  &  Co.  v.  Stanbridge,  5  Rawle,  28G,  290;  espe- 
cially if  the  levy  is  not  returned ;  Lewis  v.  Smith,  2  Sergeant  &  Rawle, 
142.  Household  goods  cannot  be  left  more  than  a  reasonable  time ; 
Cowden  v.  Brady  and  others,  8  id.  505,  510  ;  as  to  the  reasonable  length 
of  time  in  such  cases,  see  Commonwealth  v.  Stremback  and  others,  and 
Dean  and  others  v.  Patton,  13  Sergeant  &  Rawle,  341,  345;  and  as  to 
what  is  a  reasonable  time  in  general  cases,  see  Judge  Griffith's  opinion 
in  U.  S.  V.  Conyngham  et  al.  1  Smith,  73. 

In  Alabama,  also,  it  is  settled  that  if  an  execution  issued  is  stayed  or 
held  up  by  direction  of  the  plaintiff,  the  proceeding  is  fraudulent  in  law, 
and  the  execution  constitutes  no  lien  as  against  junior  ones  regularly  levied 
and  enforced ;  Wood  v.  Gary  et  al.  4  Alabama,  43 ;  Patton  v.  Hayter, 
Johnson  and  Co.  15  id.  18,  21. 

In  Kentucky,  a  similar  principal  has  been  adopted  ;  the  officer  is  not 
obliged  to  take  exclusive  possession  under  a  levy  on  chatties,  and  therefore, 
the  simple  retention  of  the  property  by  the  debtor,  if  it  be  not  continued  longer 
than  a  vigilant  officer  may  conveniently  require  to  sell  the  property,  is  not 
alone,  even  prima  facie  proof  of  a  fraudulent  intent,  though  it  might  be  some 
slight  evidence  of  collusion ;  but  a  retention  of  possession,  with  a  right  in 
the  debtor  to  consume  or  sell  the  property,  or  any  indefinite  holding  by  the 
debtor,  without  any  effort  by  the  creditor  to  sell  the  property,  within  the 
ordinary  or  usual  time,  is  prima  facie  evidence  of  fraud ;  and  therefore,  if 
there  be  a  continued  possession  by  the  debtor  for  months  after  the  levy,  and 
there  be  no  evidence  to  rebut  the  presumption  of  fraud,  the  jury  will  be 
directed  to  find  that  the  levy  is  void  against  a  subsequent  execution  creditor  ; 
Swigert,  &c.  v.  Thomas,  7  Dana,  220,  222. 

In  New  Jersey,  the  rule  in  Berry  v.  Smith  is  not  strictly  adopted :  mere 
delay,  or  an  order  from  the  plaintiff  not  to  proceed,  will  not  postpone  an 
execution  to  a  subsequent  one  ;  Casher  v.  Peterson,  1  Southard,  317  ;  Wil- 
liamson V.  Johnston,  7  Halsted,  86;  Sterling  v.  Van  Cleve,  id.  285;  James 
v.  Burnet,  Spencer,  636,  641.  To  have  that  effect,  the  conduct  of  the  prior 
execution  creditor  must  be  fraudulent;  but  it  is  not  necessary  to  prove 
actual  fraud  in  the  concoction  of  the  judgment,  or  an  actual  design  to  defeat 
or  delay  other  creditors ;  it  is  enough  if  the  proceedings  of  the  prior  exe- 
cution creditor  are  an  abuse  of  the  process  of  the  law.  Accordingly,  it  has 
been  determined  that  although  the  creditor  when  he  delivers  his  execution, 
or  at  any  time  afterwards,  may  direct  the  sheriff  not  to  proceed  to  a  sale 
without  further  orders  from  him,  or  unless  urged  on  by  other  executions,  and 
will  not  thereby  lose  his  priority,  if  he  act  in  good  faith ;  yet  that  if  the 
debtor  is  permitted  with  the  knowledge  and  consent  of  the  execution  credi- 
tor, express  or  implied,  not  only  to  retain  the  possession  of  the  property,  and 
to  use  and  enjoy  it  for  ordinary  and  appropriate  purposes,  as  in  the  case  of 
household  goods,  but  to  exercise  an  unlimited  control  over  all  the  property 
levied  on,  whatever  may  be  its  nature,  and  to  use,  sell,  exchange  or  consume 


80  smith's    leading    cases. 

it,  as  the  rightful  and  absolute  owner,  it  is  such  evidence  of  a  fraudulent 
and  colourable  use  of  the  process  of  the  court,  whether  the  debt  be  a  real 
and  just  one  or  not,  as  to  postpone  the  execution  to  younger  ones  sued  out 
and  prosecuted  in  good  faith;  Cumberland  Bank  v.  Ilann,  4  Harrison,  167, 
169;  Cook  V.  Wood,  1  id.  254.  In  Delaware,  also,  a  mere  order  to  the 
sheriflf  to  hold  the  execution  in  his  hands  and  not  proceed  unless  instructed 
to  do  so,  or  compelled  by  other  judgment  creditors,  does  not  postpone  an  exe- 
cution ;  Houston  v.  Sutton,  3  Harrington,  37.  The  practice  of  allowing  exe- 
cutions to  be  used  for  the  purposes  of  a  lien,  is  also  avowedly  established  in 
South  Carolina,  and  dormant  executions  are  never  postponed  but  for  actual 
fraud;  Snipes  v.  The  Sheriff  of  Charleston  district,  1  Bay,  295;  Brown  v. 
Grilliland,  3  Desaussure,  539;  Greenwood  et  al  v.  Naylor,  1  M'Cord,  414, 
where  it  is  decided,  that  endorsing  on  a  fi.  fa.  "  lodged  to  bind,"  which 
was  regarded  as  a  stay,  did  not  prevent  the  execution  taking  the 
money  made  on  a  younger  writ;  Adair  v.  M'Daniel  &  Cornwell  1 
Bailey,  158. 

In  the  Eastern  States,  where  attachment  is  a  usual  mesne  process,  it  is 
generally  held  that  possession  must  be  taken  and  kept,  or  the  property  is 
liable  to  future  attachments.  See  Bagley  v.  White,  4  Pickering,  395,  and 
cases  cited ;  Taintor  v.  Williams,  7  Connecticut,  271 ;  Mills  v.  Camp, 
14  id.  219;  Harding  v.  Janes,  4  Vermont,  462,  465,  dictum. 

H.  B.  W. 


[ns] 


DUMPOR'S    CASE. 


HIL.  45  ELIZ.— IN  THE  KING'S  BENCH, 
[REPORTED  4   COKE,    119.] 


• 


A  condition  not  to  alien  without  license  is  determined  by  the  first  license  gran- 
ted.— Apportionment  of  Conditions. 

In  trespass  between  Dumpor  and  Symns,  upon  the  general  issue,  the 
jurors  gave  a  special  verdict  to  this  effect :  the  President  and  Scholars  of 
the  College  of  Corpus  Cristi,  in  Oxford,  made  a  lease  for  years  in  anno  10 
Eliz.  of  the  land  now  in  question,  to  one  Bolde, 2yroviso  that  the  lessee  or  his 
assigns  should  not  alien  the  premises  to  an//  person  or  persons,  without  the 
special  license  of  the  lessors.     And  afterwards  the  lessor  hy  their  deed,  anno 

(a)  Co.  Ent.  684.  pi.  22.    Cr.  EI.  815,  826. 


dumpor'scase.  81 

13  EHz.,  licensed  the  lessee  to  alien,  or  demise  the  land,  or  any  part  of  it,  to 
any  person  or  persons  quibuscunque.  And  afterwards,  anno  15  Eliz.,  the 
lessee  assigned  the  term  to  one  Tubbe,  ■who  by  his  last  will  devised  it  to  his 
son,  and  by  the  same  will  made  his  son  executor  and  died.  The  son  enter- 
ed generally,  and  the  testator  was  not  indebted  to  any  person,  and  afterwards 
the  son  died  intestate,  and  the  ordinary  committed  administration  to  one  who 
assigned  the  term  to  the  defendant.  The  President  and  Scholars,  by  war- 
rant of  attorney,  entered  for  the  condition  broken,  and  made  a  lease  to  the 
plaintiff  for  twenty-one  years,  who  entered  upon  the  defendant,  who  re-en- 
tered, upon  which  re-entry  this  action  of  trespass  was  brought  :(b)  and  that 
upon  the  lease  made  to  Bolde,  the  yearly  rent  of  33s.  4c?.  was  reserved,  and 
upon  the  lease  to  the  plaintiff,  the  yearly  rent  of  22s.  was  only  reserved. 
And  the  jurors  prayed  upon  all  this  matter  the  advice  and  discretion  of  the 
court,  and  upon  this  verdict  judgment  was  given  against  the  plaintiff.  And 
in  this  case  divers  points  were  debated  and  resolved;  1st.  That  the  aliena- 
r  *lfi  T  ^^^^  ^y  ^^^^''^^^  ^^  TuLbe,  */ta(/(c)  determined  the  condition,  so  that 
L  -I  no  alienation  which  he  might  afterwards  make  could  break  the  pro- 

viso, or  give  cause  of  entry  to  the  lessors,  for  the  lessors  could  not  dispense 
with  an  alienation  for  one  time,  and  that  the  same  estate  should  remain  sub- 
ject to  the  proviso  after.  And  although  the  proviso  be,  that  the  lessee  or  his 
assigns  shall  not  alien,  yet  when  the  lessors  license  the  lessee  to  alien,  they 
shall  never  defeat  by  force  of  the  said  proviso,  the  term  which  is  absolutely 
aliened  by  their  license,  inasmuch  as  the  assignee  has  the  same  term  which 
was  assigned  by  their  assent :  so  if  the  lessors  dispense  with  one  alienation, 
they  thereby  dispense  with  all  alienations  after;  for  inasmuch  as  by  force  of 
the  lessor's  license,  and  of  the  lessees  assignment,  the  estate  and  interest  of 
Tubbe  -was  absolute,  it  is  not  possible  that  his  assignee  who  has  his  estate 
and  interest  shall  be  subject  to  the  first  condition  :  and  as  the  dispensation 
of  one  alienation  is  the  dispensation  of  all  others,  so  it  is  as  to  the  persons, 
for  if  the  lessors  dispense  with  one,  all  the  others  are  at  liberty.  And  there- 
fore it  was  adjudged,  Trin.  28  Eliz.  Rot.  256,  in  com.  Banco  inter  Leeds, (cZ) 
and  Compton,  that  where  the  Lord  Stafford  made  a  lease  to  three,  upon 
condition  that  they  or  any  of  them  should  not  alien  without  the  assent 
of  the  lessor,  and  afterwards  one  alienated  by  his  assent,  and  afterwards 
the  other  two  without  license,  and  it  was  adjudged,  that  in  this  case  the 
condition  being  determined  as  to  one  person  (by  the  license  of  the  lessor) 
was  determined-  in  all.  And(e)  Popham  Chief  Justice,  denied  the  case 
in  16  Eliz.,  Dyer(/)  334  ;  that  if  a  man  leases  land  upon  condition  that 
he  shall  not  alien  the  land,  or  any  part  of  it,  without  the  assent  of  the  lessor, 
and  afterwards  he  aliens  part  with  the  assent  of  the  lessor,  that  he  cannot 
alien  the  residue  without  the  assent  of  the  lessor  :  and  conceived,  that  is  not 
law,  for  he  said  the  condition  could  not  be  divided  or(^)  apportioned  by  the  act 
of  the  parties;  and  in  the  same  case,  as  to  parcel  which  was  alienated  by  the 
assent  of  the  lessor,  the  condition  is  determined ;  for,  although  the  lessee 

ih)  See  3  Wilson,  2.34. 

(c)  1  Roll.  Rep,  70,  390.     1  Roll.  422,471.     2  Bulst  291.     Cro.  Jac.  398.     3  Co.  Pen- 
nant's  case.     3  Ed.  6  Dyer,  66,  a, 

(d)l  Roll  472.    Cro.El.  816.     Godb.  93.     Noy,  .32.     4  Leon.  58.  2  Bulstr.  291. 
fc)  Styles,  317.  (/)  Dy.  334.  pi.  32.    Cro.  El.  816.     Styles,  334.     Moor.  205. 

{g)  Co.  Litt.  215,  a. 

Vol.  i._7 


82  smith's    LEADING     CASES. 

aliens  any  part  of  the  residue,  the  lessor  shall  not  enter  into  the  part  aliened 
by  license,  and,  therefore,  the  condition  being  determined  in  part,  is  deter- 
mined in  all.     And  therefore  the  Chief  Justice  said,  he  thought  the  said 
case  was  falsely  printed,  for  he  held  clearly  that  it  was  not  law.     Nota, 
^^-.-.  reader,  Pascha?  14*  Eliz.  Rot.  1015,  in  Com.  Banco,  that  where  the 
L        -J  lease  was  made  by  deed  indented  for  twenty-one  years  of  three(.(7) 
manors,  A.,  B.,  C,  rendering  rent,  for  A.  &.,  for  B.  5L,  for  C.  10^.,  to  be 
paid  in  a  place  out  of  the  land,  with  a  condition  of  re-entry  into  all  the 
three  manors,  for  default  of  payment  of  the  said  rents,  or  any  of  them,  and 
afterwards  the  lessor  by  deed  indented  and  enrolled,  bargained  and  sold  the 
reversion  of  one  house  and  forty  acres  of  land,  parcel  of  the  manor  of  A., 
to  one  and  his  heirs,  and  afterwards,  by  another  deed  indented  and  enrolled, 
bargained  and  sold  all  the  residue  to  another  and  his  heirs,  and  if  the  second 
bargainee  should  enter  for  the  condition  broken  or  not,  was  the  question  : 
and  it  was  adjudged,  that  he  should  not  enter  for  the(/i)  condition  broken, 
because  the  condition  being  entire,  could  not  he  apportioned  hy  the  act  of  the 
parties,  but  by  the  severance  of  part  of  the  reversion  it  is  destroyed  in  all. 
But  it  icas  agreed,  that  a  condition  may  he(^i"\  apportioned  in  two  cases.     1. 
By  act  in  law.     2.   By  act  and  wrong  of  the  lessee.     By  act  in  law,  as  if  a 
man  seised  of  two  acres,  the  one  in  fee,  and  the  other  in(_;')  borough  English, 
has  issue  two  sons,  and  leases  both  acres  for  life  or  years,  rendering  rent 
with  condition,  the  lessor  dies,  in  this  case  by  this  descent,  which  is  an  act 
in  law,  the  reversion,  rent,  and  condition  are  divided. (/i:)  2.  By  act  and  wrong 
of  the  lessee,  as  if  the  lessee  makes  a  feoffment  of  part,  or  commits  waste(^) 
in  part,  and  the  lessor  enters  for  the  forfeiture,  or  recovers  the  place  wasted, 
there,  the  rent  and  condition  shall  be  apportioned,  for  none  shall  take  advan- 
tage of  his  own  wrong,  and  the  lessor  shall  not  be  prejudiced  by  the  wrong 
of  the  lessee ;  and  the  Lord  Dyer,  then  Chief  Justice  of  the  Common  Pleas, 
in  the  same  ease,  said,  that  he  who  enters  for  a  condition  broken,  ought  to 
he  in  of  the  same  estate  ichich  he  liad  at  the  time  of  the  condition  created, 
and  tho.t  he  cannot  have,  when  he  has  departed  with  the  reversion  of  part : 
and  with  that  reason  agrees  Litt.  80,  b.     And  vide  4  &  5  Ph.  &  Mar. 
Dyer,(«i)  152,  where  a  proviso  in  an  indenture  of  lease  was,  that  the  lessee, 
his  executors  or  assigns,  should  not  alien  to  any  person  without  license  of 
the  lessor,  but  only  to  one  of  the  sons  of  the  lessee  j  the  lessee  died,  his 
executor  assigned  it  over  to  one  of  his  sons,  it  is  held  by  Stamford  and  Cat- 
lyn,  that  the  son  might  alien  to  whom  he  pleased,  without  license,(«)  for 
r  *-|  Q  T  ^^^  condition,  as  to  the  son,  *was  determined,  which  agrees  with  the 
L        J  resolution  of  the  principal  point  in  the  case  at  bar.     2.  It  was 
resolved,  that  the  statutes  of  13  Eliz.  cap.  10,  and  18  Eliz.  cap.  11,  concern- 
ing leases  made  by  Deans  and  Chapters,  Colleges,  and  other  ecclesiastical 
persons  are(o)  general  laws  whereof  the  court  ought  to  take  knowledge, 

{g)  Dyer,  308,  309,  pi.  75.    5  Co.  55,  b.     Moor,  97,  98, 
(A)  Co.  Lit.  215,  a.     Cro.  Jac.  390.     5  Co.  55,  b. 

(t)  3  Bulstr.  154 ;  Co.  Lit.  215,  a.  (;)  1  Rol.  Rep.  331 ;  Co.  Lit.  215,  a. 

{k)  See  Baron  and  Baronncss  de  Rutzen  v.  Lewis,  5  Ad.  &l  Ell.  277. 
(Z)  1  Rol.  Rep.  331;  Moor,  203. 

('«)  Dy.  152,  pi.  7;  Co.  Lit.  215,  a;  Cro.  Eliz.  757,  816. 
(n;  Quaere,  see  Lloyd  v.  Crispo,  5  Taunt.  249,  ^os<  in  nolo. 

(<i)  Antea76,  a;  2  Rol.  765;  Yelv.  lOG;  Doct.  pi.  337,  338;Noy,  124;  2  Brownl.208; 
Cro.  El,  816;  Moor,  593;  1  Leon.  306,  307. 


dumpor's   case. 


83 


although  they  are  not  found  by  the  jurors,  and  so  it  was  resolved  between 
Claypole  and  Carter,  in  a  writ  of  error  in  the  King's  Bench. 


"The   profession   have   always  won- 
dered at  Dumpor's  case,"  said  Mansfield, 
C,  J.,  in  Doe  v.  Bliss,  4  Taunt.  736, 
"  but  it  has  been  law  so  many  centuries 
that  we  cannot  now  reverse  it."  "  Though 
Dumpor's  case  always  struck  me  as  ex- 
traordinary," (said  Lord  Eldon  in  Brum- 
mel  V.  Macpherson,  14  Ves.  173,)  ''  it  is 
tlie  law  of  the  land."     Accordingly  it  is 
affirmed  by  many  subsequent  decisions, 
nay,  has  been  even  carried  further,  for 
it  is   held  that  whether  the  license  to 
assign  be  general,  as  in  the  principal 
case,  or  particular,  as  "  to  one  particular 
person  subject  to  the  performance  of  the 
covenants  in  the  original   lease ;"  still 
the  condition  is  gone,  and  the  assignee 
may  assign  without  license.     Brummel 
V.  Macpherson,  14  Ves.  173.     But  the 
license,  in  order  to  put  an  end  to  the 
condition,  must  be  such  a  license  as  is 
tiierein  contemplated,  for  where  tlie  con- 
dition is,  not  to  assign  ivilhout  license 
in  writing,  a  parol  license  is  no  dispen- 
sation.    Roe  V.  Harrison,  2  T.  R.  425; 
Macher  v.  Foundling  Hospital,  I  V.  Si, 
B.  191 ;  Richardson  v.  Evans,  3  Madd. 
218,  though  it  is  said  that  if  such  parol 
license  were  used  as   a   snare,  equity 
would  relieve.     Richardson  v.  Evans,  3 
Madd.  218.     It  seems,  too,  that  if  the 
condition  be  not  in  general  restraint  of 
assignment,  but  permit   the   lessee  to 
assign     in     one    particular    way,    ex. 
gr.    by   will ;    an    assignee,   to   whom 
the  lease  has  been   transferred  in  the 
permitted   way,  cannot  assign   in  any 
other  mode.     Lloyd  v.  Crispe,  5  Taunt. 
249.     "The  ground  of  Dumpor's  case" 
(says  Gibbs,  J.)  "  was  this:  the  proviso 
was  that  the  lessee  or  his  assigns  should 
not  alien  the  premises  to  any  person  or 
persons  without  the  special   license  of 
the  lessors;  the  lease  was  therefore  to 
be  void  if  any  assignment  was  made. 
And  there  the  court  was  of  opinion  that 
if  the  condition  was  once  dispensed  with, 
it  was  wholly  dispensed  with,  because 
the  provision  for  making  void  must  exist 
entire,  or  not  exist  at  all.     But  here  is 
an  exception  out  of  the  original  restric- 
tion to  alienate,  so  that  in  the  alienation 
by  will  made  by  the  lessee,  there  was 


nothing  to  license."  [Also  by  defea- 
sance properly  framed  to  revive  the  con- 
dition, a  license  to  assign  may  virtually 
be  limited  to  the  particular  assignment. 
See  3  Jarman's  Conv.  by  Sweet,  685. 
But  it  has  been  intimated  by  Gibbs,  C. 
J.  that  there  would  be  great  difficulty 
in  giving  that  effect  to  any  merely  re- 
strictive words  in  the  license.  Mason 
v.  Corder,  7  Taunt.  9.] 

Although,  when  such  a  condition  as 
that  in  Dumpor's  case  exists,  alienation 
without  license  operates  as  a  forfeiture 
of  the  term;  still,  if  the  lessor,  with 
knowledge  of  the  forfeiture,  receive  rent 
due  since  the  condition  broken,  such 
conduct  upon  his  part  operates  as  a 
waiver  of  his  right  to  take  advantage  of 
it.  [But  not  so  if  the  landlord  be  una- 
ware of  the  fact  of  the  forfeiture  at  the 
time  of  receiving  the  rent,  Roe  v.  Harri- 
son, 2  T.  R.  425;  Doe  v.  Birch,  1  M.  & 
W.  402,  unless,  perhaps,  where  it  ap- 
pears from  other  circumstances,  that  the 
rent  is  accepted  with  an  intention  of 
continuing  the  tenancy  notwithstanding 
any  forfeiture  that  may  have  occurred.] 
In  Goodright  v.  Davies,  Cowp.  803,  the 
lease  contained  a  covenant  not  to  under- 
let without  license;  and  a  power  of  re- 
entry to  the  lessor  in  case  of  non-ob- 
servance of  the  covenants;  the  lessee 
underlet  various  parts  of  the  premises, 
but  the  lessor  knew  of  it,  and  received 
rent  afterwards.  "  The  case,"  said  Lord 
Mansfield,  "  is  extremely  clear.  To 
construe  this  acceptance  of  rent  due 
since  the  condition  broken,  a  waiver  of 
the  forfeiture,  is  to  construe  it  according 
to  the  intention  of  the  parties.  Upon 
the  breach  of  the  condition  the  landlord 
had  a  right  to  enter.  He  had  full  notice 
of  the  breach,  but  does  not  take  advan- 
tage of  it,  but  accepts  rent  subsequently 
accrued.  That  shows  he  meant  that  the 
lease  should  continue.  Forfeitures  are 
not  favoured  in  law;  and  when  a  for- 
feiture is  once  waived,  the  court  will 
not  assist  it."  See  Browning  and  Bes- 
ton's  case,  Plowd.  133;  Roe  v.  Harri- 
son, 2  T.  R.  425;  Doe  d.  Gatehouse  v. 
Rees,  4  Bing.  N.  C.  384.  And  other 
acts  of  the  lessor,  besides  acceptance  of 


84 


SMITHS     LEADING     CASES. 


rent,  have  been  held  to  waive  a  forfeit- 
r*iqi    "'"^'  *when  they  show  an  inten- 
'-       -•    tion  on  his   part  that  the  lease 
should  continue.     Doe  v.  Rleux,  4  B.  &. 
C.  fi06;  see  Doe  v.   Birch,   1   Mee  &. 
Welsby,  408;    and  Doe  d.   Baron  and 
Baroness  de  Rutzen  v.  Lewis,  5  A.  & 
E.   277.     It  has   been    laid  down  that 
there  is  a  difference  in  this  respect  be- 
tween cases  where  the  lease  is  on  breach 
of  the  condition   to  be  void  and  those 
where  it  is  only  to  bo  voidable  on  the 
lessor's  re-entry.     In  the  latter  case,  ac- 
ceptance ot"  rent  operates  as  a  waiver  of 
the  landlord's  right  to  re-enter,  but  in 
the  former,  the  lease  becoming  void  im- 
mediately upon  the  breach  of  the  condi- 
tion, it  has  been  laid  down  by  great  au- 
thorities that  no  subsequent  acceptance 
of  rent  will  set  it  up  again.     This  dis- 
tinction is  laid  down  by  Lord  Coke,  1 
Inst.   214,  b.,  in  the  following  terms: 
"  Where  the  estate  or  lease  is  ipso  facto 
void  by  the  condition  or  limitation,  no 
acceptance  of  the  rent  after  can  make 
it  to  have  a  continuance,  otherwise  it  is 
of  a  lease  or  estate  voidable  by  entry." 
The    ^;ame    law  is    laid  down    equally 
strongly  in  Pennant's  case,  3  Rep.  64; 
in  Browning  and  Beston's  case  in  Plow- 
den ;    see   too  Finch   v.   Throckmorton, 
Cro.  PJIiz.  221 ;  Mulcarry  v.  Eyres,  Cro. 
Car.  5]  1  ;  Doe  d.  Simpson  v.  Butcher, 
Dougl.  51,  et  notas.    But  this  distinction 
was'^never  [before  7  «Si  8  V.  c.  76,  8  & 
9  V.  c.  106]  applied  to  any  save  leases 
for  years,  for  if  a  leaseybr  lives  contain 
an  express  condition  to  be  void  upon  the 
breach  of  any  covenant  by  the  lessee, 
still  it  is  in  contemplation  of  law  only 
voidable  by  re-entry  ;  for  it  is  a  princi- 
ple   tliat    an    estate   which    begins   by 
livery  can  only  be  determined  by  entry. 
Browning   and    Beston's    case,    Piovvd. 
133;  Doe  v.  Pritchard,  5  B.  &.  Ad.  765. 
[Since  the  statutes  referred  to,  estates 
for  life  may  commence  without  livery, 
and  to  such  estates,  the  reasoning  above 
seems  inapplicable.]     Even  in  the  case 
of  a  lease  for  years,  where  the  direction 
is  that  it  shall  become  void  on  breach  of 
the  condition ;  it  will  only  be  void  at  the 
option  of  the  lessor;  for  the  lessee  shall 
not  take  advantage  of  his  own  wrongful 
non-performance  of  his  contract,  in  order 
to  destroy  the  lease,  which  had  perhaps 
turned  out  a  disadvantageous  one.    Doe 
V.  Bancks,  4  B.  &  A.  401 ;  Read  v.  Farr, 
6  JM.  &.  S.  121 ;  and  see  Malins  v.  Free- 
man, 4  Bingh.  N.  C.  395,  [and   Hyde  v. 
Watts,  12  M.  &  W.  254,]  decided  on  a 


similar  principle ;  nor  can  any  third  per- 
son treat  it  as  void  unlil  the  landlord  has 
declared  his  option.  Roberts  v.  Davey, 
4  B.  &  Ad.  664.  In  that  case,  in  trespass 
quare  clausum  /regit,  the  defendant 
pleaded  a  license  from  a  previous 
owner  of  the  fee.  Replication,  that  the 
license  was,  on  breach  of  a  certain 
condition,  "<o  cease,  determine,  and 
become  utterly  void  and  of  no  effect," 
and  that  the  condition  had  been  broken 
and  the  license  thereupon  become 
void.  Demurrer,  and  judgment  for  the 
defendant  on  the  ground  that,  according 
to  Doe  V.  Bancks,  and  Kead  v.  Farr,  the 
license  was  determinable  only  at  the  op- 
tion of  one  who  had  not  signified  such 
option.  In  Doe  v.  Banks,  and  Read  v. 
Farr,  the  lease  was  by  the  terms  of  it, 
to  be  utterly  void  to  all  intents  and  pur- 
poses. But  in  Arnsby  v.  Woodward,  6 
B.  &  C.  519,  where,  in  addition  to  the 
words  rendering  the  lease  void,  it  was 
stated  "that  it  should  be  lawful  for  the 
lessor  to  re-enter  and  expel  the  tenant," 
tne  court  held  that  the  addition  of  those 
words  showed,  that  it  was  the  intent  of 
the  parties  that  the  lease  should  be  only 
voidable  by  re-entry  ;  and  consequently, 
that  the  landlord  had,  by  a  subsequent 
receipt  of  rent,  waived  the  forfeiture; 
and  in  Doe  v.  Birch,  1  Mee.  &,  Welsby, 
403,  a  clause  that,  on  the  breach  of  cer- 
tain stipulations,  "it  should  be  lawful 
for  the  lessor  to  re-take  possession  of 
the  premises,  and  that  the  agreement 
should  be  null  and  void,"  was  held  to 
have  the  same  effect,  and  to  admit  the 
question  of  waiver.  See  also  Dakin  v. 
Cope,  2  Russ.  170.  This  shows  with 
what  strictness  the  courts  will  read  such 
a  proviso  in  order  to  prevent  an  absolute 
forfeiture.  Indeed,  in  Arnsby  v.  Wood- 
ward, Lord  Tenterden  said,  that,  sup- 
posing the  proviso  had  been  in  the  very 
same  words  as  in  Read  v.  Farr,  and  Doe 
V.  Bancks,  he  should  have  still  thought 
that  a  receipt  of  rent  by  the  landlord 
would  be  an  admission,  that  the  lease 
was  subsisting  at  the  time  when  that 
rent  became  due,  and  that  he  could  not 
afterwards  insist  upon  a  forfeiture  pre- 
viously committed ;  and  his  lordship 
said,  that  to  hold  the  contrary  would  be 
productive  of  great  injustice,  for  it  would 
enable  a  landlord  to  eject  a  tenant,  after 
he  had  given  him  reason  to  suppose  that 
the  forfeiture  was  waived,  and  after  the 
latter  had,  on  that  supposition,  expended 
his  money  in  improving  the  premises. 
We  must  therefore  look  on  this  distinc- 


dumpor's    case. 


85 


tion  between  the  possibility  of  waiving 
the  breach  of  a  condition  which  is  to  ren- 
der the  lease  void,  and  that  of  one  which 
is  to  render  it  voidable,  as  shaken  ;  and 
indeed  in    Roberts  v.   Davey,  4   B.  «Si 

r  *20 1  ^^^^-  ^^^'  *^'^^  ^^'  ^o'^^^^t  argued 
■■        J  that  it  had  been  virtually  over- 
ruled.  Still  there  is  no  express  decision 
to  that  effect,  unless  Roberts  v.  Davey 
be  so  considered ;  nor  does  it  appear  a 
necessary  consequence,  that,  because  the 
tenant  is  prevented  from  taking  advan- 
tage of  his  own  wrong  by  insisting  that 
the  lease  is  absolutely  void,  it  shall  there- 
fore be  taken  to  be  only  voidable  when 
that  construction  makes  /or  the  tenant 
and  against   the  landlord  ;    and,   when 
we  consider  the  high  authorities  addu- 
cible   in   support  of  the   distinction  in 
question,  and  their  analogy  to  the  cases 
in  which  it  has  been  determined  that  no 
acceptance  of  rent  by  a  remainderman 
will  confirm  a  lease  void  as  against  him, 
Simson  v.  Butcher,  Dougl.  51,  et  notas, 
Jenkins  v.  Church,  Cowp.  483,  we  may 
conjecture  that  it  will  not  be  quietly  al- 
lowed to  become  obsolete  ;  and  that  fur- 
ther controversy  may  arise    upon   the 
question,  whether  the  landlord,  in  case 
of  a  stipulation  that  the  lease  shall  be- 
come void  on  breach  of  a  condition  which 
has  been  broken,  is  precluded  by  a  sub- 
sequent receipt  of  rent  from  treating  the 
lease  as  determined.     On  that  question 
the  words  of  Lord  Coke   are  express, 
that  "  where  the  lease  is  ipso  facto  void 
by  the  condition  no  acceptance  of  rent 
after  can  make  it  to  have  a  continu- 
ance,''^ 1  Inst.  214;  and  see  also  the 
other  authorities  above  cited.     On  the 
other  hand,  the  case  of  Roberts  v.  Davey 
is  extremely  strong.     There,  the  person 
seeking  to  treat  the  license  as  void  was 
not  the  licensee  nor  any  one  connected 
with  him  in  interest;  he  was  not  taking 
advantage  of  any  wrong  done  by  him- 
self; nor  was  he  enabling  the  licensee 
to  do  so,  which  differs  the  case  from 
Read  v.  Farr,  where  the  defendant,  who 
sought  to  take  advantage  of  the  tenant's 
wrongful  act,  was  connected  with  him 
in  interest;  so  that,  (unless  there  be  a 
difference  between  the  right  of  a  land- 
lord to  consider  the  lease  absolutely  void 
before  any  expression  of  his  election, 
and  that  of  a  third   party  to  do  so,)  Ro- 
berts V.  Davey  is  no  doubt  an  authority 
that  it  is  only  voidable,  in  point  of  law, 
and  with  relation  to  all  persons,  includ- 
ing the  landlord.     And  if  the  landlord 
as  well  as  the  tenant  must  treat  it  as 


voidable,  no  doubt  the  receipt  of  rent 
may  operate  as  a  waiver  of  the  forfeiture. 
Perhaps  the  true  rule  may  be  ultimately 
held  to  be,  that  the  effect  of  the  proviso 
rendering  the  lease  void  is  only  to  dis- 
pense with  entry,  and  to  substitute  for 
it  any  formal  expression  of  the  lessor's 
election  to  avoid  the  lease.  [See  Bowser 
V.  Colby,  1  Hare,  109].  On  the  question 
what  is  a  sufficient  entry  where  entry  is 
requisite,  see  [Doe  d.  Hanley  v.  Wood, 
2  B.  &,  Aid.  724];  Doe  v.  Pritchard,  5 
B.  &  Ad.  765 ;  Doe  v.  Williams,  ibid. 
783. 

Although  acceptance  of  rent  falling 
due  after  a  forfeiture  operates  as  a 
waiver,  yet  acceptance  after  forfeiture 
of  rent  which  became  due  before  the  for- 
feiture will  not  do  so.  Nor  does  the 
lessor  waive  his  right  to  recover  such 
rent  in  an  action,  although  the  words  of 
the  condition  may  be  that  the  lessor  shall 
have  the  premises  again,  "  as  if  the  in- 
denture of  lease  had  never  been  made. 
The  proper  construction  of  such  a  pro- 
viso being,  that  from  the  time  of  re-entry 
the  lessor  should  have  the  lease  again,  as 
if  the  indenture  had  never  been  made." 
Hartshorne  v.  Watson,  4  Bing.  N.  C. 
178.  [It  is  conceived,  that  the  mere  re- 
ceipt of  subsequent  rent  does  not,  of  its 
own  proper  force,  operate  as  a  waiver  of 
the  forfeiture.  It  is  only  evidence  of  the 
election  of  the  lessor  lo  retain  the  rever- 
sion *and  its  incidents,  instead  ^  gg^  -, 
of  the  possession  of  the  land  ;    '-  -' 

and,  as  an  election  once  made  and  ex- 
pressed cannot  be  retracted  {quod  semel 
placuit  in  electionibus  amplius  displi- 
cere  non  'potest,  Co.  Litt.  146  a),  the  re- 
ceipt of  subsequent  rent  as  such,  without 
more,  binds  the  landlord  by  proving  an 
election.  But  rent  to  the  amount  of 
that  reserved  in  the  lease  may  be  re- 
ceived under  circumstances,  showing  it 
to  be  paid  and  accepted  merely  as  com- 
pensation for  use  of  the  land,  and  not 
with  the  intention  of  setting  up  the 
lease  ;  nay,  a  contrary  intention  may  be 
expressed  at  the  time  of  its  receipt.  A 
receipt  of  rent  under  such  circumstances 
would  not,  it  seems,  amount  to  a  waiver 
of  the  forfeiture.  See  Doe  v.  Batten, 
Cowp.  243.  It  is  not  supposed  that  the 
naked  question  of  intention  to  waive 
would  in  such  a  case  be  left  to  the  jury. 
The  question  should  perhaps  be,  Did  the 
lessor  receive  the  rent  eo  nomine  as  rent 
due  under  the  lease  ?  See  per  Parke,  J,, 
Doe  V.  Pritchard,  5  B.  &  Ad.  770.  A 
receipt  of  rent  after  the  lessor  has  by 


86 


smith's   leading  cases. 


some  unequivocal  act,  such  as  bringing 
ejectment,  expressed  his  election  to  treat 
the  lease  as  void,  cannot  operate  to  re- 
vive it.  Jones  v.  Carter,  15  M.  &.  W. 
718.] 

There  is  some  distinction,  in  respect 
of  waiver,  between  a  condition  against 
underletting  and  one  against  assign- 
ment ;  for  in  the  former  case,  if  the 
lessee  underlet,  and  the  lessor  accept 
subsequently  accruing  rent,  so  as  to 
waive  the  forfeiture,  still,  if  the  lessee, 
after  the  expiration  of  that  term,  make 
another  underlease,  the  lessor  may  re- 
enter, Doe  V.  Bliss,  4  Taunt.  735 ;  but 
if  the  lessor  were,  by  acceptance  of  rent, 
to  waive  the  forfeiture  incurred  by  the 
lessee's  assign>ment,  there  would  be  an 
end  of  the  condition  altogether,  exactly 
as  there  would  be  if  he  had  licensed  it. 
Lloyd  V.  Crispe,  5  Taunt.  249;  1  Wm. 
Saund.  288  b.  n.  x.  See  5  B.  &  Ad. 
781.  And  it  has  been  thought  that, 
even  if  the  lessor  were  expressly  to  li- 
cense the  lessee  to  underlet,  still  the 
lessee  might  incur  a  forfeiture  by  mak- 
ing a  fresh  underlease  after  the  expira- 
tion of  that  licensed  ;  for  that  the  license 
would  in  that  case  only  operate  as  a  sus- 
pension of  the  condition,  and  a  condition 
may  be  suspended,  though  it  cannot  be 
apportioned.     1  Wm.  Saund.  288,  n.  s. 

With  respect  to  what  will  amount  to 
a  breach  of  such  conditions — When  the 
condition  was  "not  to  assign,  transfer, 
set  over,  or  otherwise  do  and  put  away 
the  indenture  of  demise  or  the  premises 
thereby  demised,  or  any  part  thereof," 
an  underlease  was  held  no  breach  of  it. 
Crusoe  v.  Bugby,  3  Wils,  234;  [so,  of 
an  equitable  mortgage,  Exp.  Drake,  1 
M.  D.  &,  De.  G.  539 ;  Doe  v.  Hogg,  4  D. 
&.  R.,  226] ;  but  a  condition  not  to  "  set, 
let,  or  assign  over  the  demised  premises, 
or  any  part  thereof,"  comprehends  under- 
leases ;  Roe  V.  Harrison,  3  T.  R.  425 ; 
Roe  V.  Sales,  1  M.  &  S.  297;  and  a 
covenant  not  to  "let,  set,  or  demise  for 
all  or  any  part  of  the  term,"  assign- 
ments. Greenaway  v.  Adams,  12  Ves. 
395.  An  assignment  by  operation  of 
law  is  no  breach  of  a  condition  not  to 
assign,  ex.  gr.  if  the  lessee  become  bank- 
r  *oi  1  i"upt)  or  the  lease  *be  taken  in 
L  -■  execution,  Philpot  v.  Hoare,  2 
Atk.  219;  Doe  v.  Bevan,  3  M.  &  S. 
353  ;  Doe  v.  Carter,  8  T.  R.  57,  unless 
sucii  an  event  be  brought  about  by  the 
fraudulent  procurement  of  the  lessee 
himself  Doe  v.  Carter,  8  T.  R.  300. 
See  Doe  v.  Hawkes,  2  East,  481.     But 


the  lessor  may,  if  he  please,  by  the  in- 
sertion of  express  words  for  that  purpose, 
[provided  they  be  clear  and  distinct,  for 
the  court  will  not  be  astute  to  find  them 
a  meaning.  Doe  d.  Wyndham  v.  Carew, 
Q.  B.  317,]  render  even  such  an  assign- 
ment a  forfeiture.  Roe  v.  Galliers,  2  T. 
R.  133;  Davis  V.  Eyton,  7  Bing.  1.54. 
See  Doe  v.  Hawkes,  2  East,  481 ;  Doe 
V.  Clarke,  8  East,  185;  Doe  v.  David,  5 
Tyrwh.  125;  Cooper  v.  Wyatt,5  Madd. 
482;  Yarmold  v.  Moorhouse,  1  R.  & 
Myl.  364;  R.  v.  Robinson,  Wightw. 
386.  And  the  landlord  re-entering  for 
such  a  forfeiture  is  entitled  to  the  em- 
blements and  fixtures.  Davis  v.  Eyton. 
Marriage  does  not  operate  as  a  forfeiture. 
Anon.  Moor,  21.  Whether  a  devise  be 
a  breach  of  the  condition  not  to  assign, 
has  been  disputed.  Fox  v.  Swann, 
Styles,  483;  Dumpor  v.  Symons,  Cro. 
Eliz.816;  Berry  V.  Taunt,  ib.  331.  And 
see  some  observations  in  Doe  v.  Bevan, 
3  M.  «Sz,  S.  353.  It  has  been  thought 
that  if  executors  and  administrators  be 
not  expressly  named  in  the  condition,  an 
assignment  by  them  would  not  create  a 
forfeiture.  Anon.  Moor,  21;  Seers  v. 
Hind,  1  Ves.  jun.  295;  but  the  mention 
of  assigns  includes  administrators,  for 
t!".ey  are  assigns  in  law.  Moor's  case, 
Cro.  Eliz.  26.  See  Cox  v.  Browne,  Cha. 
Rep.  170.  [So  are  executors,  Wollas- 
ton  v.  Hakewill,  3  Scott,  N.  R.  593.] 

A  general  condition  not  to  assign,  in- 
serted in  a  lease,  to  a  man,  "anc/  Ids  as- 
signs," was  considered  in  Strickley  v. 
Butler,  Hob.  170,  to  be  void  for  repug- 
nancy, though  it  was  admitted  that  a 
condition  against  assignment  to  a  parti- 
cular person  would,  even  in  such  case, 
be  good.  But  the  former  part  of  the 
above  doctrine  has  been  denied.  Dennis 
V.  Loring,  Hard.  427  ;  and  in  Wetherall 
V.  Geering,  12  Ves.  511,  the  Master  of 
the  Rolls  said,  that  assigns  would  in 
in  such  a  case  be  taken  to  mean  such 
assigns  as  the  lessee  might  lawfully 
have,  viz.  by  license,  and  that  there  was 
no  repugnancy.  [It  is  laid  down,  see 
Sheppard's  Touchstone,  131 ;  Co.  Lit. 
223  a,  that  in  an  assignment  of  the  en- 
tire interest  in  a  term  already  created,  a 
condition  against  assignment  is  void.] 

A  court  of  equity  will  not  relieve 
against  the  forfeiture  occasioned  by 
breach  of  a  covenant  not  to  assign,  for  it 
could  not  place  the  parties  in  statu  quo  ; 
and  besides,  such  a  forfeiture  must  al- 
ways be  incurred  by  the  wilful  act  of 
the  lessee,  and  cannot  be  the  result  of 


dumpor'scase,  87 

accident,  which  seems  to  be  the  true  Lord  Ranelagh,  3  V.  &  B.  31 ;  Davis  v. 

foundation   on    which    equity   supports  Moreton,  2Cha.  Ca.  127;  see  Maddock's 

itself  when  relieving  against  forfeitures.  Cha.  Prac.  2nd  edit.  vol.  1,  p.  31. 
Hill  V.  Barclay,  18  Ves.  63 ;  Lovat  v. 


In  Dickey  v.  M'Cullougli,  2  W.  &  S.  100,  the  Supreme  Court  of  Penn- 
sylvania decided  in  accordance  with  Dumpor's  case,  that  when  a  party  once 
dispensed  with  a  condition,  he  could  not  enter  for  any  subsequent  breach  of 
the  same  condition;  though  perhaps  such  breach  might  aflford  ground  for  an 
action  of  covenant,  based  on  the  condition.  The  doctrine  of  this  case  was  also 
recognized  by  the  Supreme  Court  of  New  York,  inBleecker  v.  Smith,  13  Wend. 
530 ;  22  Id.  201 ;  where  it  was  however  decided,  that  it  only  applied  to  nega- 
tive conditions,  when  the  breach  could  be  consummated  by  a  single  act,  and 
not  to  those  of  an  affirmative  character,  where  the  default  might  extend  con- 
tinuously throughout  a  long  period  of  time.  The  opinion  was  also  expressed, 
that  in  order  to  destroy  a  condition,  there  must  be  an  express  waiver,  by  a 
license  dispensing  with  its  performance  ;  and,  that  a  mere  waiver  of  the  for- 
feiture, by  acceptance  of  rent,  although  after  breach  of  a  condition  not  to 
assign,  would  not  prevent  the  grantor  from  availing  himself  of  another  for- 
feiture, subsequently  incurred.  No  doubt  can  be  entertained  that  such  is 
the  law,  where  the  nature  of  the  obligation  which  the  condition  imposes  is 
clearly  continuous,  as  where  it  is  for  the  performance  of  a  continuing  cove- 
nant. In  such  cases  a  receipt  of  rent,  or  any  other  act  affirming  the  tenancy, 
will  merely  waive  the  forfeiture  antecedently  incurred,  but  will  not  relieve 
the  tenant  from  the  effects  of  a  subsequent  failure  of  performance  ;  and  even 
where  the  language  and  conduct  of  the  landlord  have  amounted  to  a  license 
of  the  breach,  it  will  at  the  utmost  only  bind  him,  and  will  not  enure  as  an 
estoppel  upon  a  subsequent  assignee  of  the  reversion ;  Doe  v.  Grladwin,  6  Q. 
B.  953. 

In  the  subsequent  case  of  Dakin  v.  Williams,  17  Wend.  447,  the  autho- 
rity of  Dumpor's  case  was  again  admitted,  but  it  was  held  not  to  apply  to 
covenants  uncoupled  with  conditions,  which  were  said  to  be  always  suscep- 
tible of  apportionment  by  the  act  of  the  parties. 

Conditions  in  deed  are  so  entirely  insusceptible  of  apportionment,  that 
they  cannot  be  apportioned  even  to  meet  the  exigencies  arising  from  the 
division  of  the  estate  to  which  they  are  attached,  and  that  where  part  of  the 
land  subject  to  a  condition  is  assigned,  the  grantor  may  enter  if  any  portion 
of  the  condition  remain  unperformed,  notwithstanding  a  proportional  per- 
formance by  the  assignee.  Thus,  it  was  held  in  Van  Rensselaer  v.  Jewett, 
5  Denio,  121,  that  where  a  lease  was  made  with  a  right  of  re-entry,  in  case 
of  the  non-payment  of  the  rent,  the  whole  rent  might  be  demanded  from  a  pur- 
chaser of  part  of  the  land,  and  an  entry  made  upon  his  failure  to  pay  it.  The 
same  insusceptibility  of  apportionment,  prevents  an  assignee  of  the  reversion 
in  part  of  land  granted  for  life  or  years,  from  availing  himself  of  the  breach 
of  a  condition  contained  in  the  grant;  Coke,  Lit.  215,  a..  Van  Rensselaer 
V.  Jewett;   but  it  does  not  apply  in  the  case  of  an  assignee  of  part  of  the 


88  SMITn'SLEADINGCASES. 

reversion  in  the  whole  of  the  land,  for  he  is  entitled  to  the  benefit  of  the 
whole  condition.     Coke,  Lit.  lb.  Wright  v.  Burroughes,  3  C.  B.  684. 

It  seems  now  well  established,  that  where  an  estate  in  land  has  been  for- 
feited by  the  non-performance  of  a  condition  at  the  day,  the  right  to  enforce 
the  forfeiture  will  be  waived  by  accepting  a  performance  at  a  subsequent 
period.  Chalker  v.  Chalker,  1  Conn.  79.  This  however,  is  an  application 
of  the  doctrines  of  equity,  and  an  innovation  on  the  rule  of  the  common  law, 
which  at  the  utmost  allowed  a  subsequent  payment  to  operate  as  a  discharge 
of  the  debt,  and  not  of  the  forfeiture  incurred  by  a  failure  to  pay  at  the  day. 
Coke  Lit.  211,  a.  But  the  forfeiture  will  be  waived,  both  at  law  and  in  equity, 
by  the  acceptance  of  rent,  accruing  subsequently,  or  by  any  other  act  recognis- 
ing the  continuance  of  the  estate.  Newman  v.  Rutter,  8  Watts,  51.  Thus  an 
attempt  to  levy  the  rent  in  arrear  by  distress,  will  operate  as  an  aflSrmance  of 
the  tenant's  interest,  even  when  the  distress  is  insufficient,  for  the  right  to  dis- 
train can  only  be  based  upon  the  existence  of  the  relation  of  landlord  and 
tenant.  Coke  Lit.  211,  b.  Jackson  v.  Sheldon,  5  Cowen,  448.  The  same 
principle  was  applied  in  Coon  v.  Brickett,  2  New  Hampshire,  163,  although 
the  lessor  had  actually  entered  for  the  breach  of  the  condition,  before  the  accep- 
tance of  rent,  which  was  set  up  as  a  waiver.  It  was  said  that  where  the 
words  of  forfeiture  are  absolute,  and  the  lease  wholly  avoided,  it  cannot  be 
made  good  by  a  subsequent  act,  but  that  the  rule  is  different  when  the  estate 
is  merely  voidable.  In  Kenrick  v.  Smick,  7  W.  &  S.  41,  the  Supreme  Court 
of  Pennsylvania  also  expressed  the  opinion,  that  when  a  lease  for  years  is 
conditioned  to  be  absolutely  void  upon  the  breach  of  a  condition,  no  sub- 
sequent recognition  of  the  tenancy  can  set  it  up.  It  is,  however,  well 
established  under  the  more  recent  English  authorities,  whatever  may  have 
been  the  rule  at  an  earlier  period,  that  even  when  a  condition  is  expressed 
in  terms  of  absolute  avoidance  and  attached  to  a  lease  for  years,  it  only  ren- 
ders the  lease  voidable  at  the  option  of  the  party  entitled  to  enforce  the  for- 
feiture ;  the  difference  between  the  effect  of  such  a  condition  and  one  of 
re-entry,  being  merely  that  it  entitles  the  lessor  to  manifest  his  intention  to 
determine  the  lease  in  any  manner  which  he  may  think  fit,  instead  of  con- 
fining him  to  an  entry  made  in  fact,  or  confessed  by  an  ejectment.  Jones 
V.  Carter,  15  M.  &  W.  718.  This  view  of  the  law  was  adopted  in  Clark  v. 
Jones,  1  Denio,  517,  where  it  was  said  that  it  made  no  difference,  whether  the 
condition  merely  rendered  the  lease  voidable  upon  breach,  or  were  of  com- 
plete avoidance,  nor  whether  it  were  attached  to  a  lease  for  life  or  merely 
for  years.  In  either  case,  it  was  held  that  the  landlord  by  affirming,  might 
continue  the  tenancy,  and  that  the  tenant  could  not  set  up  his  own  wrong, 
for  the  purpose  of  getting  rid  of  his  liabilities. 

Even  if  the  distinction  taken  in  Coon  v.  Brickett,  between  estates  condi- 
tioned to  be  absolutely  void,  and  those  which  are  merely  voidable  were 
sound,  the  facts  of  the  case  were  not  within  it.  For  whatever  difference 
may  exist  between  estates  void  and  voidable,  must  disappear  upon  entry 
made  with  an  intent  of  avoidance,  and  no  interest  which  has  once  been 
absolutely  avoided,  can  be  set  up  again  at  law  by  the  acts  of  the  parties. 
Whether,  therefore,  the  terras  of  the  condition  make  the  lease  void  or  merely 
voidable,  it  will  become  absolutely  void  as  soon  as  the  party  entitled  to  take 
advantaire  of  the  forfeiture,  manifests  his  intention  to  do  so  in  the  manner 
provided  by  law,  and  although  the  subsequent  payment  and  acceptance  of 


dumpor'scase.  89 

rent  may  create  a  new  tenancy,  it  will  not  renew  that  which  existed  origi- 
nally. Thus  it  was  held  in  Doe  v.  Meux,  1  C.  &  P.  848,  that  the  receipt 
of  rent  by  the  landlord,  after  an  ejectment  brought  against  the  tenant  for  a 
forfeiture,  would  not  operate  as  a  bar  to  the  action,  because  the  entry  ad- 
mitted by  the  consent  rule,  was  to  be  regarded  as  an  absolute  avoidance  of 
the  lease,  after  which  no  act  of  either  party  could  render  it  valid.  The  same 
effect  will  follow  when  the  condition  is  one  of  absolute  avoidance,  from  the 
service  of  a  declaration  in  ejectment,  or  any  other  act  showing  an  intention 
to  enforce  the  forfeiture,  which  will  then  become  irrevocably  binding  at  law, 
both  on  the  lessor  and  lessee ;  Jones  v.  Carter ;  although  relief  may  still 
be  afforded  to  the  latter  in  equity,  when  the  breach  of  condition  is  one  which 
admits  of  compensation.  Walker  v.  Walker,  2  Conn.  299.  Baxter  v.  Lan- 
sing, 7  Page,  350.  It  was  notwithstanding,  decided  in  Atkins  v.  Chilson, 
11  Metcalf,  112,  that  when  the  forfeiture  has  been  incurred  through  the 
mistake  of  the  tenant,  in  tendering  the  rent  before,  instead  of  on  the  day, 
a  writ  of  entry  brought  by  the  landlord,  will  be  stayed  by  an  order  of 
court,  on  the  payment  of  the  rent,  with  interest  and  costs,  under  the  course 
of  practice  now  adopted  by  the  courts  of  common  law,  and  without  a  recourse 
to  the  assistance  of  chancery. 

It  was  held  in  Jackson  v.  Allen,  3  Cowen,  120,  that  to  make  the  receipt 
of  rent  amount  to  waiver  of  a  forfeiture,  the  rent  must  not  only  be  received, 
but  have  accrued  subsequently  to  the  time  of  condition  broken,  otherwise 
the  transaction  amounts  to  no  more  than  would  the  payment  of  any  other 
debt.  It  was  further  held,  that  where  the  breach  is  of  a  continuous  cha- 
racter, payment  and  acceptance  of  rent  after  it  happens,  will  only  waive 
the  forfeiture  previously  incurred;  and  that  a  subsequent  re-entry,  on  the 
ground  of  the  continuance  of  breach,  will  consequently  be  valid.  In  the 
cases  of  Jackson  v.  Brownson  and  Jackson  v.  Schietz,  7  Johnson,  227 ; 
18  Johnson,  174,  the  further  distinction  was  taken,  that  no  acts  of  the 
grantor  can  amount  to  a  waiver  of  a  forfeiture,  unless  he  is  cognisant  of  its 
existence.  And  in  the  latter  case,  the  knowledge  of  the  agent  appointed  to 
collect  the  rent  was  held  sufficient,  unless  shared  by  the  principal. 

It  was  also  determined  in  Jackson  v.  Schutz,  that  where  there  was  a  con- 
veyance in  fee,  by  deed  conditioned  that  the  grantee  should  not  alien  the 
land,  without  the  license  of  the  grantor,  nor  without  offering  him  the  pre- 
emption, and  paying  one-tenth  of  the  purchase  money,  if  such  license  were 
obtained,  the  condition  was  valid,  and  gave  a  ri^ht  of  entry  when  broken  by 
alienation,  without  offer  of  pre-emption,  or  payment  of  one-tenth  of  the  pro- 
duce of  the  sale,  and  without  license  to  alien.  But  the  court  seem  to  have 
doubted  whether  that  part  of  the  condition,  which  was  in  restraint  of  the 
right  to  alien  without  license,  was  good,  and  whether  had  it  stood  alone,  any 
remedy  could  have  been  afforded  for  the  breach.  It  was  said,  that  a  condi- 
tion not  to  alien  at  all,  would  be  clearly  void,  although  a  condition  not  to 
alien  to  a  particular  person,  or  class  of  persons,  might  be  valid.  A  similar 
decision  was  made  in  Jackson  v.  Groat,  7  Cowen,  285.  Such  restrictions 
are  strictly  construed,  and  a  condition  that  a  lessee  shall  not  assign,  has  been 
held  not  to  extend  to  the  grant  of  a  less  estate  operating  as  an  underlease, 
and  not  as  an  assignment,  nor  to  a  sale  by  legal  process,  which,  unless  col- 
lusive, is  the  act  of  the  law,  and  not  of  the  tenant ;  Jackson  v.  Silvernail, 
12  Johnson,  278  ;  Jackson  v.  Kip,  3  Wend.  231.     But  there  is  no  reason 


90  SMITH'sLEADING     CASES. 

to  doubt,  that  a  condition  may  be  so  worded  as  to  avoid  the  estate,  either  on 
the  event  of  an  underlease  by  the  tenant,  or  of  a  sale  under  an  execution. 

It  may  be  doubted  whether  the  court  did  not  go  too  far  in  the  cases  above 
cited,  in  support  of  a  condition  which  imposed  a  permanent  restraint  upon 
the  alienation  of  property,  perhaps  injurious  to  the  interests  of  the  public, 
and  certainly  more  disadvantageous  to  the  tenant  than  beneficial  to  the  land- 
lord. A  condition  will  be  contrary  to  the  policy  of  the  law,  and  therefore 
void,  whenever  it  materially  interferes  with  the  capacity  of  property,  to  pass 
from  hand  to  hand,  which  is  one  of  the  incidents  inseparably  attached  to  it 
for  the  public  good,  and  therefore  beyond  the  control  of  individual  owners ; 
and  in  Schermerhorn  v.  Negus,  1  Denio,  448,  a  proviso  attached  to  a  devise 
in  fee,  that  the  devisees  should  not  alien  save  to  each  other,  and  to  their 
descendants,  was  held  repugnant  to  the  estate  devised  and  void.  A  condi- 
tion restraining  the  power  of  alienation,  may  notwithstanding  be  good, 
when  attached  to  an  estate  for  life  or  years,  for  in  such  cases  the  limited 
nature  of  the  interest  in  question,  diminishes  the  inconvenience  of  the  restric- 
tion, and  removes  the  disability  attached  to  every  limitation,  which  tends 
towards  a  perpetuity.  And  restraints  on  the  power  of  alienation  are  good, 
even  in  the  case  of  estates  in  fee,  when  their  operation  does  not  go  beyond 
the  limits  within  which  the  law  of  perpetuities,  permits  the  caprice  or  dis- 
cretion of  the  donor  of  property,  to  control  its  incidents  or  direction  after  it 
has  passed  from  his  hands.  The  law  was  so  held  in  McWilliams  v.  Nisby, 
2  S.  &  R.  507,  where  it  was  decided,  that  although  a  perpetual  restraint 
attempted  to  be  imposed  by  the  grantor,  upon  the  alienation  of  land  conveyed 
by  him  in  fee,  was  not  binding,  a  partial  restraint,  whether  against  aliening 
to  a  particular  person,  or  for  a  definite  time,  was  good,  if  the  duration  of  the 
restraint  did  not  extend  beyond  a  life  or  lives  in  being.  In  the  case  before 
the  court,  the  restraint  was  imposed  in  a  conveyance  passing  an  estate  in  fee, 
subject,  among  others,  to  the  following  restrictions  :  "  that  the  grantee  is 
not  to  sell  the  land  during  the  life  of  the  grantor ;  and  if  the  grantee  should 
die  before  the  grantor,  then  he  is  to  leave  the  lands  to  his  wife,  or  the  law- 
ful issue  of  her  body  ;  but  if  the  grantor  should  die  before  the  grantee,  then 
the  grantee  to  be  at  liberty  to  sell  and  bequeath  as  he  chooses."  This 
clause  was  held  to  create  neither  a  condition,  nor  a  conditional  limitation, 
and  yet  so  to  qualify  the  estate  of  the  grantee,  as  to  deprive  him  of  the  right 
to  sell  during  the  life  of  the  grantor.  The  grantee  made  a  sale  during  the 
life  of  the  grantor,  whom  he  survived,  and  after  his  death  his  children,  heirs 
at  law  of  the  grantor,  brought  their  ejectment  against  the  vendees.  The 
court,  while  holding  that  there  was  no  condition,  and  yet  that  the  sale  was 
invalid,  also  determined,  that  as  the  father  of  the  plaintiffs  acquired  a  full 
right  to  pass  the  property  in  question,  before  his  death,  by  the  prior  decease 
of  the  grantor,  his  children  were  estopped  by  his  deed,  though  made  when 
be  had  no  such  right,  and  consequently  that  they  could  not  recover  against 
the  defendants  who  claimed  under  it. 

It  would  appear  that  the  restraining  clause  in  the  case  just  cited,  if 
valid  at  all,  could  only  have  been  so  as  a  condition,  since  the  operative 
words  in  the  deed  passed  the  whole  estate,  legal  and  equitable,  to  the 
grantee.  The  subsequent  case  of  Fisher  v.  Taylor,  2  Rawle,  33,  affords, 
however,  an  instance  of  a  mere  restraint  upon  the  enjoyment  of  property, 
not  effected  by  means  of  a  condition,  but  which  may  be  cited  with  the  pre- 


D  U  M  P  0  R '  S  .  C  A  S  E.  91 

vious  decision,  to  indicate  how  far  the  law  of  Pennsylvania  will  suffer  such 
restraints  to  extend.  Money  was  devised  to  executors  for  the  purchase  of 
land,  "  in  trust  for  S.  T.,  the  said  S.  T.  to  have  the  rents,  issues,  and  profits 
thereof,  but  the  same  not  to  be  liable  to  any  debts  which  may  be  contracted 
by  him."  As  the  legal  title  vested  in  the  executors,  and  the  trust  was 
purely  executory,  it  would  seem  that  the  restraint  was  valid  although  not 
enforced  by  a  condition,  unless  contrary  to  the  policy  of  the  law.  The  court 
decided  in  favour  of  its  validity,  and  that  neither  the  legal  estate  of  the  exe- 
cutors, nor  the  equitable  interest  of  S.  T.  could  be  taken  in  execution  by  the 
creditors  of  the  latter.  As  he  might  undoubtedly  have  aliened  his  interest  un- 
der the  will  to  his  creditors,  or  to  any  body  else,  the  case  presents  the  anomaly 
of  an  estate  susceptible  of  alienation  for  the  benefit  of  the  owner,  but  not  for 
that  of  his  creditors.  The  judgment  in  this  case  is  opposed  by  the  authority 
of  the  English  decisions  on  the  same  subject,  which  were  recognised  as  law  by 
the  Supreme  Court  of  Pennsylvania,  in  Hammersley  v.  Smith,  4  Wharton, 
128.  Fisher  v.  Taylor  has  however  been  since  fully  sustained  as  part  of  the 
law  in  that  state,  by  the  determination  of  the  same  tribunal,  in  Vaux  v.  Parke, 
7  W.  &  S.  19,  where  it  was  decided,  that  the  expressed  intent  of  the  testator, 
would  suffice  to  exempt  an  equitable  estate  given  by  his  will,  from  alienation 
or  execution.  The  introduction  of  such  limitations  as  those  upheld  in 
Fisher  v.  Taylor  and  Vaux  v.  Parke,  must  be  regarded  as  an  innovation 
wholly  unsustained  by  anything  in  the  previous  law  of  conditions.  For 
when  a  condition,  whether  standing  alone,  or  coupled  with  a  limitation  has 
once  taken  effect,  its  power  is  at  an  end,  and  the  estate  vests  in  the  grantor 
or  remainderman  free  from  all  qualification.  But  to  allow  a  donor  to  impose 
a  restraint  on  the  alienation  of  a  vested  interest,  co-extensive  with  its  dura- 
tion, is  to  permit  the  creation  of  a  right  of  property  apart  from  its  incidents, 
and  to  authorise  the  donee  to  hold  the  gift  for  the  purposes  of  enjoyment, 
freed  from  the  duty  of  applying  it  in  discharge  of  his  obligations.  This  can- 
not be  done  in  England,  either  at  law  or  in  equity,  nor  as  it  would  seem  in 
most  of  the  states  of  this  country.  Thus  where  the  devise  was  of  the  use  of 
a  farm,  not  subject  to  conveyance  or  attachment,  the  restriction  was  held  to 
be  repugnant  to  the  estate,  and  therefore  void.  Blackstone  Bank  v.  Davis, 
21  Pick.  42.  And  although  it  was  decided  in  Russel  v.  Lewis,  2  Pick. 
509,  that  where  the  legal  estate  was  vested  in  trustees,  the  interest  of  the 
cestui  que  trust  could  not  be  taken  in  execution,  the  case  went  on  the  fami- 
liar principle,  that  a  mere  equity  cannot  be  extended  at  common  law. 

In  Gray  v.  Blanchard,  8  Pick.  284,  the  Supreme  Court  of  Massachu- 
setts sustained  an  action  brought  to  recover  possession  of  an  estate  in  fee,  as 
forfeited  by  the  breach  of  a  condition,  contained  in  the  original  conveyance  by 
the  plaintiff,  that  no  window  should  be  made  in  the  north  wall  of  a  house,  which 
was  part  of  the  premises  conveyed.  The  land  on  which  the  window  in  ques- 
tion looked,  and  which  belonged  to  the  grantor  at  the  time  of  condition  made, 
had  since  been  aliened,  but  the  right  to  take  advantage  of  the  condition, 
to  the  extent  of  regaining  an  absolute  fee  in  the  premises,  was  held  to  remain 
in  him  and  his  heirs,  and  to  be  well  exercised  against  the  alienee  from  the 
original  grantee,  and  a  mortgagee  under  him,  although  the  breach  occurred 
subsequently  to  the  mortgage,  and  was  the  act  of  the  mortgagor.  A  condi- 
tion said  Parker,  C.  J.,  that  there  should  be  no  windows  in  any  part  of  the 
house  would  be  bad,  but  a  condition  not  to  have  windows  in  a  particular 


92  smith's    leading    cases. 

wall  is  good.  In  Ilaydyu  v.  Stoughton,  5  Pick.  528,  these  principles  were 
applied  to  the  grant  of  an  estate  conditioned  for  the  erection  of  a  school-house; 
which  was  held  to  be  absolutely  forfeited  by  a  failure  on  the  part  of  the  gran- 
tees, during  the  space  of  twenty  years,  to  erect  the  building.  And  in  the  sub- 
sequent case  of  Simmonds  v.  Simonds,  3  Metcalf,  562,  the  validity  of  con- 
ditions in  restraint  of  alienation  during  a  limited  period,  was  recognised  by 
the  same  tribunal,  who  held  that  on  a  devise  in  fee  to  one  of  the  sons  of 
the  testator,  a  condition  not  to  alien  during  the  life  of  the  other,  would  have 
been  good,  although  it  was  determined,  that  such  was  not  the  intent  of  the 
proviso,  of  which  the  construction  was  before  the  court. 

In  the  case  of  Taylor  v.  Mason,  9  Wheaton,  350,  it  was  held  by  the 
Supreme  Court  of  the  United  States,  that  a  condition  in  a  devise  of  a  rever- 
sion, after  a  previous  estate  for  life  given  by  the  same  will,  that  the  devisee 
should  ''  take  an  oath  before  he  has  possession,  that  he  will  not  make  any 
change  in  the  will  of  the  devisor  relative  to  his  real  property,"  was  repug- 
nant to  the  nature  of  the  estate,  and  void.  It  was  farther  held,  that  the 
possession  meant  was  an  actual  and  corporeal  possession,  and  not  the  legal 
vesting  of  the  estate  ;  and  that,  as  the  condition  must,  therefore,  be  con- 
sidered as  subsequent,  not  precedent,  the  devisee  took,  in  consequence  of 
its  invalidity,  an  estate  absolute.  Had  the  condition  although  void,  been 
precedent,  it  was  admitted  that  the  devise  could  not  have  taken  effect. 

A  question  arose  in  Cook  v.  Turner,  15  M.  &  W.  277,  as  to  the  validity 
of  a  condition  in  avoidance  of  a  devise,  in  case  the  devisee,  who  was  the  heir 
at  law,  should  contest  the  validity  of  the  will,  which  gave  the  greater  part 
of  the  testator's  property  to  other  persons.  It  was  contended,  against  the 
validity  of  such  a  condition,  that  it  was  in  restraint  of  the  right  of  the  sub- 
ject to  apply  to  the  law  for  protection  against  a  forgery  by  a  stranger,  or  a 
devise  made  by  a  lunatic  ancestor ;  and  that,  in  view  of  the  inconveniences 
which  might  arise  from  such  restrictions  in  some  cases,  they  should  not  be 
permitted  in  any.  It  was,  however,  held  by  the  court,  that  as  such  condi- 
tions tend  to  prevent  litigation  when  the  will  is  valid,  and  must  fail  of  effect 
when  it  is  void,  they  do  not  come  in  conflict  with  legal  or  general  policy, 
and  should  be  sustained  and  enforced  by  the  courts. 

It  was,  however,  fully  admitted  in  the  course  of  this  decision,  that  every 
condition  imposing  an  arbitrary  and  injurious  restraint  upon  the  freedom 
or  usefulness  of  the  citizen,  is  essentially  void,  and  that  no  effect,  therefore, 
can  be  given  to  a  condition  in  restraint  of  marriage,  or  of  commerce  or  agri- 
culture. This  salutary  doctrine  was  applied  by  the  Supreme  Court  of  New 
York,  in  Newkirk  v.  Newkirk,  2  Caines,  345,  to  a  condition  in  a  devise 
that  the  devisees  should  inhabit  the  town,  where  the  land  devised  was  situa- 
ted, which  was  held  to  be  useless  and  frivolous,  and  without  operation  on 
the  estate  devised.  And,  the  better  opinion  undoubtedly  is  in  accordance  with 
that  expressed  in  Cook  v.  Turner,  that  conditions  in  restraint  of  marriage  are 
void,  unless  justified  by  the  circumstances  under  which  they  are  imposed. 
Thus  where  a  gift  is  limited  to  the  widowhood  of  the  donee,  with  a  view  to 
prevent  a  re-marriage  injurious  to  the  offspring  of  her  first  husband,  the  restric- 
tion will  be  valid  :  but  a  condition  prohibiting  the  marriage  of  a  unmarried 
son  or  daughter  is  essentially  void,  and  will  not  sustain  a  limitation  over  : 
Scott  V.  Tyler,  2  Brown's  C  C.  431;  Morley  v.  Reynolds,  2  Hare,  570; 
The  Commonwealth  v.  Stauffer,  10  Barr,  250;  Phillips  v.  Medbury,  7  Conn. 


dumpor'scase.  93 

588  ;  Parsons  v.  Winslow  6  Mass.  169 ;  Bennet  v.  Robinson,  10  Watts,  348. 
And  every  condition  in  restraint  of  marriage  attached  to  bequests  of  person- 
alty, will  be  construed  as  intended  merely  in  terrorem,  and  therefore  inopera- 
tive, unless  coupled  with  a  limitation  over  in  the  event  of  a  breach  ;  M'llvain 
V.  Githin,  3  Wharton,  375;  Hoopes  v.  Dundas,  10  Barr,  75. 

No  estate  of  freehold  could  be  created  at  common  law  without  livery,  or 
be  determined  without  some  act  in  pais  of  equal  notoriety.  Whatever, 
therefore,  the  terms  of  a  condition  attached  to  such  an  estate,  and  whether 
it  be  merely  for  re-entry,  or  of  complete  avoidance,  the  estate  will  continue 
notwithstanding  a  forfeiture,  unless  the  forfeiture  be  enforced  by  an  actual 
entry,  or  a  claim,  when  entry  is  impossible;  Coke  Lit.  214,  b.;  Spear  v. 
Fuller,  8  New  Hampshire,  174 ;  Hamilton  v.  Elliott,  5  Sergeant  &  llawle, 
375;  The  Fifty  Associates  v.  Howland,  11  Metcalf,  99;  Holly  v.  Brown, 
14  Connecticut,  255  ;  Bowen  v.  Bowen,  18  id.  585;  Chalker  v.  Chalker,  1 
id.  92 ;  Garrett  v.  Scouten,  3  Denio,  334.  But  where  a  condition  in  abso- 
lute avoidance,  is  attached  to  an  estate  for  years,  which  may  be  created  by 
parol,  no  entry  is  necessary,  and  the  interest  of  the  lessee  will  be  determined 
by  any  act  of  the  lessor,  showing  an  intention  to  determine  it;  Coke  Lit. 
214,  b. ;  Jones  v.  Carter,  15  M.  &  W.  718.  In  this  ease,  however,  as  well 
as  in  all  others,  the  effect  of  the  condition  cannot  go  beyond  its  terms,  and 
where  the  lessor  has  merely  reserved  a  right  of  re-entry  upon  breach,  he 
cannot  claim  any  thing  more,  nor  treat  the  estate  of  the  tenant  as  at  an  end 
until  a  re-entry  has  been  made  actually,  or  by  implication.  This  seems  to 
be  the  true  ground  on  which  to  put  the  decision  in  The  Fifty  Associates 
V.  Howland,  and  not  the  distinction  taken  by  the  court,  between  the  effect 
of  conditions  and  conditional  limitations  on  estates  of  freehold,  which  was 
wholly  inapplicable  in  a  case  where  the  condition  was  one  of  re-entry,  reserv- 
ed in  a  lease  for  years.  But  although  the  necessity  for  an  entry,  to  take 
advantage  of  a  breach  of  condition  of  any  sort,  attached  to  a  freehold,  or 
of  a  condition  merely  of  re-entry  attached  to  an  estate  for  years,  still  con- 
tinues to  form  part  of  the  theory  of  the  English  law,  it  has  long  ceased  to 
be  of  much  importance  in  practice,  and  it  is  thoroughly  well  settled,  that 
the  confession  of  lease,  entry,  and  ouster  contained  in  the  consent  rule  in 
ejectment,  will  estop  the  tenant  from  setting  up  the  want  of  an  actual  entry 
as  a  bar  to  the  action,  when  brought  to  recover  possession  for  condition 
broken ;  Little  v.  Heaton,  2  Lord  Raymond,  750  ;  Goodright  v.  Cator,  2 
Douglas,  286;  Doe  v.  Masters,  2  B.  &  C.  290;  Doe  v.  Rollings,  4  C.  B. 
188. 

The  same  rule  applies  in  this  country,  wherever  entering  into  the  consent 
rule  still  forms  a  part  of  the  proceedings  in  an  ejectment ;  Jackson  v.  Crysler, 
1  Johnson's  Cases,  126;  Matthews  v.  Ward,  10  Gill&  Johnson,  443.  But, 
in  many  of  the  states,  the  action  of  ejectment  exists  only  in  a  modified  form, 
in  which  the  fictions  of  the  English  practice  are  dispensed  with,  and  the 
action  proceeds  adversely  as  in  other  cases,  without  calling  for  admissions  of 
any  sort  from  the  defendant.  Unless,  therefore,  it  retain  its  former  incidents 
by  implication,  it  can  no  longer  be  relied  on  as  a  substitute  for  an  actual 
entry.  In  Hamilton  v.  Elliott,  5  Sergeant  &  Rawle,  375,  an  entry  was 
treated  as  necessary,  to  sustain  an  action  of  ejectment  for  a  breach  of  condi- 
tion attached  to  an  estate  of  freehold,  save  where  the  grantor  is  in  actual 
possession ;  and  although  an  entry  was  dispensed  with  in  Bear  v.  Whisler,  7 


94  SMITn'SLEADING     CASES. 

Watts,  144,  yet  the  language  of  tlie  court  leaves  it  doubtful,  wlietlier  this 
was  ou  legal  or  c(iuitable  grounds.  In  the  New  England  states,  the  course 
of  decision  re(juires  an  actual  entry,  not  only  in  those  cases  where  the  plain- 
tiff proceeds  by  writ  of  entry  when  it  is  undoubtedly  necessary  ;  Chalker  v. 
Chalker,  1  Connecticut,  92 ;  Sperry  v.  Sperry;  The  Fifty  Associates  v. 
Howland  ;  but  when  he  brings  ejectment,  which  seems  to  be  regarded  as  a 
substitute  for  the  real  actions  which  were  originally  the  ordinary  mode  of 
trying  the  title  to  land,  throughout  that  part  of  the  country,  as  they  still  are 
in  Massachusetts;  Holly  v.  Brown.  If  as  these  decisions  indicate,  the 
change  in  the  manner  of  prosecuting  an  ejectment,  prevents  it  from  serving 
as  a  substitute  for  an  actual  entry,  the  result  is  to  be  regretted  as  interpos- 
ing a  technical  and  useless  obstacle  in  the  way  of  the  plaintiff,  without  any 
real  or  corresponding  advantage  to  the  defendant,  and  tending,  in  the  lan- 
guage held  by  Lord  Mansfield  in  Groodright  v.  Cator,  2  Douglas,  477,  and 
repeated  by  "Wilde,  C  J.,  in  Doe  v.  Rollings,  4  C  B.  188,  to  entangle  the 
right,  in  a  net  of  form  without  meaning. 

Whatever  doubt  may  exist  on  this  point,  there  is  none,  that  whenever  a 
condition  is  for  the  non-payment  of  rent,  a  demand  on  the  land  is  necessary  to 
constitute  a  breach  and  complete  the  forfeiture,  and  that  an  actual  entry  is 
essential  for  this  purpose,  even  when  unnecessary  to  take  advantage  of  the 
breach  when  completed.  Agreeably  to  the  common  law,  such  a  condition 
only  bound  the  tenant  to  be  present  with  the  rent  ready  for  payment,  at  any 
time  before  the  close  of  the  day  on  which  it  was  payable,  at  the  most  notori- 
ous place  on  the  land,  so  that  the  only  mode  in  which  the  landlord  could 
show,  that  the  condition  had  been  violated,  was  by  appearing,  at  that  place, 
in  person,  or  by  attorney,  and  after  making  a  formal  demand  of  the  rent 
remaining  there  in  readiness  to  receive  it,  until  sun  down;  Coke  Lit.  201, 
b,  202,  a. ;  McCormick  v.  Council,  6  Sergeant  &  Rawle,  151 ;  McKubbin 
V.  Whitcraft,  4  Harris  &  McHenry,  135;  Garrett  v.  Scouten,  3  Denio,  334; 
Spear  v.  Fuller,  8  New  Hampshire,  477 ;  Conner  v.  Bradley,  1  Howard, 
211 ;  Groodright  v.  Cator,  2  Lord  Raymond,  751 ;  Doe  v.  Wandlass,  7 
Term,  120.  And  an  entry  for  the  purpose  of  demanding  the  rent  and  thus 
completing  the  forfeiture,  seems  to  be  necessary  even  in  the  case  of  a  con- 
dition in  absolute  avoidance  attached  to  a  lease  for  years,  where  no  entry  is 
requisite  to  take  advantage  of  the  forfeiture  when  completed ;  Coke  Lit. 
202,  a. ;  Clun's  Case,  1  Coke,  128.  But  this  necessity  for  a  demand  on 
the  land,  only  exists  in  the  case  of  conditions  for  the  payment  of  rent,  it 
being  the  duty  of  the  grantee  of  land,  subject  to  the  payment  of  a  sum  in 
gross  to  seek  out  the  person  entitled  to  receive  the  payment ;  Shepherd's 
Touchstone,  136  ;  Coke  Lit.  210,  a.  If,  however,  the  latter  reside  without 
the  state,  this  duty  will  be  excused,  and  no  breach  of  the  condition  will  occur 
until  a  failure  to  pay  on  demand,  which  must,  however,  be  personal,  and 
need  not  be  on  the  land  ;  Coke  Lit.  210,  b. ;  Bradstreet  v.  Clark,  21  Pick. 
389.  And  it  was  held  in  this  case,  that  whenever  a  demand  is  a  neces- 
sary preliminary  to  a  forfeiture,  it  must  be  of  the  precise  sum  due,  or  at 
all  events,  not  of  a  larger  amount. 

It  must  be  understood,  that  when  the  condition  is  for  the  non-payment  of 
rent,  entry  and  demand  are  essential  to  complete  the  forfeiture,  for  it  is  not 
until  demand  and  non-payment  that  the  condition  is  broken.  An  entry, 
either  constructive  or  real,  is  necessary  to  take  advantage  of  the  breach;  but 


dumpor'scase.  95 

there  is  nothing  either  in  authority  or  principle,  to  prevent  the  grantor  from 
effecting  this  at  any  subsequent  period,  although  the  entry  to  make  the 
demand  for  the  purpose  of  completing  the  breach,  may  be  made  to  answer 
also,  as  an  entry  to  take  advantage  of  it  when  completed.  Conditions 
in  deed,  however,  like  most  other  parts  of  common  assurances,  may  be  mould- 
ed by  the  agreement  of  the  parties  to  any  intent  not  inconsistent  with  the 
policy  of  the  law ;  and  consequently  by  special  consent,  there  may  be  re- 
entry for  default  of  payment  of  rent  without  demand  of  it.  Dormer's  Case, 
5  Coke,  41.  In  such  a  case  the  mere  failure  to  pay  with  or  without  demand, 
constitutes  the  breach,  and  of  course  a  subsequent  entry  at  any  time  is  good : 
for  as  it  has  already  been  stated,  the  necessity  for  coming  on  the  land  at 
the  day,  arises  from  the  period  fixed  by  law,  not  for  the  entry,  but  the 
demand ;  and  as  the  entry  need  not  be  at  any  particular  time,  the  construc- 
tive entry  confessed  or  implied  by  an  ejectment  will  be  as  effectual,  in  Eng- 
land, as  though  the  grantor  had  actually  gone  upon  the  land  in  person  or  by 
an  agent.  This  doctrine  was  applied,  in  England,  in  the  case  of  Groodright 
v.  Cator,  2  Douglas,  477,  and  in  that  of  Doe  v.  Masters,  2  Barnewall  & 
Cresswell,  490,  in  which  it  was  held,  that  where  there  is  an  express  stipu- 
lation that  the  lessor  may  enter  without  demand,  no  demand  is  necessary. 

There  can  be  no  doubt,  that  to  constitute  a  legal  entry  in  avoidance  of  an 
estate,  when  an  entry  is  necessary,  there  must  be  an  intent  to  enter  for  the 
purpose  of  taking  actual  or  constructive  possession  of  the  land,  and  not 
merely  for  that  of  making  a  demand  on  the  tenant;  Bowen  v.  Bowen,  18 
Conn.,  585;  or  removing  goods  belonging  to  the  landlord  from  the  premi- 
ses; Holly  V.  Brown,  14  Conn.  255;  for  if  the  law  were  not  so,  a  mere 
visit  or  an  accidental  trespass,  might  subsequently  be  construed  as  an  entry. 
And  in  Atkins  v.  Chilson,  9  Metcalf,  52,  it  was  decided  that  where  a  lessor 
declared  that  the  entry  was  made  for  the  breach  of  a  condition,  which  had 
not  in  fact  been  broken,  he  could  not  subsequently  sustain  it,  by  proving 
that  another  proviso  in  the  lease  had  been  violated,  as  to  which  he  had  said 
nothing  at  the  time  of  entering.  The  court  held  that  although  he  might 
have  been  silent  as  to  the  reason  for  his  act,  yet  as  he  had  chosen  to  assign 
one  ground,  he  was  bound  to  adhere  to  it,  and  could  not  subsequently  put 
forward  another.  But  some  doubt  may  exist  as  to  the  propriety  of  this 
determination,  for  it  seems  well  settled,  that  where  there  is  a  right  to  enter 
on  land,  the  law  will  refer  the  entry  to  the  right,  and  will  not  allow  it  to  be 
made  wrongful,  by  the  declaration  of  the  party,  that  he  enters  under  another 
and  insufficient  title;  Doe  v.  Woodroffe,  10  M.  &  W.  608;  Buard  v.  Wil- 
liams, 7  Wheaton,  59. 

The  same  principle  which  allows  an  agreement  between  the  landlord  and 
tenant,  in  derogation  of  the  requisites  necessary  at  common  law  to  constitute 
a  forfeiture  for  the  non-payment  of  rent,  necessarily  permits  the  interposi- 
tion of  additional  formalities  in  favour  of  the  tenant.  When,  therefore,  a 
right  of  entry  is  reserved,  in  case  of  the  non-existence  of  a  sufficient  dis- 
tress, or  the  non-performance  of  any  of  the  covenants  or  conditions  of  the 
lease,  that  the  clause  will  be  read  conjunctively,  and  an  entry  can  not  be 
made  unless  a  sufficient  distress  is  wanting. 

From  what  has  been  said,  it  appears,  that  although  the  English  decisions 
have  removed  from  the  landlord,  as  from  all  other  parties  proceeding  for  con- 
dition broken,  the  burden  of  making  an  actual  entry,  to  take  advantage  of  a 


96  smith's    LEADING     CASES. 

breach  of  condition,  by  holding  the  constructive  entry  implied  by  an  action  of 
ejectment,  sufficient  for  that  purpose;  even  when  the  estate  to  be  avoided  is 
one  of  freehold  J  Doe  v.  Masters,  2  Barn.  &  Cress.,  290;  Little  v.  Heaton,  2 
Lord  Raymond,  750;  Goodrightv.  Cator,  2  Douglas,  286;  Jackson  v.  Cryster, 
1  Johnson's  Cases,  126 ;  yet,  that  the  necessity  for  proving  a  strict  com- 
mon law  demand,  both  as  to  time  and  place,  still  remains,  unless  dispensed 
with  by  the  agreement  of  the  parties,  whenever  a  forfeiture  for  non-pay- 
ment of  rent  is  to  be  established.  Goodright  v.  Cator,  2  Lord  Raymond, 
751,  in  margin;  Doe  v.  Wandlass,  7  Term,  120;  McCormick  v.  Connell, 
6  S.  &  R.  151,  and  even  where  the  condition  is  one  of  absolute  avoidance, 
and  attached  to  a  term  for  years;  Jackson  v.  Kipp,  3  Wendell,  231.  There 
is  some  difficulty  in  determining  what  will  amount  to  such  an  agreement. 
In  the  English  cases  quoted  above,  the  agreement  to  waive  the  demand  was 
express;  but  it  is  possible  that  where  the  condition  of  the  deed  is,  that  if 
the  rent  be  for  a  certain  number  of  days  in  arrear,  the  grantor  may  avoid 
the  estate  by  notice,  the  parties  would  be  held  to  have  agreed  to  substitute 
another  mode  of  completing  the  forfeiture,  for  that  provided  by  the  com- 
mon law,  in  the  case  of  an  ordinary  condition  of  re-entry ;  Doe  v.  Wand- 
less,  Jones  v.  Clark.  However  this  may  be,  it  is  evident  that  an  actual 
entry  is  no  longer  an  essential  part  of  the  remedy  to  take  advantage  of  a 
breach  of  condition,  either  in  England  or  New  York,  and  that  the  confession 
of  entry  by  the  defendant,  implied  or  made  in  an  action  of  ejectment,  is 
sufficient  to  enable  the  plaintiff  to  recover,  whether  the  estate  in  question 
be  for  years  or  for  freehold,  and  -whether  the  condition  be  of  absolute 
avoidance  or  merely  for  a  re-entry. 

An  action  of  ejectment  for  the  breach  of  a  condition,  in  avoidance  of  au 
estate  of  freehold,  must  still,  however,  in  all  cases,  be  based  upon  an  entry 
either  actual  or  constructive,  and  must  therefore  be  brought  by  a  party 
entitled  to  enter.  At  common  law,  an  entry  to  avoid  an  estate  for  condition 
broken,  can  only  be  made  by  the  grantor  and  his  heirs ;  such  an  entry  being 
widely  different  from  one  made  merely  in  the  exercise  of  a  present  right  on 
one  side,  and  not  for  the  purpose  of  defeating  a  vested  interest  on  the  other. 
When,  however,  the  estate  is  for  years,  and  conditioned  to  be  absolutely 
void,  it  will  determine  on  one  side  and  revest  on  the  other,  immedi- 
ately upon  breach;  and  a  grantee  of  the  reversion  may  consequently 
enter,  not  to  defeat  the  estate  of  the  tenant,  which  is  already  gone, 
but  merely  to  take  possession  of  what  is  his  own;  Coke  Lit.  214,  b. ; 
Davy  v.  Matthew,  Croke  Eliz.  649.  But  except  in  this  single  instance 
of  a  condition  for  absolute  avoidance,  attached  to  an  estate  for  years, 
in  which  the  benefit  of  the  condition,  passes  incidentally,  rather  than  the 
condition  itself,  the  assignee  of  a  grantor  cannot  take  advantage  of  a  condi- 
tion reserved  by  deed;  Lit.  sect.  347;  Coke  Lit.  214  a.  214,  b.  Although 
some  dicta  may  be  found  supporting  the  idea,  that  the  reversion  carries  with 
it  the  implied  covenant,  arising  on  the  reddendum  at  common  law,  and  inde- 
pendently of  statutory  enactment;  Harper  v.  Burgh,  2  Levinz,  206;  Shep- 
pard's  Touchstone,  p.  120 ;  the  impossibility  of  passing  the  right  to  take 
advantage  of  a  condition,  to  an  assignee,  has  never  been  questioned.  The 
statute  32  H.  8,  c.  34,  rendered  conditions  attached  to  estates  for  life,  or 
years,  susceptible  of  transfer  to  the  assignees  of  reversions,  who  were  also 
invested  with  all  covenants  made  by  or  with  their  assignors,  which  were 


dumpor'scase.  97 

capable  of  running  with  land.  By  analogy  to  the  constructive  restraint 
imposed  on  the  passage  of  covenants,  and  which  was  derived  from  the  pre- 
vious law  regulating  their  capacity  for  running  with  land,  it  has  been  held, 
that  the  assignee  cannot  take  advantage  of  conditions  merely  collateral. 

When,  however,  the  condition  relates  to  the  estate  itself,  or  to  the  perform- 
ance of  a  duty  attached  to  the  possession  of  the  estate,  as  in  the  case  of 
a  condition  binding  the  lessee  to  repair  the  premises  demised,  or  giving  the 
lessor  the  right  to  determine  a  lease  for  twenty-one  years  at  the  end  of 
seven,  it  will  be  within  the  remedial  purpose  of  the  statute,  and  may  be 
taken  advantage  of  by  an  assignee  of  the  reversion ;  Wright  v.  Burroughes, 
3  C.  B.  G84 ;  Roe  v.  Hayley,  12  East,  4G4.  But  this  distinction  between 
collateral  conditions,  and  those  relating  to  the  subject-matter  granted,  has  no 
application  when  the  assignment  is  of  the  estate  in  the  land,  for  that  may 
always  be  avoided  in  the  hands  of  the  assignee  for  breach  of  any  valid  con- 
dition, however  foreign  to  the  land  itself,  although  the  contrary  seems  to 
have  been  supposed  in  Verplank  v.  Wright,  23  Wend.  506. 

It  has  been  stated  above  that  the  rule  against  the  apportionment  of  con- 
ditions, prevents  them  from  operating  in  favour  of  a  grantee  of  the  rever- 
sion in  part  of  the  land,  but  that  when  a  lesser  estate  is  granted  out  of  the 
whole  of  the  reversion,  the  grantee  will  be  within  the  statute,  and  may 
enforce  the  condition,  (supra.) 

Of  course,  after  the  grantor  of  an  estate  has  taken  advantage  of  a  condi- 
tion, by  the  proper  means,  he  is  in  of  his  old  estate,  and  may  convey  it  to 
whom  he  pleases ;  and  as  the  law  never  requires  a  party  to  enter  on  him- 
self, it  follows,  that  if  the  grantor  has  an  estate  in  possession  in  the  land, 
at  the  time  of  the  breach,  he  may  convey  the  whole  at  once,  as  the  for- 
feiture will  be  complete,  without  entry  or  claim,  which  is  merely  a  substitute 
for  entry;  Coke  Lit.  218,  b.  This  doctrine,  which  is  undeniably  law,  was 
recognised  and  applied  in  Hamilton  v.  Elliot,  5  Sergeant  &  Rawle,  385.  In 
New  Hampshire,  however,  it  has  been  decided,  that  even  where  the  grantor 
is  in  possession,  he  must  give  notice  of  his  intention  to  take  advantage  of 
the  forfeiture,  in  order  to  avoid  the  estate;  Willard  v.  Henry,  2  New  Hamp- 
shire Reports,  120.  But  this  opinion  seems  to  have  gone  upon  a  misappli- 
cation of  the  law,  with  regard  to  the  breach  of  conditions  attached  to  a  rever- 
sion, where  the  grantor  has  no  possession,  to  the  case  of  a  condition  attached 
to  a  present  estate,  and  broken  while  possession  was  in  him.  In  Frost  v. 
Willard,  7  Greenleaf,  225,  a  grantor  in  possession,  was  allowed  to  take 
advantage  of  a  breach  of  condition,  but  as  notice  was  given,  the  question 
of  its  necessity  was  not  determined. 

It  is  important  to  observe,  that  conditions  attached  to  estates  in  fee  or  tail, 
do  not  come  within  the  provisions  of  the  statute,  and  are  as  insusceptible  of 
assignment  now,  as  they  were  at  common  law. 

A  brief  examination  of  the  authorities  will  render  this  evident.  It  is 
well  known  that  since  the  passage  of  the  statute  of  Quia  Emptores,  there 
has  been  no  tenure  in  England,  between  the  grantee  of  an  estate  in  fee,  and 
the  grantor,  and  that  no  reversion,  or  possibility  of  reverter,  has  subsisted 
in  the  latter.  As  the  statute  of  32  Henry  8,  speaks  only  of  grantees  of 
reversions,  and  as  it  only  gives  the  capacity  for  transfer  to  conditions,  when 
coupled  with  reversions,  it  follows,  that  a  condition  reserved  on  the  grant  of 
an  estate  in  fee,  is  incapable  of  being  assigned  to  a  third  party,  so  as  to  give 
Vol.  I.— 7 


98  smith's  LEADING  CASES. 

him  the  right  to  take  advantage  of  it,  either  by  entry  or  by  action  of  eject- 
ment. This  is  the  more  obvious,  since  even  the  reversion  reserved  upon  a 
grant  in  tail,  is  not  within  the  meaning  of  the  statute,  which,  in  fact,  applies 
only  to  conditions  attached  to  estates  for  life  or  years;  Coke  Lit.  215,  a; 
Winter's  case,  Dyer,  309,  a;  Lewes  v.  Ridge,  Croke  Eliz.  8G3 ;  18  Conn. 
335. 

Although  the  point  has  never  been  directly  adjudged  in  Pennsylvania, 
the  general  opinion  of  the  profession  there  has  been,  that  the  assignees  of 
rents  reserved  on  conveyances  in  fee,  might  take  advantage  of  all  conditions, 
in  those  conveyances,  for  the  payment  of  the  rent,  or  the  performance  of 
any  other  act  not  collateral  to  the  estate  granted.  It  is,  however,  obvious, 
from  what  has  been  said,  that  such  a  right  is  not  capable  of  being  supported 
either  by  the  common  or  statute  law;  and  that,  if  valid,  it  must  be  so 
merely  by  the  general  usage  of  the  State  iu  question.  It  has  been 
decided,  that  the  assignees  of  such  rents  may  bring  covenant  against  the 
original  grantee  of  the  land,  or  those  claiming  under  him  by  descent  or 
purchase;  Stephen  v.  Fisher,  1  Rawle,  155;  Miles  v.  St.  Mary's  Church, 
1  Wharton,  229 ;  but  no  express  decision  has  been  made,  giving  them  the  right 
to  enter  for  condition  broken.  It  is  however  well  settled,  that  the  assignee 
of  a  ground  rent  is  entitled  to  priority  of  payment,  on  the  sale  of  the  land 
under  an  execution,  over  all  encumbrances,  subsequent  to  the  reservation  of 
the  rent,  and  this  necessarily  implies,  under  the  jurisprudence  of  Pennsyl- 
vania, that  he  is  entitled  to  the  benefit  of  the  condition. 

It  is  necessary  here  to  make  some  observations  on  the  case  of  Havergill 
V.  Hare,  Croke  Jac.  511,  which  has  sometimes  been  mistaken  as  an  autho- 
rity for  the  position,  that  a  condition  annexed  to  an  estate,  acting  under  the 
statute  of  uses,  may  be  assigned.  In  that  case,  a  rent-charge  in  fee  was 
granted  out  of  land,  but  there  was  no  grant  or  conveyance  of  the  land  itself; 
and  thus,  no  condition  for  defeating  the  estate  in  the  land,  and  vesting  it  in 
the  tenant  of  the  rent  was  possible.  Litt.  sect.  349  ;  Browning  v.  Beston, 
Plowden,  133.  There  was,  however,  a  covenant  to  levy  a  fine  of  the  land, 
to  the  use,  that  upon  rent  arrear,  the  tenant  of  the  rent  and  his  assigns, 
miglit  enter  and  hold  the  land  until  satisfied.  An  assignment  being  made, 
parcel  of  the  rent  in  arrear,  and  a  fine  afterwards  levied,  one  of  the  ques- 
tions raised  was,  whether  the  contingent  springing  use,  arising  under  the  fine, 
could  be  assigned  before  it  vested.  This,  the  court  held  it  might,  as  it  was 
attached  to  the  rent  for  security,  though  not  otherwise.  It  may  perhaps  be 
questioned,  whether,  instead  of  passing  while  contingent,  by  the  assignment 
of  the  rent,  the  use  did  not  arise  and  vest  in  the  assignee,  by  the  force  of 
the  fine,  and  by  virtue  of  the  descriptive  words  in  the  covenant,  leading  the 
use.  Be  this  as  it  may,  it  is  perfectly  evident,  as,  indeed,  all  the  judges 
held,  there  was  no  condition  whatever  in  the  case,  and,  consequently,  that 
the  decision  is  not  applicable  to  cases  arising  under  conditions. 

It  was  a  rule  of  the  common  law,  that  an  estate  which  began  by  livery, 
required  some  act  equally  notorious  to  avoid  it ;  and,  consequently,  to  deter- 
mine an  estate  of  freehold,  even  after  condition  broken,  an  entry  was  neces- 
sary. This  was  equally  true,  even  when  the  estate  was  to  become  abso- 
lutely void  on  breach,  for  whatever  might  be  the  terms  of  the  condition,  the 
grantor  had  nothing  until  entry  made;  Coke  Lit.  215,  a.  It  might  be  sup- 
posed that  this  rule  would  have  been  inapplicable,  to  estates  arising  under 


DUMPOR's     CASE.  99 

the  statute  of  uses,  but  even  in  the  case  of  a  bargain  and  sale,  conditioned 
on  the  happening  of  a  certain  event  to  be  void,  the  estate  does  not  revest  in 
the  bargainor,  on  the  breach  of  the  condition,  without  entry.  Fitzwilliam's 
case,  6  Coke,  34;  Coke  Lit.  218,  a.  It  would,  however  appear,  that  in 
conveyances  under  that  statute,  as  all  conveyances  necessarily  are,  which 
pass  a  freehold,  and  are  not  accompanied  by  livery  of  seisin,  the  parties 
may  be  entitled  to  provide  some  other  mode  of  avoiding  an  estate  of 
freehold,  on  breach  of  condition,  than  that  of  re-entry.  It  is  well  settled 
that  no  entry  is  necessary  to  determine  a  particular  estate  passed  in  such 
conveyances,  where  there  is  a  limitation  over  on  condition  broken,  although 
such  limitation  would  have  been  bad  at  common  law.  The  act  by  which  a 
power  of  revocation  is  executed,  is  nothing  more,  when  unaccompanied  by  a 
new  declaration  of  uses,  than  the  performance  of  a  condition  to  avoid  an  estate, 
which  has  arisen  under  the  statute ;  Fitzgerald  v.  Fauconbirge,  Fitzgibbon, 
207,  219.  Sugden  on  Powers,  vol.  1,  227,  228 ;  Sheppard's  Touchstone, 
by  Preston,  120 ;  Preston  on  Estates,  48.  And  it  would  seem  that  the 
eifect  of  such  a  power,  is  to  revest  the  estate  in  the  grantor,  without  the 
necessity  of  an  entry;  Sugden  on  Powers,  vol.  2,  p.  33.  A  power 
of  revocation  is  therefore  a  collateral  condition  in  avoidance  annexed  to 
the  person  or  will  of  the  holder  of  the  power,  and  is  well  reserved,  when 
in  any  conveyance  to  uses,  it  is  declared  that  on  the  performance  of  a  spe- 
cific act,  or  the  delivery  or  execution  of  a  notice,  or  writing,  the  estate 
granted  by  the  conveyance  shall  become  void.  Sugden  on  Powers,  vol.  1, 
226,  227,  231 ;  Coke  Lit.  237,  a.  Such  conditions,  moreover,  may  take 
effect  as  powers  of  revocation,  as  well  in  bargains  and  sales,  or  covenants  to 
stand  seised,  as  in  conveyances  operating  by  transmutation  of  possession. 
Sugden,  vol.  1,  160.  It  may,  therefore,  be  thought  that  a  proviso  in  a 
conveyance  in  fee  or  for  life,  reserving  a  rent,  that  if  the  rent  be  behind  for 
a  certain  number  of  days,  the  estate  shall  be  void  on  notice  by  the  grantor, 
would  amount  to  a  valid  power  of  revocation,  and  as  such,  avoid  the  estate, 
without  entry  or  claim.  If  this  be  so,  it  must  follow,  that  although  the 
assignee  of  the  rent  might  be  unable  to  take  advantage  of  the  proviso,  either 
as  condition  or  power,  before  the  forfeiture  of  the  estate  under  the  condition, 
or  its  avoidance  under  the  power ;  yet,  that  an  assignment  after  a  non-pay- 
ment of  the  rent,  and  delivery  of  the  notice,  would  pass  both  the  right  of 
property  and  the  right  of  immediate  possession  to  the  assignee. 

On  the  whole,  the  distinction  between  a  power  of  revocation  and  an 
ordinary  condition,  reserved  in  a  conveyance  under  the  statute  of  uses,  would 
seem  to  depend  upon  whether  the  intention  of  the  parties  is  to  proceed 
under  the  common  law,  and  create  a  condition  subject  to  a  strict  common 
law  interpretation,  or  to  take  advantage  of  the  statute,  and  raise  a  resulting 
use  in  favour  of  the  grantor,  upon  the  determination  of  the  estate  vested  in 
the  grantee.  In  the  latter  case,  an  entry  may,  as  it  seems,  be  dispensed 
with ;  while  in  the  former  it  is  essentially  necessary  to  enforce  the  forfeiture. 
And  this  seems  to  have  been  the  meaning  of  Lord  Coke,  in- saying  that  a 
power  of  revocation  is  in  the  nature  of  a  limitation,  and  may  therefore  be 
apportioned,  although  a  condition  cannot;  Coke  Lit.  215,  a. 

When  it  is  said,  in  general  terms,  that  a  condition  cannot  be  taken  ad- 
vantage of,  save  by  the  grantor  and  his  heirs,  and,  of  course,  that  it  is  cot 


100  smith's  leading   cases. 

assignable,  two  very  distinct  points  of  law,  resting  on  different  reasons,  are 
involved  in  the  assertion.  Before  breach,  the  reason  why  an  assignee  can- 
not take  advantage  of  a  condition,  really  depends  upon  the  want  of  capacity 
for  transfer,  of  the  condition  itself.  But  after  breach,  the  condition  itself  is 
gone,  and  there  arises  in  its  stead,  whatever  may  be  its  terms,  in  the  case 
of  freehold  estates,  at  all  events  when  created  by  common  law  conveyances, 
nothing  more  than  a  right  of  entry  in  the  grantor.  Now  this  right  of  entry 
is  as  little  capable  of  assignment,  in  England,  as  the  condition,  since  its 
transfer  is  forbidden  both  by  common  law  and  the  statutes  of  maintenance ; 
but  evidently  the  obstacles  to  its  assignment  rest  on  different  grounds,  from 
those  which  prevented  the  passage  of  the  condition  before  breach.  Lit.  sect. 
214,  Coke  Lit.  214  a.  The  law  is  the  same  in  most  of  the  states  of  this 
country.  Jackson  v.  Todd,  2  Caines,  183  ;  Williams  v.  Jackson,  5  Johnson, 
489  J  Jackson  v.  Demont,  9  id.  55;  Dame  v.  Wingate,  12  New  Hampshire, 
291 ;  Ilauman  v.  Hanman,  4  Conn.  575  ;  Gibson  v.  Shearer,  1  Murphy,  114. 
In  Pennsylvania,  however,  it  has  long  been  settled,  that  an  ordinary  right  of 
entry  may  be  assigned.  Stoever  v.  Whitman,  6  Binney,  416.  And  as  this 
is  the  case,  there  would  seem  to  be  no  conclusive  reason  why  the  right  of 
entry,  which  takes  the  place  of  a  condition  after  breach,  should  not  be  as- 
signed, although  the  condition  itself  could  not  have  been  transferred  before 

^J    breach. 

^Oi  It  must,  however,  be  observed,  that  there  is  a  deeply-seated  distinction 
^  between  the  right  of  a  grantor  after  condition  broken,  and  the  common 
^  right  of  entry  in  a  party,  against  whom  there  is  a  mere  naked  adverse  pos- 
session, unaccompanied  either  by  the  right  of  property,  or  the  right  of  pos- 
session. Both  these  rights  are,  in  such  a  case,  in  the  party  against  whom 
there  is  the  adverse  holding.  And  if  we  are  to  believe  with  Lord  Mansfield 
in  Taylor  v.  Horde,  1  Burrows,  GO,  that  even  where  a  disseisin  exists,  we  have 
no  means  of  recognisino;  its  existence,  there  would  seem  to  be  no  sufficient 
reason  against  holding  with  the  courts  of  Pennsylvania,  that  these  rights 
create  a  constructive  legal  seisin,  sufficient  to  enable  the  statute  of  uses  to 
operate.  There  is,  therefore,  some  colour  for  asserting,  that  a  party  against 
whom  there  is  a  mere  adverse  possession,  may,  where  the  statutes  of  main- 
tenance are  not  in  force,  convey  all  his  rights  to  an  assignee.  And  many 
of  the  decisions  in  other  states,  treat  such  a  conveyance  as  valid  between  the 
parties,  and  only  void  as  against  those  in  the  actual  and  adverse  possession 
of  the  land  conveyed.  Livingston  v.  Parsons,  2  Hill,  526;  Edwards  v. 
Roys,  11  Vermont,  473.  But  this  reasoning  does  not  apply  in  the  case  of 
the  breach  of  a  condition,  even  in  absolute  defeasance  of  a  freehold  estate. 
Except  in  so  far  as  the  doctrine  of  powers,  already  referred  to,  may  be  ap- 
plicable, not  merely  does  the  possession  of  the  tenant  of  the  estate  continue 
after  breach  and  before  entry,  but  it  continues  with  all  its  incidents ;  with 
the  right  of  possession,  and  the  right  of  property.  Of  course,  no  portion  of 
these  rights  can  be  at  the  same  time  in  the  grantor.  This  is  evident,  be- 
cause he  could  bring  no  action,  requiring  a  right  of  possession  or  a  right  of 
property  for  its  support,  having  neither  a  writ  of  right  nor  a  writ  of  entry. 
Coke  Lit.  214,  b.  240,  a;  Chalker  v.  Chalker,  1  Conn.  92.  Prom  this  ab- 
sence of  all  right  to  the  estate,  on  the  part  of  the  grantor  before  entry,  it  hap- 
pened that  a  descent  cast  did  not  toll  his  power  to  enter  ;   since  if  it  had,  as 


DUMP  or' S     CASE.  101 

he  could  bring  no  action,  he  would  have  lost  all  remedy.  In  fact,  strictly 
speaking,  the  grantor  had,  on  breach  of  the  condition,  a  title  of  entry,  but 
no  right  of  entry  nor  title  to  the  estate.  Lit.  sect.  391,  392 ;  Coke  Lit. 
240,  a;  Gilbert  on  Tenures,  26.  Until,  therefore,  there  shall  be  some  ex- 
press decision  in  Pennsylvania  to  that  effect,  it  may  be  doubted  whether 
according  to  the  law  of  that  state,  the  title  of  entry,  subsisting  in  the  grantor 
of  a  freehold  after  condition  broken,  and  which  is  unaccompanied  either  by 
the  right  of  property  or  possession,  raises  a  legal  seisin  sufficient  to  support 
a  conveyance  either  at  common  law,  or  under  the  statute  of  uses.  And 
whatever  the  law  may  be  in  Pennsylvania,  as  to  this  point,  there  is  no  rea- 
son for  supposing  that  it  varies  from  the  common  law  doctrine  held  in  the 
rest  of  the  United  States,  and  in  England,  as  it  regards  the  assignment  of 
conditions  before  breach. 

The  doctrine  that  a  condition  uncoupled  with  words  of  limitation,  cannot 
be  taken  advantage  of,  save  by  the  grantor  or  his  heirs,  requires  to  be  re- 
ceived with  a  certain  degree  of  qualification,  arising  out  of  the  principles 
of  equity.  Under  those  principles,  a  condition  intended  for  the  benefit  of 
a  third  person,  will  often  be  regarded  as  a  trust,  and  be  enforced  in  his 
favour,  as  a  charge  upon  the  land,  or  upon  the  person  holding  the  land  to 
which  it  is  attached.  Thus,  in  many  cases  what  once  was  held,  perhaps 
even  in  equity,  a  mere  condition,  will  now  be  there  viewed  as  a  trust,  or 
power  coupled  with  a  trust;  as  in  the  case  cited  by  Littleton,  sec.  383, 
where  lands  were  devised  to  an  executor  to  be  sold,  and  the  proceeds  distri- 
buted for  the  good  of  the  testator's  soul,  and  on  neglect  to  sell,  and  an 
assize  of  novel  disseisin  brought  by  the  heir,  judgment  was  rendered  in  his 
favour,  as  for  breach  of  condition  in  law.  Here,  according  to  Coke,  the 
profits  taken  before  sale,  were  not  assets  in  the  hands  of  the  executor  for 
the  payment  of  debts,  although  such  payment  was  the  principal  object  of 
the  devise.  Coke  Lit.  236  a.  In  equity,  at  the  present  day,  if  not  then,  a 
devise,  even  with  express  words  of  condition,  for  the  payment  of  debts,  would 
be  treated  as  raising  a  trust  for  creditors,  and  as  making  the  executor 
accountable  as  trustee,  for  whatever  he  received  from  the  land.  And  in 
Haydyn  v.  Houghton,  5  Pick.  528,  the  residuary  devisees,  and  not  the 
heir,  were  held  entitled  to  take  advantage  of  the  breach  and  condition  in  a 
will.  At  the  same  time,  it  does  not  appear  that  this  equitable  right  in  the 
parties  for  whose  benefit  a  condition  is  designed,  affects  the  right  of  the  heir 
to  enter  for  condition  broken,  where  a  condition  undoubtedly  exists,  or  would 
justify  a  court  of  common  law  in  refusing  him  the  exercise  of  that  right ; 
although  after  he  had  availed  himself  of  it,  equity  would  no  doubt 
follow  him  up,  and  -affect  him  with  the  trust.  In  the  case  of  Jackson 
V.  Topping,  1  "Wend.  388,  where  a  father  had  conveyed  lands  to  a  son, 
upon  condition  to  maintain  him  for  life,  and  to  pay  his  debts,  an  ejectment 
by  another  son  for  condition  broken,  was  supported,  although  the  breach 
averred  was  the  non-payment  of  a  debt  not  presented  for  discharge,  till  after 
the  decease  of  the  father.  As  far  as  the  condition  then  subsisted,  it  would 
seem  to  have  been  solely  for  the  benefit  of  the  creditors  of  the  father,  and 
although  gone  in  law  by  the  breach  and  entry,  we  may  presume  that  it 
would  have  been  enforced  in  equity,  as  a  trust  against  the  heir,  notwith- 
standing his  recovery  in  the  ejectment.  It  was,  however,  held  in  this  case, 
as  it  has  been  in  many  others,  that  the  right  of  entry  for  a  condition  broken, 


102  smith's   leading   cases. 

vests  in  all  the  parties  entitled  by  descent  under  the  statute  law,  and  not 
solely  in  the  heir  at  common  law.  Bowen  v.  Bowen,  18  Conn.  G35  j 
Wheeler  v.  Walker,  2  id.  196. 

Upon  a  devise  to  A.  for  life,  remainder  to  B.  in  fee,  upon  condition  that 
if  the  rents  and  profits  were  not  sufficient  during  the  life  of  A.  for  bis  sup- 
port, B.  should  supply  the  deficiency,  the  Supreme  Court  of  Massachusetts 
very  recently  decided,  that  the  remainder  devised  to  B.,  was  not  aifected 
with  any  trust  in  favour  of  A.  He  had  refused  the  devise  of  the  remainder, 
which  was  consequently  held  to  have  descended  to  the  heirs  of  the  testator ; 
but  the  court  were  of  opinion,  that  had  it  been  accepted,  the  right  to  enjoy 
it  for  condition  broken,  would  equally  have  remained  with  the  heirs,  and 
would  have  given  no  claim,  even  in  equity,  to  the  party  in  whose  favour 
the  condition  was  created.  Temple  v.  Nelson,  4  Metcalf,  586.  Had 
express  words  of  trust  for  the  support  of  A.  been  attached  to  the  devise  of 
the  inheritance  in  remainder  to  B.,  such  trust  would  certainly  have  been 
enforced  in  favour  of  A.'s  estate  on  his  death,  and  perhaps  by  a  sale  during 
his  life. 

The  estate  in  remainder  conveyed  in  this  case  by  the  devise,  vested 
immediately  in  interest,  upon  the  death  of  the  devisor;  and  therefore  the 
condition  would  seem  to  have  been  subsequent,  although  necessarily  to  be 
performed  or  broken,  before  the  devisee  could  acquire  the  right  of  posses- 
sion. On  breach  before  possession  taken,  whether  before  the  death  of 
tenant  for  life  or  not,  the  remainder  to  which  the  condition  was  attached 
n^ight,  however,  have  been  avoided  by  claim  on  the  land,  made  by  the  heir- 
at-law.     Coke  Lit.  218,  a.;  Browning  v.  Beston,  Plowden,  183. 

K. 


[22*]  *SPENCER'S    CASE. 


PASCII.  25  ELIZ.— IN  THE  KING'S  BENCH. 

[reported,  5  COKE,  16.] 

Covenants. — What  Covenants  run  with  the  Land. 

Spencer  and  his  wife(a)  brought  an  action  of  covenant  against  Clark, 
assignee  to  J.  assignee  to  S.,  and  the  case  was  such :  Spencer  and  his  wife  by 
deed  indented  demised  a  house  and  certain  land  An  the  right  of  the  wife)  to 
S.  for  term  of  twenty-one  years,  by  which  indenture  S.  covenanted  for  him, 
bis  executors,  and  administrators,  with  the  plaintiflFs,  that  he,  his  executors, 

(a)  2  Bulslr.281,  282.  Combcrb.  64.  Carth.  178.  Skinner,  211,  297.  3  Wilson,  27. 
Cro.  Jac.  459. 


spencer's   case.  103 

administrators  or  assigns,  would  build  a  brick  wall  upon  part  of  the  land 
demised,  &c.  S.  assigned  over  his  term  to  J,,  and  J.  to  the  defendant ;  and 
for  not  making  of  the  brick  wall  the  plaintiff  brought  the  action  of  cove- 
nant against  the  defendant  as  assignee  :  and  after  many  arguments  at  the 
bar,  the  case  was  excellently  argued  and  debated  by  the  justices  at  the 
bench  :  and  in  this  case  these  points  were  unanimously  resolved  by  Sir 
Christopher  Wray,  Chief  Justice,  Sir  Thomas  Grawdy,  and  the  whole  court. 
And  many  differences  taken  and  agreed  concerning  express  covenants,  and 
covenants  in  law,  and  which  of  them  would  run  with  the  land,  and  which  of 
them  are  collateral,  and  do  not  go  with  the  land,  and  where  the  assignee 
shall  be  bound  without  naming  him,  and  where  not,  and  where  he  shall 
not  Ije  bound,  although  he  be  expressly  named,  and  where  not..(i) 

1.  When  the  covenant  extends  to  a  thing  in  esse,  parcel  of  the  demise,  the 
thing  to  be  done  by  force  of  the  covenant  is  quodammodo  annexed  and 
appurtenant  to  the  thing  demised,  and  shall  go  with  the  land,  and  shall  bind 
the  assignee,(c)  although  he  be  not  bound  by  express  words :  but  when  the 
covenant  extends  to  a  thing  which  is  not  in  *being  at  the  time  of  ^,-y^  -, 
the  demise  made,  it  cannot  be  appurtenant  or  annexed  to  the  thing  L  ""'  -J 
which  hath  no  being  :  as  if  the  lessee  covenants  to  repair  the  houses  de- 
mised to  him  during  the  term,  that  is  parcel  of  the  contract,  and  extends  to 
the  support  of  the  thing  demised,  and  therefore  is  quodammodo  annexed 
appurtenant  to  houses,  and  shall  bind  the  assignee  although  he  be  not  bound 
expressly  by  the  covenant :  but  in  the  case  at  bar,  the  covenant  concerns  a 
thing  whieh  was  not  in  esse  at  the  time  of  the  demise  made,(c?)  but  to  be 
newly  built  after,  and  therefore  shall  bind  the  covenantor,  his  executors,  or 
administrators,  and  not  the  assignee,  for  the  law  will  not  annex  the  covenant 
to  a  thing  which  hath  no  being. 

2.  It  was  resolved  that  in  this  case,  if  the  lessee  had  covenanted  for  him 
aiid  his(e'^  assigns,  that  they  would  make  a  new  wall  upon  some  part  of  the 
thing  demised,  that  forasmuch  as  it  is  to  be  done  upon  the  land  demised, 
that  it  should  bind  the  assignee;  for  although  the  covenant  doth  extend  to  a 
thing  to  be  newly  made,  yet  it  is  to  be  made  upon  the  thing  demised,  and 
the  assignee  is  to  take  the  benefit  of  it,  and  therefore  shall  bind  the  assignee 
h>/  express  loords.  So  on  the  other  side,  if  a  warranty  be  made  to  one,  his 
heirs  and  assigns,  by  express  words,  the  assignee  shall  take  benefit  of  it, 
and  shall  have  a(/)  Warrantia  Chartge,  F.  N.  B.  135.  &  9  E.  2  ;  Garr'  de 
Charters,  30.  36  E.  3  ;  Garr,  1,  4  H.  8  j  Dyer  1.  But  although  the  cove- 
nant be  for  him  and  his  assigns,  yet  if  the  thing  to  be  done  be  merely  collat- 
eral to  the  land,  and  doth  not  touch  or  concern  the  thing  demised  in  any 
sort,  there  the  assignee  shall  not  be  charged.  As  if  the  lessee  covenants  for 
him  and  his  assigns  to  build  a  house  upon  the  land  of  the  lessor,  which  is 
no  parcel  of  the  demise,  or  to  pay  any  collateral  sum  to  the  lessor,  or  to  a 
stranger,  it  shall  not  bind  the  assignee,  because  it  is  merely  collateral,  and 
in  no  manner  touches  or  concerns  the  thing  that  was  demised,  or  that  is 

(6)  Moor,  1.59. 

(c)  Moor,  27.  399.  Cro.  El.  4,57,  5.52,  55.1.  1  Rnl.  521,  522.  Postea,  24.  1  Sand. 
2.39.  Cr.  Jac.  125.  Cr.  Car.  222,  523.  1  Jones,  245.  1  Siderf.  157.  1  Anders.  &2.  1 
Show.  284.     4  Mod.  80.     3  Lev.  326,     Sulk.  185,  317. 

(d)  Cr.  E1.457.     Cr.  Car.  439.     Dyer,  14,  pi.  69.     1  Anders.  82.     Moor,  159. 

(e)  Cr.  Car.  25,  188.    1  Jones,  223.     1  Rol.  Rep.  360.     Muor,  159.  399. 
(/)  F.  N.  B.  135,  d. 


104  smith'  S     LEADING     CASES. 

assigned  over;  and  therefore  in  such  case  the  assignee  of  the  thing  demised 
cannot  be  charged  with  it,  no  more  than  any  other  stranger. 

3.  It  was  resolved,  if  a  man  lcases(y)  sheep  or  other  stock  of  cattle,  or 
any  other  personal  goods  for  any  time,  and  the  lessee  covenants  for  him  and 
his  assigns  at  the  end  of  the  time  to  deliver  the  like  cattle  or  goods  as  good 

_  .  _  as  the  *things  letten  were,  or  such  price  for  them ;  and  the  lessee 
L  -I  assigns  the  sheep  over,  this  covenant  shall  not  bind  the  assignee,  for 
it  is  but  a  personal  contract,  and  wants  such(/<)  privity  as  is  between  the  les- 
sor and  lessee  and  his  assigns  of  the  land  in  respect  of  the  reversion.  But 
in  the  case  of  a  lease  of  personal  goods,  there  is  not  any  privity,  nor  any 
reversion, (?■)  but  merely  a  thing  in  action  in  the  personalty,  which  cannot 
bind  any  but  the  covenantor,(/i:)  his  executors,  or  administrators,  who  repre- 
sent him.  The  same  law,  if  a  man  demise  a  house  and  land  for  years,  with 
a  stock  or  sum  of  money,  rendering  rent,"!"  and  the  lessee  covenants  for  him, 
his  executors,  administrators  and  assigns,  to  deliver  the  stock  or  sum  of 
money  at  the  end  of  the  term,  yet  the  assignee  shall  not  be  charged  with 
this  covenant ;  for  although  the  rent  reserved  was  increased  in  respect  of 
the  stock  or  sum,  yet  the  rent  did  not  issue  out  of  the  stock  or  sum,(?)  but 
out  of  the  land  only  5  and  therefore  as  to  the  stock  or  sum  the  covenant  is 
personal,  and  shall  bind  the  covenantor,  his  executors  and  administrators, 
and  not  his  assignee.  And  it  is  not  certain  that  the  stock  or  sum  will  come 
to  the  assignee's  hands,  for  it  may  be  wasted,  or  otherwise  consumed  or 
destroyed  by  the  lessee,  and  therefore  the  law  cannot  determine,  at  the  time 
of  the  lease  made,  that  such  covenant  shall  bind  the  assignee. 

4.  It  was  resolved,  that  if  a  man  makes  a  feoffment  by  this  word(m)  dedi, 
which  implies  a  warranty,  the  assignee  of  the  feoffee  shall  not  vouch :  but  if 
a  man  makes  a  lease  for  years  by  this  word  concessihi)  or  demist,  which 
implies  a  covenant,  if  the  assignee  of  the  lessee  be  evicted,  be  shall  have  a 
writ  of  Covenant :  for  the  lessee  and  his  assignee  hath  the  yearly  profits  of 
the  land,  which  shall  grow  by  his  labour  and  industry,  for  an  annual  rent ; 
and  therefore  it  is  reasonable,  when  he  hath  applied  his  labour,  and  employed 
his  cost  upon  the  land,  and  be  evicted  ("whereby  he  loses  all),  that  he  shall 
take  such  benefit  of  the  demise  and  grant,  as  the  first  lessee  might,  and  the 
lessor  hath  no  other  prejudice  than  what  his  especial  contract  with  the  first 
lessee  hath  bound  him  to. 

5.  Tenant  by  the  courtesy,  or  any  other  who  comes  in  in  the  post, 
shall  not  vouch  (which  is  in  lieu  of  an  action).  But  if(6()  a  ward  be 
granted  by  deed  to  a  woman  who  takes  husband,  and  the  woman  dies, 
r*.:)-  -I  the  husband  shall  vouch  by  *force  of  this  word  grant  although  he 
\-  "  ^  comes  to  it  by  act  in  law.  So  if  a  man  demises  or  grants  land  to  a 
woman  for  years,  and  the  lessor  covenants  with  the  lessee  to  repair  the 

{g)  2  Jones,  152.     1  Leon.  43.     Swinb.  324.  (A)  Cr.Gar.  188. 

(i)  I  Leon.  43,  {k)  Swinb.  324. 

t  See  Dean  &c.  ofWindsor  v.  Cover,  2  Wins.  Sauntl.  301.  Gardiner  v.  Williamson,  2 
B.  &  Ad.  336.     Lord  Moiintjoy's  case,  .5  Co.  4.     Jewel's  case,  ib.  3. 

{I)  Kelw.  153  b.  1  And.  4.  Dyer,  56.  pi.  15,  16,  212.  pi.  37,  257,  38.  21.  E.  4.29,  a. 
3  Bulst.291.     9E.4,  l,b. 

(m)  2  Inst.  275.     4  Co.  81,  a.     1  Co.  2,  b.  Co.  Lit.  384,  a.     Yelv.  139.     Perk.  Sect.  124. 

(71)  4  Co.  81,  a.  Yelv.  139.  Co.  Lit.  .384,  a.  Perk.  Sect.  124.  Dall.  101.  Cr.  Jac.  73. 
2Inst.  27f).     F.  N.  B.  134,  h.  Hob.  12.     1   Vent.  44.    1  Rol.  521. 

(0)  2  Rol.  743. 


spencer's   case.  105 

houses  during  the  term,  the  womaa  marries  and  dies,  the  husband  shall  have 
an  action  of  covenant  as  well  on  the  covenant  in  law  on  these  words  (demise 
or  grant  as  on  the  express  covenant.  The  same  law  is  of  tenant  by  statute- 
merchant  or  statute-staple  or  elegit  of  a  term,  and  he  to  whom  a  lease  for 
years  is  sold  by  force  of  an  execution  shall  have  an  action  of  covenant  in 
such  case  as  a  thing  annexed  to  the  land,  although  they  come  to  the  term  by 
act  in  law ;  as  if  a  man  grant  to  lessee  for  years,  that  he  shall  have  so  many 
estovers(p)  as  will  serve  to  repair  his  house,  or  as  he  shall  burn  in  his  house, 
or  the  like,  during  the  term,  it  is  as  appurtenant  to  the  land,  and  shall  go 
with  it  as  a  thing  appurtenant,  into  whose  hands  soever  it  shall  come. 

6.  If  lessee  for  years  covenants  to  repair  the  houses  during  the  term,(2') 
it  shall  bind  all  others  as  a  thing  which  is  appurtenant,  and  goeth  with  the 
land  in  whose  hands  soever  the  term  shall  come,  as  well  those  who  come  to 
it  by  act  in  law,  as  by  the  act  of  the  party,  for  all  is  one  having  regard  to 
the  lessor.  And  if  the  law  should  not  be  such,  great  prejudice  might  accrue 
to  him  ;  and  reason  requires  that  they,  who  shall  take  benefit  of  such  cove- 
nant when  the  lessor  makes  it  with  the  lease,  should  on  the  other  side,  be 
bound  by  the  like  covenants  when  the  lessee  makes  it  with  the  lessor. 

7.  It  was  resolved,  that  the  assignee (r)  of  the  assignee  should  have  an 
action  of  covenant.  So  of  the  executors  of  the  assignee  of  the  assignee ;  so 
of  the  assignee  of  the  executors  or  administrators  of  every  assignee,  for  all 
are  comprised  within  this  word  {assignees^,  for  the  same  right  which  was 
in  the  testator,  or  intestate,  shall  go  to  his  executors  or  administrators  ;  as  if 
a  man  makes  a  warranty  to  one,  his  heirs  and  assigns,  the  assignee(s)  of  the 
assignee  shall  vouch,  and  so  shall  the  heirs  of  the  assignee ;  the  same  law 
of  the  assignee  of  the  heirs  of  the  feoffee,  and  of  every  assignee.  So  every 
one  of  them  shall  have  a  writ  of  Warrantia  Chartge.  Vide  14  E.  3,  Garr. 
33;  38  E.  3,  21 ;  36  E.  3,  Garr.  1;  13  E.  1,  Garr.  93  ;  19  E.  2,  Garr. 
85,  &c.  For  the  same  right,  which  was  in  the  ancestor,  shall  descend  *to 
the  heir  in  such  case  without  express  words  of  the  heirs  of  the  ^c)(>  -i 
assignees.  L 

Observe,  reader,  your  old  books,  for  they  are  the  fountains  out  of  which 
these  resolutions  issue ;  but  perhaps  by  these  differences  the  fountains  them- 
selves will  be  made  more  clear  and  profitable  to  those  who  will  make  use  of 
them.  For  example(<),  in  42  E.  3,  3,  the  case  is ;  grandfather,  father,  and 
two  sons.  The  grandfather  was  seised  of  the  manor  of  D.,  whereof  a  chapel 
was  parcel ;  a  prior,  with  the  assent  of  his  convent,  by  deed  covenanted  for 
him  and  his  successors,  with  the  grandfather  and  his  heirs,  that  he  and  his 
convent  would  sing  all  the  week  in  his  chapel,  parcel  of  the  said  manor,  for  the 
lords  of  the  said  manor  and  his  servants,  &c.  The  grandfather  did  enfeoff  one 
of  the  manor  in  fee,  who  gave  it  the  younger  son  and  his  wife  in  tail ;  and 
it  was  adjudged,  that  the  tenants  in  tail  as(w)  terretenants  (for  the  elder 
brother  was  heir),  should  have  an  action  of  covenant  against  the  prior,  for  the 

{p)  5  Co.  24,  b.  F.  N.  B.  181,  n. 

(7)  5  Co.  16,  a.  b.    5  Co.  24,  b.    Cr.  Jac.  240,  309,  439.     IJones,  223.    Cr.  EI.  373. 
1  Sid.  157. 
(r)  1  Roll.  521.     1  Roll.  Rep.  81,  82.    2  Bulst.  281.    Owen,  151, 152. 
(s)  Cr.  El.  534.    Co.  Litt.  384,  b. 

(t)  Co  Lit  384.  a.     1  Rol.  520,  521.    Br.  Covenant  5,    Stathem  Covenant,  3. 
(u)  Co.  Lit.  385,  a.    8  Co.  145,  a. 


lOG  smith's   leading  cases. 

covenant  is  to  do  a  thing  wbicli  is  annexed  to  the  chapel,  which  is  vrithin 
the  manor,  and  so  annexed  to  the  manor,  as  it  is  there  said.  And  Finchden 
related,  that  he  had  seen  it  adjudged,  that  two(r)  coparceners  made  partition 
of  land,  and  one  did  covenant  with  the  other  to  acquit  him  of  suit,  which 
was  due,  and  that  coparcener  to  whom  the  covenant  was  made  did  alien, 
and  the  suit  was  arrear ;  and  the  feoffee  brought  a  writ  of  covenant  against 
the  coparcener  to  acquit  him  of  the  suit ;  and  the  writ  was  maintainable, 
notwithstanding  he  was  a  stranger  to  the  covenant,  because  the  acquittal  fell 
upon  the  land ;  but  if  such  covenant  were  made  to  say  divine  service  in 
the('ir)  chapel  of  another,  there  the  assignee  shall  not  have  an  action  of  cove- 
nant, for  the  covenant  in  such  case  cannot  be  annexed  to  the  chapel, 
because  the  chapel  doth  not  belong  to  the  covenantee,  as  it  is  adjudged  in(x) 
2  H.  4,  6,  b.  But  there  it  is  agreed,  that  if  the  covenant  had  been  with 
the  lord  of  the  manor  of  D.  and  his  heirs,  lords  of  the  manor  of  D.,  and 
inhabitants  therein,  the  covenant  shall  be  annexed  to  the  manor,  and 
there  the  terretenant  shall  have  the  action  of  covenant  without  privity  of 
blood.  Vide  29  E.  3,  48,  and  30  E.  3,  14.  Simpkin  Simeon's  case,(?/) 
where  the  case  was,  that  the  Lady  Bardolf  by  deed  granted  a  ward  to  a 
woman  who  married  Simpkin  Simeon,  against  whom  the  Queen  brought  a 
P  ^i^j  ,  *writ  of  right  of  ward,  and  they  vouched  the  Lady  Bardolf,  and 
L  "^  J  afterwards  the  wife  died,  by  which  the  chattel(2)  real  survived  to 
the  husband,  (and  resolved  that  the  writ  should  not  abate),  the  vouchee 
appeared  and  said,  what  have  you  to  bind  me  to  a  warranty  ?  The  husband 
showed,  how  that  the  lady  granted  to  his  wife,  before  marriage,  the  said 
ward;  the  vouchee   demanded  judgment  for  two  causes. 

1.  Because  no  word  of  warranty  was  in  the  deed;  as  to  that  it  was 
adjudged,  that  this  word(a)  (fjrant),  in  this  case  of  grant  of  a  ward  (being  a 
chattel  real),  did  import  in  itself  a  warranty. 

2.  Because  the  husband  was  not  assignee  to  the  wife,  nor  privy.  As  to 
that  it  was  adjudged,  that  he  should  vouch,  for  this  warranty  implied  in  this 
word  {nrarW^j  is  in  case  of  a  chattel  real  so  annexed  to  the  land,  that  the 
husband  who  comes  to  it  by  act  in  law,  and  not  as  assignee,  should  take 
benefit  of  it.  But  it  was  resolved  by  Wray,  Chief  Justice,  and  the  whole 
court,  that  this  word  (concessi  or  demid),  in  case  of(Z^)  freehold  or  inheritance, 
doth  not  import  any  warranty;  11  H.  6,  45,  acc\  Vide  6  H.  4;  12  H.  4,  5; 
1  H.  5.  2  ;  25  H.  8. ;  Covenant,  Br.  32 ;  28  H.  8  ;  Dyer,  28  ;  48  E.  3.  22  ; 
F.  N.  B.  145;  C.  146  &  181;  9  Eliz.  Dyer,  257;  26  H.  8.  3  ;  5  H.  7, 
18;  32  H.  6,  32  ;  22  H.  6,  51;  18  H.  3  ;  Covenant  30;  OldN.  B.  Cove- 
nant, 46  H.  3,  4 ;  38  E.  3,  24.  See  the  statute  of(c)  32 ;  H.  8,  Cap.  34 ; 
which  act  was  resolved  to  extend  to  covenants  which  touch  or  concern  the 
thing  demised,  and  not  to  collateral  covenants. 

(t))  ]  Roll.  521.  Co.  Lit.  384,  b.  3S5,a.  42  E.  3,  3  b.  Br.  Covenant,  5.     1  Roll.  Rep.  81. 

(w)  1  Roll.  321. 

(X)  Co.  Lit.  3c*5,  a.     Fitz.  Covenant  13.     Br.  Covenant  17.     F.  N.  B.  181,  a. 

(j,)  Co  Lit.  384,  a.  2  Roll.  743,  744.  3  Bulst,  165.  Ilob.  47.  1  Rol.  Rep.  81,  Cr. 
El.  430. 

(2)  1  Rol.  345.    Co.  Lit.  351.  a.  («)  Co.  Lit.  384,  a.  101,  b. 

(6)  Co.  Lit.  384,  a. 

(c)  32  IL  8  c.  34.  Moor,  159.  Cr.  Jac.  523.  2  Bulst.  281,  282,283.  1  Sand.  238, 
239.Cr.  Car.  25, 222.^  1  Anders.  82.  2  Jones,  152.  Owen,  152.  Stile,  316,  317.  Co. 
Lit.  215,  a. 


spencer's  case. 


107 


This  is  the  leading  case  referred  to 
upon  every  question  whether  a  particu- 
lar covenant  does  or  does  not  run  with 
particular  lands,  or  a  particular  rever- 
sion. 

A  covenant  is  said  to  run  with  land, 
when  either  the  liability  to  perform  it, 
or  the  right  to  take  advantage  of  it, 
passes  to  the  assignee  of  that  land.  A 
covenant  is  said  to  run  with  the  rever- 
sion, when  either  the  liability  to  perform 
it,  or  the  right  to  take  advantage  of  it, 
passes  to  the  assignee  of  that  reversion. 

Questions  upon  this  branch  of  the  law 
generally  arise  between  the  lessor  of 
lands  or  his  assignee,  and  the  lessee 
thereof  or  his  assignee ;  and  we  will, 
tiierefore,  briefly  consider  the  subject 
with  reference  to  persons  holding  those 
characters,  before  inquiring  into  it  with 
reference  to  persons  not  occupying  those 
relations  to  each  other. 

An  opinion  has  sometimes  been  inti- 
mated that  there  were,  even  at  common 
law,  some  covenants  which  ran  with  the 
reversion.  The  authorities,  however, 
seem  to  preponderate  in  favour  of  the 
doctrine  of  Serjeant  Williams,  who,  in 
r  ^oQ  -|  Thursby  v.  Plant,  1  Wms.  Saund. 
L  ^o  J  240,  *n.  3,  says  that  "the  better 
opinion  seems  to  be,  that  the  assignee  of 
the  reversion  could  not  bring  an  action 
of  covenant  at  common  law."  And  the 
cases  will  be  best  reconciled,  and  the 
whole  subject  rendered  far  more  intelli- 
gible, if  we  adopt  the  view  taken  by  the 
learned  and  eminent  personages  who 
have  since  edited  that  work,  vol.  1,  240, 
a.  n.  0.  viz.  "  that  at  common  law  cove- 
nants ran  with  the  land,  hut  not  loith  the 
reversion.  Therefore  the  assignee  of 
the  lessee  was  held  to  be  liable  in  cove- 
nant and  to  be  entitled  to  bring  covenant, 
but  the  assignee  of  the  lessor  was  not." 

Such  being  the  state  of  the  common 
law,  St.  32  H.  8,  cap.  34,  after  reciting 
among  other  things,  "  that  by  the  com- 
mon law  no  stranger  to  any  covenant 
could  take  advantage  thereof,  but  only 
such  as  were  parties  or  privies  thereun- 
to," proceeded  to  enact  "  that  all  persons 
and  bodies  politic,  their  heirs,  successors 
and  assigns,  having  any  gift  or  grant  of 
the  king  of  any  lands  or  other  heredita- 
ments, or  of  any  reversion  in  the  same, 
which  belonged  to  any  of  the  monaste- 
ries, &c.,  dissolved,  or  by  any  other 
means  come  to  the  king's  hands,  since 
ihe  4th  day  of  February,  1535,  or  which 
at  any  time  before  the  passing  of  this 
act  belonged  to  any  other  person,  and 


after  came  to  the  hands  of  the  king,  and 
all  other  persons  being  grantees  or  assig- 
nees to  or  by  the  king,  or  to  or  by  any 
other  persons  than  the  king,  and  their 
heirs,  executors,  successors,  and  assigns, 
shall  have  like  advantages  against  the 
lessees,  their  executors,  administrators, 
and  assigns,  by  entry  for  non-payment  of 
the  rent,  or  for  doing  waste  or  other  for- 
feiture, and,  by  action  only,  for  not  per- 
forming other  conditions,  covenants,  or 
agreements  expressed  in  the  indentures 
of  leases  and  grants  against  the  said  les- 
sees and  grantees,  their  executors,  ad- 
ministrators, and  assignees,  as  the  said 
lessors  and  grantors,  their  heirs,  or  suc- 
cessors, might  have  had." 

Section  2  enacted,  "  that  all  lessees 
and  grantees  of  lands,  or  other  heredita- 
ments, for  terms  of  years,  life  or  lives, 
their  executors,  administrators,  or  as- 
signs, shall  have  like  action  and  remedy 
against  all  persons  and  bodies  politic, 
their  heirs,  successors  and  assigns,  hav- 
ing any  gift  or  grant  of  the  king,  or  of 
any  other  pbrsons,  of  the  reversion  of  the 
said  lands  and  hereditaments  so  letten, 
or  any  parcel  thereof,  for  any  condition 
or  covenant  expressed  in  the  indentures 
of  their  leases,  as  the  same  lessees  might 
have  had  against  the  said  lessors  and 
grantors,  their  heirs  and  successors," 

[Leases  not  under  seal  are  not  within 
the  meaning  of  this  statute.  Brydges  v. 
Lewis,  3  Q.  B.  603 ;  Standen  v.  Christ- 
mas, 10  Q.  B.  135.] 

Although  the  words  of  this  act  are 
very  general,  and  taken  literally  would 
comprehend  every  covenant  expressed 
in  the  lease  ;  yet  it  is  settled,  as  we  are 
informed  in  the  principal  case  adfinem, 
that  it  extends  only  to  covenants  which 
touch  and  concern  the  thing  demised, 
and  not  to  collateral  covenants.  See 
also  Webb  v.  Russell,  3  T.  R.  402;  1 
Inst.  2L5,  b. ;  Shepp.  Touch.  176.  It  is 
also  settled,  that  an  assignee  of  part  of 
the  reversion,  e.  g.  for  years,  is  an  assig- 
nee within  the  meaning  of  the  act,  1 
Inst.  215,  a.  Kidwelly  v.  Brand,  Plowd. 
72  ;  [Wright  v.  Burroughes,  4  Dowl.  & 
L.  438 ;]  and  so  also  is  the  assignee  of 
the  reversion  in  part  of  the  land,  as  far 
as  covenants  are  concerned,  Twynam  v. 
Pickard,  2  B.  &l  A.  105;  [Simpson  v. 
Clayton,  4  N.  C.  758,  780  ;  6  Scott,  409, 
S.  C.] ;  though  he  is  not  so  for  the  pur- 
pose of  availing  himself  of  conditions, 
for  they  cannot  be  apportioned  by  the 
act  of  the  party :  see  Dumpor's  case, 
ante,  and  the  notes  thereto ;  and  see  Doe 


108 


SMITHS    LEADING    CASES. 


d.  B.  (le  Riitzen  v.  Lewis,  5  A.  &  E.  277. 
[So  is  the  assi<Tiiee  of  the  term  in  part  of 
tlio  land,  Palmer  v.  Edwards,  Doug. 
1:21  ;  and  see  'i'wynam  v.  Pickard,  the 
jiidjrmcnts,  2  Wins.  Saund,  181  d.]  A 
grantee  of  the  reversion  in  copyhold 
lands  is  an  assignee  within  tiie  meaning 
of  the  statute.  Glover  v.  Cope,  3  Lev. 
32G;  Skinner,  305,  S.  0.;  VVhitton  v. 
Peacock,  3  Myl.  &  K.  325 ;  and  where 
lands  wi>re  devised  to  A.  for  life,  remain- 
der to  B.  for  life,  with  power  to  A.  to 
make  leases,  and  A.  made  a  lease  to  C. 
and  died  during  the  term  demised,  it 
was  held  that  B.  should  sue  upon  the 
covenants.  Isherwood  v.  Oldknow,  3  M. 
&  S.  382.  See  too  Rogers  v.  Humphrey, 
4  A.  &  E.  299.  "The  question,"  said 
Le  Blanc,  J.,  "  is — Is  the  plaintiff  an 
assignee  1  lie  is  the  person  next  in  re- 
mainder to  the  person  granting  the 
lease  :  true,  he  is  not  assignee  of  the  les- 
sor, he  is  assignee  of  the  devisor.  But 
I  take  it  to  be  clear  that  the  lease  must 
be  considered  as  emanating  from  the 
person  who  creates  the  power,  and  that 
it  derives  its  force  and  authority  from 
him.  The  argument  is,  that  he  cannot 
have  this  action  because  he  must  be  as- 
signee of  the  person  of  the  lessor  or 
grantor.  But  he  is  the  assignee  of  the 
person  who,  in  the  eye  of  the  law,  is  the 
lessor :  because  the  person  empowering 
the  tenant  for  life  to  grant  the  lease  is, 
r*2Q  -|  in  the  eye  of  the  law,  *the  lessor. 
'-  ^  The  doctrine  of  Lord  Coke  in 
Whitlock's  case,  entitles  the  court  to  say 
upon  principle,  that  this  plaintiff  was  the 
assignee  of  him  who,  in  contemplation  of 
law,  was  the  lessor,  and  that  as  such,  he 
is  entitled  to  this  action."  [It  seems, 
that  a  tenant  from  year  to  year,  who 
demises  by  indenture  for  a  term  of  years 
however  long,  has,  by  reason  of  the  pos- 
sibility of  his  estate  continuing  longer 
than  the  demised  term,  a  reversion  with 
which  the  benefit  of  the  covenants  in  the 
indenture  may  pass  to  an  assignee  dur- 
ing the  existence  of  the  tenancy  from 
year  to  year.  Oxley  v.  James,  13  M.  & 
W.  209.] 

Both  the  benefit  and  burden  of  cove- 
nants, therefore,  now  run  with  the  rever- 
sion from  assignee  to  assignee,  in  the 
same  manner  that  they  ran  at  common 
law  from  assignee  to  assignee  of  the 
land.  In  order,  however,  that  the  cove- 
nants might  continue  available  for  the 
benefit  of  the  reversioner,  it  was  held  to 
be  absolutely  necessary  that  he  should 
continue  to  be  seised  or  possessed  of  the 


same  reversion  to  which  the  covenants 
were  incident;  for,  if  it  happened  to 
be  merged  by  his  becoming  the  owner  of 
some  other  reversion  in  the  same  land, 
the  covenants  were  altogether  gone. 
Thus  in  Moor,  94,  a  person  made  a  lease 
for  100  years,  the  lessee  made  an  under- 
lease for  20  years,  rendering  rent,  with 
a  clause  of  re-entry  ;  afterwards  the 
original  lessor  granted  the  reversion  in 
fee,  and  the  grantee  purchased  tiie  rever- 
sion of  the  term.  It  was  held  that  the 
grantee  should  not  have  either  the 
rent  or  the  power  of  re-entry,  for  the 
reversion  of  the  term  to  which  they 
were  incident  was  extinguished  in 
the  reversion  in  fee ;  see  also  Webb 
V.  Russell,  3  T.  R.  402,  3.  [Wootton 
V.  Steffenoni,  12  M.  &  W.  132,  where 
Parke,  B.,  puts  the  question — If  tenants 
in  common  demise  their  undivided  inte- 
rests, and  there  is  a  joint  covenant  with 
both,  will  that  run  with  the  reversion  ?] 
One  of  the  consequences  of  the  above 
doctrine  was,  that  when  lands  were 
leased  with  a  stipulation  for  renewal, 
and  the  lessee  accepted  a  new  lease,  his 
remedy  for  rent  and  on  the  covenants 
contained  in  any  under-lease  he  might 
have  made  were  completely  gone,  since 
the  reversion  was  destroyed  to  which 
they  were  incident.  To  obviate  these 
evils,  St.  4  G.  2,  c.  28,  s.  6,  enacted,  that 
in  case  any  lease  shall  be  surrendered, 
in  order  to  be  renewed,  the  new  lease 
shall  be  as  valid,  to  all  intents,  as  if  the 
under-leases  had  been  likewise  surren- 
dered before  the  taking  of  the  new  lease  ; 
and  that  the  remedies  of  the  lessees 
against  their  under-tenants  shall  remain 
unaltered,  and  the  chief  landlord  shall 
have  the  same  remedy  by  distress  and 
entry  for  the  rents  and  duties  reserved 
in  the  new  lease,  so  far  as  the  same  ex- 
ceed not  the  rents  and  duties  reserved 
in  the  former  lease,  as  he  would  have 
had  in  case  such  former  lease  had  been 
still  continued.  See  on  the  construc- 
tion of  this  latter  provision.  Doe  d.  Palk 
v.  Marchetti,  1  B.  &  Ad.  715.  Note 
that  in  Aleyn,  39,  it  is  said  that  a  cove- 
nant is  not  a  duly.  [The  loss  of  the 
reversion  by  merger  has  now,  however, 
in  certain  cases,  ceased  to  operate  as  an 
extinguishment  of  the  rent  and  cove- 
nants, St.  8  &  9  Vict.  c.  106,  sec.  9,  hav- 
ing enacted  "  that  when  the  reversion 
expectant  on  a  lease,  made  either  before 
or  after  the  passing  of  this  act,  of  any 
tenements  or  hereditaments,  of  any 
tenure,  shall,  after  the  first  day  of  Octo- 


spencer's   case. 


109 


ber,  one  tliousand  eig^lit  hundred  and 
forty-five,  be  surrendered  or  merge,  ihe 
estate  which  shall  for  the  time  being, 
confer  as  against  the  tenant  under  the 
same  lease,  the  next  vested  right  to  the 
same  tenements  or  hereditaments,  shall, 
to  the  extent  and  for  the  purpose  of  pre- 
serving such  incidents  to,  and  obliga- 
tions on,  the  same  reversion,  as  but  for 
the  surrender  or  merger  thereof  would 
have  subsisted,  be  deemed  the  reversion 
expectant  on  the  same  lease."  See  the 
previous  act,  now  repealed,  7  &  8  Vict. 

c.  76,  s.  12.] 

Let  us  now  see  what  covenants  have 
been  decided  to  relate  to,  or,  in  the 
words  of  the  text,  touch  and  concern, 
the  land,  in  such  a  way  that  their  bene- 
fit or  burden  is  capable  of  running  with 
it.  On  this  subject  it  may  be  laid  down 
as  a  general  rule,  that  all  implied  cove- 
nants run  with  the  land.  Thus  it  was 
resolved  in  Spencer's  case,  4th  resolu- 
tion, "that  if  a  man  makes  a  lease  for 
years  by  the  word  concessi,  or  demisi, 
which  implies  a  covenant,  if  the  assignee 
of  the  lessee  be  evicted  he  shall  liave  a 
writ  of  covenant."  [Since  the  7th  & 
8th  Vict.  c.  76,  sec.  6,  8  &  9  Vict.  c. 
106,  sec.  4,  concessi  does  not  imply  a 
covenant.]  Whether  a  particular  ex- 
press covenant  sufficiently  "  touches  and 
concerns  the  thing  demised,"  to  be  cap- 
able of  running  with  the  land,  is  not 
unfrequently  a  question  of  difficulty. 
The  following,  however,  certainly  do  so. 
For  quiet  enjoyment,  Noke  v.  Awder, 
Cro,  Eliz.  436 ;  Campbell  v.  Lewis,  3 
B.  &  A.  392.  Further  assurance,  Mid- 
dlemore  v.  Goodale,  Cro.  Car.  503; 
Renewal,  Roe  v.  Hayley,  12  East,  464 ; 
[Simpson  v.  Clayton,  4  N.  C.  758.]  To 
repair.  Dean  and  Chapter  of  Windsor's 
case,  .5  Rep.  24,  and  the  principal  case. 
[To  leave  possession  peaceably  to  the 
lessor  and  his  assigns,  or  to  leave  in 
good  repair.  Semble  Vin.  Abr.  Cove- 
nant, K.  19  ;  but  see  per  Parke,  B.,  Doe 

d.  Strode  v.  Seaton,  2  C.  M.  &  R.  730.] 
To  discharge  the  lessor,  de  omnibus 
oneribus  orJinariis  et  extraordinariis. 
Dean  and  Chapter  of  Windsor's  case,  5 
Rep.  2.5.  To  permit  the  lessor  to  have 
free  passage  to  two  rooms  excepted  in 
the  demise.  Cole's  case,  1  Sal.  196,  re- 
ported as  Bush  V.  Cales,  1  Show.  389 ; 
Carth.  232.  To  cultivate  the  lands  de- 
mised in  a  particular  manner,  Cockson 
V.  Cock,  Cro.  Jac.  125.  To  reside  on 
the  premises,  [admitted  by  the  Court  in] 
Tatem  v.  Chaplin,  2  H.  Bl.  133.     [See 


1  Rolle  Abr.  521  {I),  and  see  the  cases 
cited  in  the  note  to  Ilinde  v.  Gray,  1  M. 
&  Gr.  208.]  Not  to  carry  on  a  parti- 
cular trade,  Mayor  of  Congleton  v.  Pat- 
tison,  10  East,  136.  A  covenant  to  keep 
buildings  within  the  bills  of  mortality 
insured  against  fire  was  in  Vernon  v. 
Smith,  5  B.  &  A.  1,  held  to  run  with 
the  land,  for  st.  14  G.  3,  c.  78,  enables 
the  landlord  to  have  the  sum  insured 
employed  in  reinstating  the  premises,  so 
that  the  covenant,  with  the  aid  of  the 
statute,  amounts  to  a  covenant  to  repair. 
In  Vyvyan  v.  Arthur,  1  B.  &  C.  415, 
the  lessee  covenanted  to  grind  at  the 
lessor's  mill,  called  Tregan)ere  Mill,  all 
such  corn  as  should  grow  upon  the  close 
demised.  This  covenant  was,  in  an  ac- 
tion brought  by  the  devisee  of  the  lessor 
against  the  administratrix  of  the  r  ^.i^.  -, 
*lessee,  held  to  run  with  the  '-  '  J 
land,  at  all  events  so  long  as  the  mill 
remained  the  property  of  the  rever- 
sioner. Fn  Easterby  v.  Sampson,  9  B. 
&  C.  505,  and  6  Bmg.  644,  where  an 
undivided  third  part  of  certain  mines 
was  leased ;  and  the  lease  contained  a 
covenant  by  the  lessee  that  he  and  his 
assigns  should  build  a  new  smelting 
mill,  and  keep  it  in  order  for  working 
the  mines;  this  covenant  was  held,  first 
by  the  King's  Bench,  and  afterwards  in 
the  Exchequer  Chamber,  to  run  with  the 
lands.  [In  Hemmingway  v.  Fernandes, 
13  Sim.  228,  A.  agreed  to  make  a  lease 
of  certain  land,  to  B.,  who  was  the  les- 
see of  a  colliery,  B.  covenanting  for 
himself  a?2d  his  assigns  to  make  a  rail- 
way over  the  land,  and  to  carry  thereon 
all  coal  gotten  out  of  the  colliery,  or 
any  other  land  in  the  same  township, 
that  should  be  intended  for  shipment  or 
water  sale,  paying  for  the  carriage  2d. 
per  ton.  B.  made  the  railway  and  after- 
wards assigned  his  interest  in  the  land 
agreed  to  be  demised  and  the  colliery 
to  C,  who  also  worked  other  collieries 
in  the  township.  The  Vice-Chancellor 
is  reported  to  have  held  that  the  case 
fell  within  the  second  resolution  in 
Spencer's  case,  and  that  the  covenant 
ran  with  the  land  and  bound  the  as- 
signee.] 

The  liability  of  the  lessee  to  be  sued 
on  his  express  covenants,  is  not  deter- 
mined by  his  assigning  over  his  term, 
and  the  lessor's  acceptance  of  his  as- 
signee. Barnard  v.  Godscall,  Cro.  Jac. 
309 ;  Thirsby  v.  Plant,  1  Wms.  Saund. 
240,  et  notas ;  but  he  may  be  sued  on 
them  either  by  the  lessor  or  [if  he  have 


110 


smith's    leading  cases. 


assigned  by]  liis  assignee;  Brett  v. 
Cumberland,  Cro.  Jac.  521,  2;  and  so 
may  his  personal  representative  having 
assets,  ibid.  Hellier  v.  Casbard,  1  Sid. 
266;  1  Lev.  127;  Coghill  v.  Freelove, 
3  Mod.  325;  2  Vent.  209;  Pitcher  v. 
Tovev,  4  Mod.  76 ;  and  the  Notes  to 
Thirsby  v.  Plant,  1  Wms.  Saund. 
241.  But  though  the  lessee  may,  after 
he  has  assigned  and  his  assignee  lias 
been  accepted,  be  sued  on  his  express 
covenants,  it  is  said  he  cannot  be  so  on 
his  implied  ones.  Batcheleurv.  Gage,  1 
Sid.  447;  Sir  \V.  Jones,  223;  see  Mills 
v.  Auriol,  4  T.  R.  9S ;  1  Wms.  Saund. 
241,  in  notis;  [Williams  v.  Burrell,  1 
C.  B.  402].  Sed  quare  de  hoc.  Nor 
will  any  action  of  covenant  lie  against 
the  assignee  of  the  lessee,  except  for 
breaches  of  covenant  happening  while 
he  is  assignee,  and  therefore  an  assignee 
may  get  rid  of  his  future  liability  by 
assigning  even  to  a  mere  pauper.  Tay- 
lor v.  Shum,  1  B.  &  P.  21 ;  Le  Keux  v. 
Nash,  Str.  1222;  Odell  v.  Wake,  3 
Camp.  394;  Onslow  v.  Corrie,  2  Madd. 
330;  though  not  of  his  liability  lor 
breaches  already  committed  during  the 
continuance  of  his  interest.  Harley  v. 
King,  5  Tyrwh.  692. 

[It  has  been  made  a  question  whether, 
in  cases  in  which  the  right  of  action  is 
given  to  the  assignee  by  32  H.  8,  c.  34, 
the  original  covenantee  may  not  still 
sue.  The  better  opinion  is,  that  he  can- 
not. See  Beeley  v.  Purry,  3  Lev.  154, 
where  the  point  was  however  not  decid- 
ed. It  appears  to  have  been  taken  for 
granted  in  Green  v.  James,  6  M.  &  W. 
656.  And  the  cases  which  have  settled 
that  the  statute  transfers  the  privity  of 
contract,  militate  strongly  against  the 
existence  of  any  right  in  the  original 
covenantee.  See  Thursby  v.  Plant,  1 
Wms.  Saund.  240.] 

Next,  as  to  covenants  running  with 
the  lands  in  other  cases  than  those  be- 
tween landlord  and  tenant.  These 
may  be  divided  into  the  two  following 
classes : — 

1.  Covenants  made  wilh  the  owner  of 
the  land  to  which  they  relate. 

2.  Covenants  made  by  the  owner  of 
the  land  to  which  they  relate. 

With  respect  to  the  former  of  these 
classes,  viz.  covenants  made  ii:ith  the 
owner  of  the  land  to  which  they  relate, 
there  seems  to  be  no  doubt  that  the 
benefit,  i.  e.  the  right  to  sue  on  such 
covenants,  runs  with  the  land  to  each 
successive  transferee  of  it,  provided  that 


such  transferee  be  in  of  the  same  estate 
as  the  original  covenantee  was.  Of  this 
description  are  the  ordinary  covenants 
for  title  ;  see  Middlemore  v.  Goodale,  1 
Roll's  Ab.  521  ;  K.  PI.  6.  Cro.  Car. 
503,  505,  Sir  W.  Jones,  406;  Shepp. 
Touch.  171 ;  [Kingdon  v.  Nottle,  4  M. 
&  S.  53];  Campbell  v.  Lewis,  3  B.  & 
A.  392;  Lewis  v.  Campbell,  8  Taunt. 
715;  which  latter  case,  as  well  as  Noke 
v.  Awder,  Cro.  Eliz.  373,  436,  shows 
that  there  is  no  difference  between  the 
right  of  an  assignee  of  freehold,  and  that 
of  the  assignee  of  a  chattel  real,  to  sue 
on  covenants  running  with  the  land. 
Of  this  description  also  is  the  case  of  the 
Prior  reported  in  the  text,  that  of  the 
two  Coparceners,  and  the  anonymous 
case  in  Moor,  179,  cited  by  Littledale, 
arguendo,  iu  Milnes  v.  Branch,  5  M.  & 
S.  417. 

In  all  these  cases  the  covenant  is  for 
something  relating  to  I  he  land,  and  the 
assignee  of  the  land  is  the  person  enti- 
tled to  sue  upon  it.  See  Middlemore  v. 
Goodale,  1  Roll's  Abr.  521 ;  Spencer  v. 
Boyes,  4  Ves.  370. 

When  such  a  covenant  is  made,  it 
seems  to  be  of  no  consequence,  whether 
the  covenantor  be  the  person  who  con- 
veyed the  land  to  the  covenantee,  or  be 
a  mere  stranger.  •  Thus  in  the  Prior's 
case,  reported  in  the  text,  and  in  Co. 
Litt.  3S4  b.,  the  Prior  was  a  stranger  to 
the  land  of  the  covenantee ;  and  there  is 
a  good  reason  for  this  assigned  in  the 
above  passage  in  Co.  Litt.,  where  the 
law  is  said  to  be  so,  to  give  damages  to 
the  jiarty  grieved  ;  in  other  words,  in 
order  that  the  person  who  is  injured  by 
the  non-performance  of  the  covenant, 
who  is  always  the  owner  of  the  land 
jtro  tempore,  may  be  also  the  person  en- 
titled to  the  remedy  upon  it  by  action. 
Indeed  Middlemore  v.  Goodale,  Noke  v. 
Awder,  and  Campbell  v.  Lewis  above 
cited,  were  all  cases  in  which  the  cove- 
nantor was  also  the  person  who  con- 
veyed the  land  to  the  covenantee ;  and 
Sir  Edward  Sugden,  in  the  Law  of  Ven- 
dors and  Purchasers,  express  an  opinion, 
that  to  enable  the  assignee  of  land  to 
take  advantage  of  covenants  they  must 
have  been  entered  into  by  a  prior  owner 
thereof  This,  however,  is  contrary  to  the 
Prior's  case  in  the  text,  contrary  to  the 
case  of  the  Coparceners,  contrary  r  *oi  -i 
also  *to  the  anonymous  case  in  ^  -' 
Moor,  179,  and  to  the  opinion  of  the  Real 
Property  Commissioners,  expressed  in 
their  3rd  report;  and  Sir  Edward  Sugden 


spencer's   case. 


Ill 


himself  declares  that  the  consequences 
of  applying  such  a  doctrine  to  covenants 
entered  into  by  a  vendor,  who  is  often 
only  a  mortgagor,  or  cestui/  que  trust, 
would  be  most  alarming.  See  a  learned 
Note  in  "Jarman's  Bythewood,"  vol.  7, 
pages  572,  3,  [vol.  9,  page  354,  of  Mr. 
Sweet's  edition.] 

'  It  would  be  wrong  to  omit  mentioning 
that,  since  the  publication  of  the  first 
edition  of  this  work,  a  case  has  occurred 
in  the  Court  of  Exchequer,  bearing  in 
some  degree  upon  the  above  proposition. 
I  allude  to  Raymond  v.  Fitch,  5  Tyrwh. 
985,  in  which  the  question  was,  whether 
the  executors  of  one  who  had  demised 
land,  excepting  the  trees,  (the  circum- 
stance that  the  trees  were  excepted  does 
not  appear  in  the  statement  of  the  case, 
but  is  to  be  collected  from  the  observa- 
tions of  the  counsel  and  judges.  See 
page  991  ad  finem,  and  the  judgment,) 
could  sue  upon  a  covenant  not  to  fell  or 
lop  them,  which  had  been  broken  during 
the  testator's  lifetime.  It  was  argued 
on  behalf  of  the  defendant,  that  where  a 
covenant  runs  with  the  land  and  de- 
scends to  the  heir,  though  there  may 
have  been  a  formal  breach  in  the  testa- 
tor's lifetime,  still,  if  the  substantial 
damage  happened  after  his  death,  the 
real,  not  the  personal,  representative 
ought  to  be  plaintiff.  See  Kingdon  v. 
Nottle,  I  M.  &  S.  355 ;  4  M.  &  S.  53 ; 
King  V.  Jones,  5  Taunt.  418.  Lord 
Abinger,  however,  delivering  the  judg- 
ment of  the  court,  distinguished  those 
cases  by  saying,  "There  is  no  doubt 
that  ihe  covenant  here  is  purely  colla- 
teral and  does  not  run  with  the  land :" 
and  he  added,  "  for  the  breach  of  such 
a  covenant  after  the  death  of  the  cove- 
nantee, the  heir  or  devisee  of  the  land 
on  which  the  trees  grew  could  not  sue." 
His  Lordship  does  not  state  whether  he 
based  this  opinion  on  the  ground  that  the 
covenant  not  to  cut  down  the  trees  did 
not  sufficiently  touch  and  concern  the 
land,  or  whether,  on  the  ground  that  the 
benefit  of  a  covenant  made  by  a  stranger 
(which  the  lessee  was  quoad  the  trees) 
was  incapable  of  running  with  the  land 
to  which  it  related,  to  the  heir  or  devisee 
thereof.  The  point  was  not  necessary 
for  tiie  decision  of  the  case  before  their 
lordships,  for  the  court  appears  to  have 
been  of  opinion  that  the  loss  of  the  shade 
and  casual  profits  of  the  trees  during  the 
testator's  lifetime  was  a  sufficient  injury 
to  the  personal  estate  to  vest  a  right  of 
action  in  his  executor;  and  it  seems  un- 


fortunate, therefore,  that  \.\\q  dicta  in  the 
case  should  have  tended  to  cast  any  ad- 
ditional doubt  on  a  doctrine  so  highly 
reasonable  as  that  the  right  of  action 
upon  a  covenant  touching  and  benefiting 
tlie  land,  shall  devolve  along  with  the 
land  itself  to  each  successive  owner. 

But  though  it  be  not  necessary  that 
the  covenantor  should  be  in  any  wise 
connected  with  the  land,  it  is  absolutely 
essential  that  the  covenantee  sliould,  at 
the  time  of  the  making  of  the  covenant, 
have  the  land  to  which  it  relates.  On 
this  point  the  text  is  express,  viz.  "If 
the  covenant  were  to  say  divine  service 
in  the  chapel  of  another,  there  the  af- 
signee  shall  not  have  an  action  of  cove- 
nant, because  the  chapel  doth  not  belong 
to  the  covenantee ;  as  it  is  adjudged  in 

2  H.  4,  6,  b.;"  see  Co.  Litt.  384,  b., 
385,  a. ;  see  *\Vebb  v.  Russell,  3  r:^;.,,  -, 
T.  R.  393.  In  such  a  case,  how-  I  '^^'^\ 
ever,  the  covenantee  may  sue  though 
his  assignee  cannot.     Stokes  v.  Russell, 

3  T.  R.  678. 

It  has  been  above  stated,  that,  in 
order  that  the  assignee  may  sue  on  such 
a  covenant,  he  must  be  in  of  the  same 
estate  in  the  land  which  the  party  had 
with  whom  the  covenant  was  originally 
made,  for  the  covenant  is  incident  to 
that  estate.  This  rule  might  possibly 
be  productive  of  very  serious  and  dis- 
agreeable consequences ;  for  when  lands 
are  conveyed  (as  has  repeatedly  been 
done  for  the  purpose  of  barring  dower) 
to  such  uses  as  A.  shall  appoint,  and  in 
defaidt  of  appointment  to  A.  for  life 
remainder  to  B.,  his  executors  and  ad- 
ministrators, during  the  life  of  A.,  re- 
mainder to  A.  in  fee,  and  A.  exercises 
the  power  of  appointment  in  favour  of 
a  purchaser,  that  purchaser  comes  in 
paramount  to  A.,  and  above  the  estate 
of  which  he  was  seised,  which  is  defeat- 
ed by  the  exercise  of  the  power  as  if  it 
never .  had  existed.  There  is  conse- 
quently no  sameness  of  estate  between 
A.  and  the  purchaser,  which  latter  will 
therefore  not  be  entitled  to  the  benefit  of 
covenants  entered  into  with  A.,  since 
those  covenants  were  incident  to  the 
estate  which  has  now  been  defeated  by 
the  appointment:  see  Roach  v.  Wadham, 
6  East,  289.  To  obviate  this  evil,  it  is 
now  usual,  whenever  the  conveyance 
transfers  a  seisin  to  serve  uses, — as,  for 
instance,  when  it  is  by  way  of  feoffment, 
or  lease  and  release, — to  enter  into  the 
covenants  with  the  feoffee  or  releasee 
to  uses,  and  his  heirs,  the  consequence 


112 


SMITHS    LEADING     CASES. 


of  which  is  believed  to  be,  that  the  bene- 
fit of  the  covenants,  being  annexed  to 
the  seisin,  is  transferred  to,  and  in  a 
manner  executed  in,  the  various  persons 
who  become  from  time  to  time  entitled 
under  the  uses  which  that  seisin  serves. 
See  Sugd.  Gilb.  U.  186,  note. 

With  respect  to  the  second    of  the 
above   two   classes,  namely,  covenants 
entered  into  by  the  owners  of  land,  great 
doubt  exists  whether  these  in  any  case 
run  with  the  lands,  so  as  to  bind  the 
assigneesof  the  covenantor.    One  incon- 
venience which  would  be  the  result  of 
holding  them  to  do  so  is,  that  the  as- 
signee   would    frequently   find   himself 
liable  to  contracts  of  the  very  existence 
of  which  he  was  ignorant,  and  which 
perhaps  would  have  deterred  him  from 
accepting  a  conveyance  of  the  land,  if 
he  had  known  of  them :  and  the  reason 
assigned  in  the  first  Institute  for  allow- 
ing the  benefit  of  a  covenant  relating  to 
the  land  to  run  therewith,  viz.  to  give 
the  remedy  to  the  party  grieved,  does 
not  apply  to  the  question  respecting  the 
burden   thereof.     This  question   might 
have  arisen   in  Roach   v.    VVadham,   6 
East,   289.      There   John   Russ    being 
seised  of  an  undivided  third  part  of  a 
certain  messuage,  and  the  plaintiffs  of 
the  two  other  undivided  third  parts,  they 
conveyed  the  whole  to  Coates  and  his 
heirs,  to  such  uses  as  Watts  should  ap- 
point, and,  subject  thereunto,  to  the  use 
of  Watts  in  fee,  "yielding  and  paying, 
and  the  said  William  Watts,  and  by  his 
direction   the  said  T.   Coates,  did,  and 
each  of  them  did.  grant  out  of  the  said 
messuage  to  the  plaintiffs,  their  heirs 
and  assigns,  for  ever,  the  yearly  fee  farm 
rent  of  28Z.  payable  quarterly."     Then 
followed  a  covenant  by  Watts,  for  him- 
self, his  heirs  and  assigns,  to  pay  the 
rent  to  the  plaintifl^s,  their  heirs  and  as- 
signs.    Then  a  similar  rent  of  14/.  was 
reserved  to   Russ.      Watts  afterwards 
"granted,  bargained,  sold,  aliened,  re- 
leased, ratified,  and  confirmed,  and  did 
also   limit,    direct,    and  appoint,"    the 
premises  in  question  to  Wadham,  Ste- 
r*S2  1^^"^'   *^"^    Powell    (a  trustee), 
L        -■  habendum  to  Wadham,  Stevens, 
and   Powell,  and  the  heirs  and   assigns 
of  Wadham  and  Stevens,  as  tenants  in 
common,  subject   to   the   rent  of  4"2/., 
which  Wadham  and  Stevens  covenanted 
with  Watts  to  pay  in  equal  shares  and 
proportions.     Wadham  died,  leaving  the 
defendant  his  devisee  in  fee  and  execu- 
tor:  the   moiety   which   Wadham   had 


covenanted  to  pay  of  the  28/.  rent  be- 
came after  his  death  three  years  in  ar- 
rear;  and  this  action  having  been  brought 
for  the  recovery  of  those  arrears,  a  case 
was  ultimately  stated  for  the  opinion  of 
the  Court  of  King's  Bench,  the  question 
in  which  was  "  whether  the  defendant 
as  executor  or  devisee  of  the  testator 
Wadham  were  liable  at  law  to  an  action 
of  covenant  on  the  said  covenant  made 
by  Watts."  The  court  held  that  he  was 
not  liable,  for  that  the  conveyance  by 
Watts  to  Wadham,  Stevens,  and  Powell 
operated  as  an  appointment  under  the 
power  created  by  the  conveyance  from 
Russ  and  the  plaintiff  to  Coates,  and 
therefore,  even  supposing  the  covenant 
made  by  Watts  with  the  plaintiffs  to  be 
capable  of  running  with  the  land  and 
binding  Watts's  assignee,  still  it  could 
not  affect  Wadham,  who  was  not  privy 
in  estate  to  Watts,  but  came  in  para- 
mount to  him. 

Brewster  v.  Kitchell  is  another  case 
often  referred  to  on  this  question  :  it  is 
reported  in  Lord  Raym.  318 ;  Comb.  424, 
466;  1  Salk.  198;  12  Mod.  166;  Holt, 
175,  669;  with  the  arguments  of  coun- 
sel, 5  Mod.  368.     It  was  a  feigned  ac- 
tion on  a  wager,  whether  the  defendant 
had  a  right  to  deduct  4s.  in  the  pound 
out  of  a  rent-charge  granted  to  the  plain- 
tift''s  ancestor  out  of  certain   lands  in 
Bucks  of  which  the  defendant  was  terre- 
tenant,  which  tax  of  4s.  in  the  pound 
was  granted  in  4th  &  .5th  W.  &.  M.  Upon 
a  special  verdict  it  appeared,  that   R. 
Langford,   being   seised    in  fee  of  the 
manor   of   Balmore,   granted    to   Ellen 
Brewster  a  rent-charge  out  of  the  manor, 
to  her  and  her  heirs,  and  there  was  a 
covenant  for  further  assurance,  and  this 
memorandum  was  indorsed  on  the  deed, 
viz. :  "  It  is  the  true  intent  and  meaning 
of  these  presents,  that  the  within-named 
Ellen  Brewster,  and  her  heirs,  shall  be 
paid  the  said  rent-charge  without  de- 
ducting of  any  taxes  for  the  said  rent," 
&c.     Afterward,   R.    Langford,  on  the 
8th  of  July,  1652,  in  pursuance  of  the 
covenant  in  the  first  deed,  confirmed  the 
rent  to  Ellen  Brewster  and  her  heirs, 
and  covenanted  that  the  rent  should  be 
paid  at  two  certain  feasts,  free  of  all 
taxes.     The    report    proceeds   thus: — 
"  After  several  arguments.  Holt,  C.  J., 
pronounced  the  opinion  of  the  court,  and 
(by  him)  the  question  is,  upon  this  spe- 
cial verdict,  whether  the  covenant  in- 
dorsed upon  the  deed  of  the  2()th  of  Nov., 
1649,  or  the  covenant  in  the  deed  of  the 


SPEN  C  ER's     case. 


113 


8th  of  July,  1652,  be  sufficient  to  bind 
the  grantor  and  his  heirs  to  pay  the 
rent,  free  of  all  taxes  hereafter  to  be 
charged  on  it  by  Act  of  Parliament  7 
And  ail  tiie  judges  were  of  opinion,  that 
tliis  covenant  binds  the  grantor  and  his 
heirs  to  pay  the  rent,  free  of  4s.  in  the 
pound  tax."  Thus  far,  therefore,  the 
question  of  the  burden  of  the  covenant 
running  with  the  lands  does  not  appear 
to  liave  been  taken  into  consideration. 
However,  in  a  subsequent  part  of  his 
judgment,  the  report  proceeds  to  state, 
Lord  Holt  "  made  another  question, 
which  was  not  observed  at  the  bar,  nor 
by  any  of  the  other  judges,  viz. :  whe- 
ther the  terretenant  was  liable  to  an  ac- 
tion on  the  covenant,  a?i(Z /te  loas  of  opi- 
nion he  loas  not;  for  (by  him)  if  the 
tenant  in  fee  grants  a  rent-charge  out  of 
lands,  and  covenants  to  pay  it  without 
deduction,  for  himself  and  his  heirs,  you 
may  maintain  covenant  against  the  gran- 
tor and  his  heirs,  but  not  against  the 
assignee,  for  it  is  a  mere  personal  cove- 
nant, and  cannot  run  with  the  land.  And, 
for  a  case  in  point,  he  cited  Hardr.  87, 
pi.  5,  Coke  V.  Earl  of  Arundel.  There- 
fore, hence  it  does  not  appear  that  the 
defendant  is  bound  by  this  covenant,  for 
non  constat  whether  he  is  terretenant  or 
no,  or  what  he  is.  For  this  reason  he 
was  of  opinion,  that  judgment  ought  to 
be  given  for  the  defendant.  But  the 
other  three  judges  seemed  to  be  in  a 
surprise,  and  not  in  truth  to  comprehend 
this  objection,  and  therefore  they  per- 
sisted in  their  former  opinion,  talking  of 
agreements,  intent  of  the  party,  binding 
the  lands,  and  I  know  not  what.  They 
gave  judgment  for  the  plaintiff,  against 
the  opinion  of  Holt,  C.  J.,  for  the  reasons 
aforesaid."  The  above  account  is  ex- 
r  *'\i  -|  tracted,  verbatim,  from  Lord 
'-  -'  *Raymond.  The  account  of  the 
disagreement  between  Lord  Holt  and 
the  three  judges,  given  in  Salkeld,  is 
extremely  jejune^  being  comprised  in  a 
marginal  note  of  about  six  words.  But 
in  12th  Mod.  is  a  report  of  this  same 
case  of  Brewster  v.  Kitchell,  which,  if 
accurate,  and  there  seems  to  be  no  reason 
for  distrusting  it,  places  tlie  matter  in  a 
far  clearer  and  more  satisfactory  light. 
Lord  Holt  is  there  made  to  say,  in  deli- 
vering his  judgment,  "//*  this  rent  loas 
granted,  so  to  be  paid,  it  would  be  an- 
other matter,  but  here  it  is  only  a  cove- 
nant  and  no  words  amounting  to  a 
grant,  and  therefore  tliere  can  be  no  re- 
lief in  this  case  against  tlie  terretenant 
Vol.  I.— 8 


but  in  equity;  and  therefore,  for  tliis 
point,  I  cannot  see  how  the  plaintiff  can 
have  his  judgment,  for  if  this  covenant 
should  charge  the  land  it  would  be  high- 
er than  a  icarranlia  chartice,  which  only 
affects  the  land  from  judgment  therein 
given."  "  But  the  other  judges"  (says 
the  reporter)  "  thought  this  covenant 
might  charge  the  land,  being  in  the  na- 
ture of  a  grant,  or  at  least  a  declaration 
going  along  icith  the  grant,  showing 
in  ichat  manner  the  thing  granted 
should  be  taken:'  So  that  the  real  dif- 
ference between  Lord  Holt  and  the  three 
judges  appears  to  have  been,  not  whe- 
ther an  action  of  covenant  could  be  main- 
tained against  the  defendant  as  assignoc 
of  the  land,  but  wliether  that  which  Lord 
Holt  considered  a  covenant  was  not,  in 
reality,  part  of  the  grant ;  for,  if  it  were, 
tlie  plaintiff'  was  entitled  to  judgment 
beyond  all  dispute,  the  action  not  being 
one  of  covenant,  but  a  feigned  issue  to 
ascertain  the  net  amount  of  the  rent- 
charge.  So  that,  considering  the  case 
in  this  light,  there  is  Lord  Holt's  opinion 
that  a  covenant  to  pay  the  rent-charge 
would  not  run  with  the  land  ;  an  opinion 
from  which  none  of  the  other  judges  dis- 
sented, the  point  on  which  they  really 
differed  being,  whether  that  which  the 
Lord  Chief  Justice  considered  a  mere 
covenant,  was  not,  in  point  of  fact,  part 
and  parcel  of  the  grant;  in  which  case, 
Lord  Holt  himself  had  admitted,  that  "  it 
would  be  another  matter."  With  re- 
spect to  the  accuracy  of  the  report  in 
Mod.,  I  must  repeat,  that  there  seems 
little  reason  for  distrusting  it.  It  is  given 
at  considerable  length,  and  cannot  be 
said  to  disagree  with  that  of  Lord  Ray- 
mond, who  admits  that  he  had  no  distinct 
remembrance  of  the  grounds  on  which 
the  judges  based  their  dissent  from  Holt's 
opinion. 

In  Coke  v.  The  Earl  of  Arundel  (the 
case  cited  by  Lord  Holt  from  Hardress, 
reported  also  in  1  Abr.  l\  26),  the 
Duke  of  Norfolk  being  seised  of  Black- 
acre  and  Whileacre,  subject  to  a  certain 
rent,  granted  Blackacre  to  A.,  covenant- 
ing that  it  should  be  discharged  of  the 
rent,  and  granted,  afterwards.  White- 
acre  to  B.  A.  filed  a  bill  to  charge 
Whiteacre  with  the  whole  rent,  urging, 
that  the  covenant  ran  therewith,  and 
bound  B.  But  the  court  thought  the^ 
covenant  only  binding  on  the  Duke  of 
Norfolk  and  his  representatives,  and  dis- 
missed the  bill.  (See  Lord  Cornbury  v. 
Middlelon,  Cases  in  Chancery,  208.) 


114 


SMITHS  LEADING  CASES. 


The  case  of  Holmes  v.  Buckley,  1 
Abr.  Eq.  27,  is  another  case  thought  to 
bear  upon  this  point,  and  was  as  follows. 
A.,  and  R.,  his  wife,  being  seised  in 
rioht  of  R.  of  two  pieces  of  ground, 
granted  by  indenture  a  watercourse  to 
J.  11.  and  iiis  heirs,  through  the  said  two 
pieces  of  ground,  and  covenanted  for 
tliem,  their  heirs  and  assigns,  to  cleanse 
tJ;e  same;  and  that  ail  fines  and  reco- 
veries to  be  levied  or  suffered  of  the 
grounds  should  enure  to  the  strengthen- 
ing and  confirming  the  said  watercourse. 
Afterwards  a  recovery  was  had,  and  a 
deed  executed,  declaring  the  uses  to  be 
as  aforesaid.  The  watercourse,  by 
mesne  assignments,  came  to  the  plain- 
till,  and  the  two  pieces  of  ground  to  the 
defendant,  who  built  on  the  same,  and 
viuch  heightened  the  ground  which  lay 
over  the  loatercourse,  and  rendered  it 
much  more  chargeable  and  inconveni- 
ent to  repair ;  and,  as  it  was  alleged, 
and  in  part  proved,  the  building  had 
much  obstructed  the  loatercourse.  And 
so  the  bill  was  for  establishing  the  en- 
joyment of  the  watercourse,  and  that  the 
defendant,  and  all  claiming  under  him, 
might  from  time  to  time  cleanse  the 
game,  according  to  the  covenant.  It  was 
objected,  that  the  covenant,  being  a  per- 
gonal covenant,  was  not  at  all  strength- 
ened by  the  recovery ;  and  that  the 
plaintifi;  and  those  under  whom  he  claim- 
ed, being  sensible  of  it,  had  for  forty 
years  cleansed  the  same  at  their  own 
r  :fr04^  1  charges.  But  the  court  was  of 
-'  opinion,  *that  this  was  a  covenant 
which  ran  with  the  land,  and  was  made 
good  by  the  recovery ;  and  though  the 
plaintiff  had  cleansed  the  same  at  his 
own  charge,  while  it  was  easy  to  be  done, 
and  of  little  charge  ;  yet,  since  the  right 
was  plain  upon  the  deed,  and  the  clean- 
sing made  chargeable  by  the  building, 
it  was  reasonable  the  defendant  should 
do  it,  and  decreed  accordingly,  and  gave 
the  plaintiff  his  costs. 

It  will  be  observed  on  this  case,  that 
not  only  may  it  be  urged  here,  as  in 
Brewster  v.  Kitchell,  that  the  covenant 
was,  in  fact,  part  of  the  grant,  but  that, 
even  if  there  had  been  no  covenant,  the 
defendant  was  guilty  of  a  wrongful  act, 
when  he  obstructed  and  injured  the 
plaintiff's  watercourse,  subject  to  which 
he  took  his  own  estate,  and  of  the  exist- 
ence of  which  he  had  notice,  for  the  deed 
declaring  the  uses  of  the  recovery,  un- 
der which  deed  he  must  have  claimed, 
made  mention  of  the  previous  grant  of 


the  watercourse;  and  the  court  appears 
to  have  relied  upon  the  wrongful  ob- 
struction as  a  ground  of  its  decree,  as  is 
plain  from  the  words,  ^*  and  the  cleansing 
made  chargeable  by  the  building."  On 
the  other  hand,  if  the  effect  of  the  case 
be  taken  to  be,  that  the  court  thought 
the  covenant  one  on  which  an  action 
might  have  been  maintained  at  law  by 
the  plaintiff  against  the  defendant,  it 
seems  questionable  whether  it  do  not 
prove  too  much;  for,  as  both  the  parties 
were  assignees,  one  of  the  land,  and  the 
other  of  the  watercourse,  it  would,  in 
order  to  support  such  an  action  of  cove- 
nant, be  necessary  to  hold,  not  merely 
that  the  burden  of  the  covenant  ran  with 
the  land,  but  that  the  benefit  of  it  ran 
with  the  watercourse  ;  for,  otherwise,  the 
plaintiff,  not  being  the  original  covenan- 
tee, would  have  no  right  of  action  :  and 
it  would  probably  be  found  somewhat 
difficult  to  contend  that  a  covenant  could 
run  with  such  an  easement  as  a  water- 
course. See  Milnes  v.  Branch,  5  M.  & 
S.  417,  and  post.  Vide  tamen  E.  of  Port- 
more  v.  Bunn,  1  B.  &  C.  694. 

The  case  of  Barclay  v.  Raine,  1  S.  «fc 
Stu.  449,  has  been  thought  to  bear  upon 
this  controversy,  but  a  close  examination 
will  show  that  it  cannot,  with  propriety, 
be  cited  as  an  authority  on  either  side. 
A.  being  seised  of  Blackacreand  White- 
acre,  under  the  same  title,  and  com- 
prised in  the  same  deeds,  sold  Blackacre 
to  Thring,  and  delivered  the  deeds  to 
him,  Thring  covenanted  for  their  pro- 
duction to  A.,  his  heirs,  executors,  ad- 
ministrators and  assigns.  This  deed  was 
lost,  and  though  a  copy  of  it  existed,  the 
copy  was  in  a  mutilated  state,  partly  il- 
legible. A.  afterwards  sold  Whiteacre 
to  Barclay,  the  father  of  the  plaintiffs: 
Thring  then  sold  Blackacre  to  James 
and  John  Slade,  who  refused  to  give  a 
fresh  covenant  for  the  production  of  title- 
deeds.  On  the  sale  to  the  Slades,  part 
of  the  purchase  money  was  secured  by 
mortgage  ;  and  the  title-deeds,  together 
with  the  mortgage  deed,  were  lodged 
with  Thring.  The  plaintiffs,  who  had 
contracted  to  sell  Whiteacre  to  the  de- 
fendant Raine,  applied  to  Thring  for  a 
covenant  to  produce  the  title-deeds,  and 
he  executed  a  covenant  by  which  he 
covenanted  with  the  defendant,  Raine, 
to  produce  the  title-deeds,  lohile  he 
should  continue  mortgagee.  The  de- 
fendant objected  to  this  as  insufficient, 
and  Thring  then  executed  another  deed, 
in  which  he  acknowledged  the  execution 


spencer'  S    CASE. 


115 


of  the  first  covenant,  and  also  that  the 
deeds  were,  at  the  dale  of  this  last  deed, 
in  his  possession.     Under  these  circum- 
stances, the  question  was,  whether  the 
defendant   could  be  compelled   to  com- 
plete his  purchase,  and  the  Vice-Chan- 
cellor  (Sir  J.  Leach)   decided  that   he 
could  not;  and  is  reported,  in  1  Sim.  & 
Stu.  454,  to  have  said  on  that  occasion. 
"  that  equity  never  compels  a  purchaser 
to  take  without  the  title  deeds,  unless 
he  have  a  covenant  to  produce  them ; 
that  a  mere  equitable  right  to  their  pro- 
duction, even  if  it  existed,  would  not  be 
sufficient,  and  that  Hiring'' s  covenant  to 
produce  did  not  run  ivith  the  lands."  It 
is  obvious,  that  this   last  observation,  if 
made  at  all,  could  not  have  been  intended 
to  apply  to  the  second  covenant  executed 
by  Tliring,  which  would  be  clearly  in- 
sufficient, inasmuch  as  it  was  restrained 
to  the  time  during  which  he  should  con- 
tinue mortgagee  :  when  he  ceased  to  be 
mortgagee,  the  Slades  would  be  entitled 
to  the  deeds,  and  it  was  therefore  neces- 
sary, that  some  covenant  should  exist, 
r  :f:oc  -I  the  effect  of  which  should  last  *be- 
'-         -'  yond  that  period  ;  and  so  the  Mas- 
ter had  reported.     It  was  therefore  im- 
material, whether  the  second  covenant 
would  or  would  not  run  with  the  land, 
and  the  true  question  was;  1st,  whether 
the  covenant  Jirst  executed   by  Thring 
would   bind   the   Slades;   2ndly,    if  so, 
whether   it   would   bind   them    for   the 
benefit  of  Raine;  and,  3rdly,  supposing 
the  covenant  would  bind  the  Slades,  and 
would  enure  to  Raine's  benefit,  whether 
there  was  sufficient  legal  evidence  of  its 
contents;  for,  if  not,  it  would  of  course 
be  as  useless  as  if  it  never  had  existed. 
(See  the  judgment  of  the  Master  of  the 
Rolls  in  Bryant  v.  Busk,  4  Russ.  1.)  Now 
the  first  of  these  points  would  have  in- 
volved the  question,  whether  the  burden 
of  Thring's  covenant  would  run   with 
Blackacre  to  his  vendees,  the  Slades! 
The   second   would   have   involved  the 
question,  whether  the  benefit  of  it  would 
run  along  with  VVhiteacre,  from  A.,  the 
covenantee,  to  the  Barclays,  and  from 
them  to  Raine?     But  it  became  unne- 
cessary to  decide  either  of  these  two 
points,  because  it  appears  clear  that  the 
third  po'mt  was  against  the  vendor;  in 
other  words,  it  appears  clear,  that,  what- 
ever might  have  been  the  eflTect  of  the 
covenant,  there  was  no  legal  evidence  of 
its  contents.     The  deed    was   lost,  the 
copy  was  mutilated,  and  partly  illegible  ; 
and,  if  entire,  would  only  have  been  se- 


condary evidence  of  the  original,  if  duly 
proved  to  be  a  true  copy,  and  it  does  not 
appear  that  that  could  have  been  done ; 
and  the  deed  lastly  executed  by  Thring, 
even  had  it  set  out  the  contents  of  the 
first  deed,  which  in  all  probability  it  did 
not,    would     not    have    been    evidence 
against  the  Slades,  as  it  was  not  execut- 
ed till  after  Tiiring  had  parted  with  his 
interest   in    the    lands   to  them.      The 
questions,  therefore,  whether  either  the 
benefit  or  burden  of  Thring's  covenant 
ran  with  the  land,  did  not  arise;  and  it 
might  have  been  supposed  that  the  Vice- 
Chancellor,    in   pronouncing  judgment, 
would  have  omitted  all  consideration   of 
them,  had  it  not  been  that  the  reporter 
puts  into  his  mouth  the  following  words  ; 
"  Thring's  covenant  to  produce  does  not 
run  loith  the  land."     However,  in  the 
7th  volume  of  Jarman's  By  the  wood,  p. 
375,  under  the  report  of  Barclay  v.  Raine, 
I  find  the  following  note  : — "  His  honor 
lately  denied  his  having  used  the  expres- 
sions here  imputed  to  him;  he  did  7iot 
say  that  Thrmg's ^rsf  covenant  did  not 
run    with    the    land    (for    his    Honor 
thought  it  clearly  did),  but  that  the  se- 
cond  covenant    was   restricted    to  the 
period  of  his  being  mortgagee."     Rolls, 
28th  July,  1S30.      It  seems,  therefore, 
that   Sir   John  Leach's  private   opinion 
was,  that  Thring's  first  covenant  <^jii^  run 
with  the  land;  but  whether  he  thought 
that  the  benefit  orn  ran  with  Whiteacre, 
or  the  burden  with  Blackacre,  or  that 
both   benefit   and  burden  ran   with  the 
land,  is  left  completely  in  ambiguo.  One 
thing,  however,  is  quite  plain,  viz  ,  that 
Barclay  v.  Raine  is  no  decision  on  the 
present  question  ;  since,  had  his  Honor 
thought  that  there  was  a  sufficient  cove- 
nant, and  sufficient  evidence  of  its  con- 
tents, he  must  have  decided  in  favour  of 
the    plaintiffs,  and  against  Raine,  who 
would  then  have  had  no  excuse  for  not 
completing  his  purchase. 

Covenants  like  that,  to  pay  a  rent- 
charge  issuing  out  of  the  land,  have 
reference  to  an  interest  possessed  by  the 
covenantee  independently  of  the  cove- 
nant, but  there  are  other  covenants  un- 
connected with  any  interest  in  the  land, 
such  as  a  covenant  by  the  owner  of  the 
land,  that  it  shall  never  be  built  upon  or 
never  planted,  or  imposing  any  other  re- 
striction on  the  mode  of  its  enjoyment,  in 
favour  of  a  person  having  no  property 
therein.  The  possibility  of  making  these 
covenants  run  with  land  has  been  ques- 
tioned, not  merely  on  the  general  ground 


IIG 


SMITH'S    LEADING    CASES. 


above  stated,  namely,  that  the  burtlien  of 
a  covenant  cannot  run  with  land  except 
between  landlord  and  tenant,  though  the 
benefit  thereof  may  ;  but  also  on  the 
ground  that  they  infringe  tiie  rule  ef 
law  against  perpetuities,  by  tending  to 
impede  the  free  circulation  of  property. 
An  instance  of  a  covenant  of  this  sort  is 
to  be  found  in  a  note  to  Fitzherbcrt's 
Natura  Brevium,  fo.  145,  for  which  he 
cites  the  Year  Book,  4  H.  'S,  .57,  not  in 
print.  The  note  is  as  follows: — "A 
man  covenants  that  neither  he  nor  his 
heirs  shall  erect  any  mill  in  such  a  place, 
and  an  action  of  covenant  is  thereupon 
brought  by  the  heir,  and  well."  I  pre- 
sume that  the  words  lij  the  heir  signify 
the  heir  of  the  covenantee,  and  probably 
the  main  question  in  that  case  was 
r  *36  1  *^^'hether  the  heir,  who  had  per- 
^  -I  haps  inherited  some  mill  which 
the  covenant  was  framed  to  protect,  or  the 
executor  of  the  covenantee,  should  bring 
tlie  action.  It  has  been  remarked,  by 
very  high  authority,  that  "  in  the  case 
cited  by  Hale,  the  covenant  was  held  to 
be  good  ;  but  that  does  not  go  far  towards 
removing  the  doubt,  for  that  case  occur- 
red at  a  period  long  before  the  law  of 
perpetuity  was  introduced,"  3d  Report  of 
the  R.  P.  Commissioners,  54.  In  addi- 
tion to  which  it  may  be  observed,  that 
even  had  the  case  occurred  since  the 
rule  against  perpetuities,  it  might  not 
have  effectually  resolved  the  doubt  as  to 
the  operation  of  that  rule,  for  the  action 
was  brought  against  the  covenantor  him- 
self, of  whose  liability  there  could  be  no 
question  ;  and  as  the  word  assigns  does 
not  occur  in  the  covenant,  it  may  be 
doubted  whether  the  assignees  would 
have  been  bound  by  it,  as  it  can  hardly 
be  said  to  relate  to  a  thing  in  esse,  par- 
cel of  the  covenantor's  land  ;  and  if  the 
assignees  would  not  be  bound  by  it,  it 
could  have  no  tendency  to  impede  the 
circulation  of  the  land,  or  to  create  a 
perpetuity. 

These  subjects  have  been  very  lately 
discussed  in  thecaseof  Keppel  v.  Bailey, 
in  the  Court  of  Chancery,  2  Myln.  &  K. 
517,  in  which  the  questions  were  elabo- 
raiely  argued,  and  every  authority  on 
either  side,  it  is  believed,  cited  either  by 
counsel,  or  by  the  Lord  Chancellor 
(Brougham)  in  delivering  his  judgment. 
In  that  case,  certain  persons  having 
formed  themselves  into  a  company  for 
the  establishment  of  a  railroad  called  the 
Trevil,  Edward  and  Jonathan  Keppel, 
who  held  the  Beaufort  iron-works  under 


a  long  lease,  had  covenanted  with  the 
proprietors  of  the  railroad  and  their  as- 
signs, that  they,  their  executors,  admin- 
istrators and  assigns,  would  procure  all 
the  limestone  wanted  for  the  iron-works 
from  the  Trevil  quarry,  and  carry  it 
along  the  Trevil  railroad,  paying  a  cer- 
tain toll.  Edward  and  Jonathan  Keppel 
assigned  their  lease  of  the  iron-works  to 
the  defendants,  who  began  to  construct  a 
railroad  to  other  lime  quarries,  situated 
eastward  of  the  Trevil  quarry  ;  and  on  a 
bill  for  an  injunction  to  restrain  them 
from  using  that  or  any  other  new  road, 
it  was,  among  other  points,  objected  to 
the  covenant  that  it  was  void,  as  tending 
to  create  a  perpetuity,  that  it  was  void 
as  in  restraint  of  trade,  and  that  it  was 
not  such  a  covenant  as  would  run  with 
the  lands,  so  as  to  bind  the  defendants, 
as  assignees  of  the  iron-works.  Upon 
the  first  point,  the  Lord  Chancellor  ap- 
peared to  think  that  it  could  not  be  in- 
validated on  the  ground  of  perpetuity. 
"I  do  not,"  said  he,  "at  all  doubt  that 
the  enjoyment  of  property  may  be  tied 
up,  and  an  illegal  perpetuity  created,  by 
annexing  conditions  to  grants,  or  by  ex- 
ecuting covenants,  whereby  whoever 
happens  to  be  in  possession  shall  be  re- 
strained from  using  that  which  is  the 
subject  of  the  grant  or  covenant,  in  all 
but  a  certain  prescribed  way,  provided 
always  that  the  restraint  so  constituted 
is  not  reserved  in  favour  of  some  other 
party  who  may  release  it  at  his  pleasure  ; 
and,  therefore,  all  such  conditions  and 
covenants  are  void  if  they  go  beyond  the 
period  allowed  by  law.  IJut  if  the  party 
for  whom  the  condition  is  made,  or  the 
party  covenantee,  has  the  entire  power 
of  dealing  with  his  interest  in  the  sub- 
ject-matter, it  is  an  obvious  mistake  to 
treat  this  as  an  instance  of  perpetuity,  or 
of  any  tendency  towards  perpetuity.  In- 
deed, the  property,  the  subject  matter  of 
consideration  here,  is  not  the  estate  fet- 
tered by  the  condition  or  covenant,  but 
the  benefit  reserved  by  the  condition  or 
secured  by  the  covenant,  and  upon  that 
there  is,  by  the  hypothesis,  no  restraint 
at  all;  and  certainly,  to  take  another 
view,  though  one  of  the  parties  interest- 
ed, the  owner  of  the  property  subject  to 
the  covenant  or  condition,  may  be  fast, 
the  other  is  loose,  and  so,  quoad  all,  ta- 
ken together,  that  is  quoad  all  interest- 
ed, the  property  is  free. — Upon  other 
grounds,  such  a  restraint  may  be  objec- 
tionable and  void  in  law,  as  well  as  bad 
in  policy,  but  certainly  not  upon  the  doc- 


SPENCERS    CASE. 


117 


trine  of  perpetuity,  by  wliich  it  is  no 
more  struck  at,  than  a  rifrht  of  a  way  or 
otiier  easement,  which  the  owners  of  one 
estate  may  enjoy  over  the  close  of  ano- 
ther. Tliere  appears,  at  first,  to  be  more 
weight  in  the  objection,  that  covenants 
of  this  description  are  in  restraint  of 
trade.  The  covenant  here  is  not  in 
r  *'^7  1  general  restraint  of  trade,  which 
'-  J  would,  *beyond  all  doubt,  make  it 
void,  in  whatever  way  the  purpose  was 
effected.  The  restraint  is  only  partial, 
and  then  the  law  will  support  it ;  'if,'  to 
use  the  words  of  Parker,  C.  J.,  in  Mitch- 
ell v.  Reynolds,  'in  the  opinion  of  the 
court,  whose  office  it  is  to  determine 
upon  the  circumstances,  it  appears  to  be 
a  just  and  honest  contract.' " 

Upon  the  great  question,  viz.  whether 
the  covenant  were  capable  of  running 
with  the  Beaufort  iron-works,  so  as  to 
bind  the  defendants  as  assignees  thereof, 
his  lordship  expressed  a  very  decided 
opinion  in  the  negative: — "Assuming 
that  the  Keppels  covenanted  for  their 
assigns  of  the  Beaufort  works,  could 
they,  by  a  covenant  with  persons  who 
had  no  relation  whatever  to  those  works, 
except  that  of  having  a  lime-quarry  and 
a  railway  in  the  neighbourhood,  bind  all 
persons  who  should  become  owners  of 
those  works,  either  by  purchase  or  des- 
cent, at  all  times,  to  buy  their  lime  at 
the  quarry,  and  carry  their  iron  on  the 
railway;  or  could  they  do  no  more,  if 
the  covenant  should  not  be  kept,  than 
give  the  covenantees  a  right  of  action 
against  themselves,  and  recourse  against 
their  heirs  and  executors,  as  far  as  those 
received  assets!  Consider  the  question 
first  upon  principle :  there  are  certain 
known  incidents  to  property  and  its 
enjoyments,  among  others,  certain  bur- 
dens wherewith  it  may  be  affected,  or 
rights,  which  may  be  created,  or  enjoy- 
ed with  it,  by  parties  other  than  the 
owner,  all  which  incidents  are  recognis- 
ed by  the  law.  But  it  must  not  there- 
fore be  supposed  that  incidents  of  a  novel 
kind  can  bo  devised  and  attached  to  pro- 
perty at  the  fancy  or  caprice  of  any 
owner.  It  is  clearly  inconvenient  both 
to  the  science  of  the  law  and  to  the 
public  weal,  that  such  a  latitude  should 
be  given.  There  can  be  no  harm  in 
allowing  men  the  fullest  latitude  in 
binding  themselves  and  their  represen- 
tatives, that  is,  their  assets,  real  and 
personal,  to  answer  in  damages  tor 
breach  of  their  obligations.  This  tends 
to   no  detriment,  and    is   a  reasonable 


liberty  to  bestow  ;  but  great  detriment 
would  arise,  and  much  confusion  of 
rights,  if  parties  were  allowed  to  invent 
new  m.odes  of  holding  and  enjoying  real 
property,  and  to  impress  upon  their 
lands  and  tenements  a  peculiar  cha- 
racter, which  should  follow  them  into 
all  hands,  however  remote.  Every  close, 
every  messuage,  might  thus  be  iield  in 
a  different  fashion,  and  it  would  be 
hardly  possible  to  know  what  rights  the 
acquisition  of  any  parcel  conferred,  or 
what  obligations  it  imposed.  The  right 
of  way  or  of  common  is  of  a  public,  as 
well  as  of  a  simple,  nature,  and  no  one 
who  sees  the  premises  can  be  ignorant 
of  what  all  the  vicinage  knows.  But  if 
one  man  may  bind  his  messuage  and 
land  to  take  lime  from  a  particular  kiln, 
another  may  bind  his  to  take  coals  from 
a  certain  pit,  while  a  third  may  load  his 
with  obligations  to  employ  one  black- 
smith's forge,  or  the  members  of  one 
corporate  body,  in  various  operations  on 
the  premises,  besides  many  other  res- 
traints, as  infinite  in  variety  as  the  ima- 
gination can  conceive  ;  for  there  can  be 
no  reason  whatever  in  support  of  tlie 
covenant  in  question,  which  would  not 
extend  to  every  covenant  that  can  be 
devised.  The  difference  is  obviously- 
very  great  between  such  a  case  as  this 
and  the  case  of  covenants  in  a  lease 
whereby  the  demised  premises  are  af- 
fected with  certain  rights  in  favour  of 
the  lessor.  The  lessor  or  his  assignees 
continue  in  the  reversion  while  the  term 
lasts.  The  estate  is  not  out  of  them, 
though  the  possession  is  in  the  lessee  or 
his  assigns.  It  is  not  at  all  inconsistent 
with  the  nature  of  the  property  that  cer- 
tain things  should  be  reserved  to  the 
reversioner  all  the  while  the  term  con- 
tinues;  it  is  only  something  taken  out 
of  the  demise,  some  exception  to  tlic 
temporary  surrender  of  the  enjoyment. 
It  is  only  that  they  retain  more  or  less 
partially  the  use  of  what  was  wholly 
used  by  them  before  the  demise,  and 
what  will  again  be  wholly  used  by  them 
when  that  demise  is  at  an  end." 

The  question  was  also  discussed  at 
considerable  length  in  the  Duke  of  Bed- 
ford V.  The  Trustees  of  the  British  Mn- 
seum,  2  Mylne  &  K.  552.  That  case, 
however,  turned  at  last  upon  a  point 
purely  of  equity,  the  court  conceiving, 
that,  however  the  rights  of  the  parties 
might  be  at  law,  it  was  a  case  in  which 
equity  ought  not  to  interfere.  See  Col- 
lins V.  Plumb,  IG  Ves.  431. 


118 


SMITHS     LEADING     CASES. 


In  Randall  v.  Rigby,  4  M.  &  W.  180, 
the  defendant  had  covenanted  for  the 
payment  of  an  annuity  or  rent  issuing' 
out  of  land.  "No  doubt,"  said  Parke, 
B.,  "  this  covenant  is  collateral  or  in 
gross  in  one  sense,  that  it  does  not  run 
tcith  the  land  or  rent." 

[In  Bristow  v.  Wood,  1  Collyer,  480, 
(more  fully  reported  14  L.  J.  50,)  a  pur- 
chaser was  discharged  from  his  contract 
upon  a  doubt  whether  the  land  was  not 
bound  by  a  covenant  by  the  vendor  not  to 
build  houses  in  courts,  or  of  a  less  value 
than  300Z.,  not  to  erect  a  steam-engine  or 
manufactory,  or  to  carry  on  any  trade 
that  might  be  a  nuisance  to  the  neigh- 
bourhood, although  the  purchaser  at  the 
time  of  the  contract  had  no  notice  of  the 
covenant.  In  Whatman  v.  Gibson,  9 
Sim.  196,  and  Mann  v.  Stephens,  July, 
1846,  the  Vice-Chancellor  restrained  by 
injunction,  assignees  who  had  purchased 
with  notice  of  similar  covenants.  It 
seems  clear,  however,  that  the  fact  of 
notice  or  no  notice  cannot  in  a  court  of 
law  affect  the  question,  whether  the 
covenant  runs  with  the  land  ;  and  if  any 
sound  distinction  exist  in  this  respect 
between  the  case  of  a  purchaser  with 
and  without  notice,  it  can  be  worked  out 
only  in  a  court  of  equity.  Such  appears 
to  have  been  the  opinion  of  the  Vice- 
Ciiancellor  in  Whatman  v.  Gibson.  See 
also  Schreiber  v.  Creed,  10  Sim.  9.] 

Upon  the  whole,  there  appears  to  be 
P  ^.,Q  -,  no*authorily  for  saying  that  the 
>-  J  burden  of  a  covenant  will  run 
with  land  in  any  case,  except  that  of 
landlord  and  tenant;  while  the  opinion 
of  Lord  Holt  in  Brewster  v.  Kitchell, 
that  of  Lord  Brougham,  in  Keppel  v. 
Bailey,  and  the  reason  and  convenience 
of  the  thing,  all  militate  the  other  way. 

As  to  the  subject-matter  to  which  a 
covenant  may  be  incident,  so  as  to  run 
with  it  to  the  assignee. — The  principal 
case  shows  that  covenants  will  not  run 
with  personal  property.  In  Milnes  v. 
Branch,  5  M.  &  S.  417,  J.  B.,  being 
seised  in  fee,  conveyed  to  the  defen- 
dant and  J.  J.,  their  heirs  and  assigns, 
to  the  use  that  J.  B.,  his  heirs  and  assigns 
might  have  a  rent  out  of  the  premises, 
and  subject  thereto  to  the  use  of  the  de- 
fendant in  fee,  and  the  defendant  cove- 
nanted with  J.  B.,  his  heirs  aiid  assigns, 
to  pay  J.  B.,  his  heirs  and  assigns,  the 
rent,  and  to  build  witiiin  a  year  one  or 
more  messuages  on  the  premises  for  se- 
curing the  rent.  J.  B.  within  a  year  de- 
mised the  rent  to  the  plaintiffs  for  1000 


years.  It  was  held  that  covenant  would 
not  lie  for  the  plaintiffs,  either  for  non- 
payment of  the  rent  or  not  building  the 
messuages ;  and  the  court,  in  giving  judg- 
ment, expressed  a  clear  opinion  that  a 
covenant  could  not  run  witli  rent.  Ac- 
cord, per.  Parke,  B.,  in  Randall  v.  Rig- 
by,  4  Mee.  &  Welsh.  135,  where  the  de- 
fendant had  covenanted  to  pay  a  rent 
charged  upon  land.  "  No  doubt,"  said 
his  Lordship,  "  this  covenant  is  collateral 
or  in  gross  in  one  sense,  that  it  does  not 
run  with  the  land  or  rent,  for  that  Milnes 
V.  Branch,  is  an  authority."  In  Bally 
V.  Wells,  Wilmot's  Notes,  341,  vide  3 
Wils.  25,  it  was,  however,  held  tiiat  a 
covenant  might  run  with  tithes.  That 
was  an  action  brought  by  George  Bally, 
clerk,  rector  of  Monkton,  against  James 
Wells,  assignee  of  one  Whitmarsh,  to 
whom  the  plaintiff  had  demised 'all  the 
tithes  of  the  parish  of  Monkton,  for  six 
years,  by  a  lease  containing  the  follow- 
ing covenant: — "And  the  said  James 
Whitmarsh,  for  himself,  his  executors, 
administrators,  and  assigns,  doth  cove- 
nant and  agree,  not  to  let  any  of  the  far- 
mers now  occupying  the  estate  at  Monk- 
ton  have  any  part  of  the  tithes  aforesaid, 
without  the  consent  of  the  said  George 
Bally  in  writing  first  had  *and  r^r,a  -i 
obtained."  James  Whitmarsh  as-  ^  ^ 
signed  his  interest  in  the  tithes  to  the 
defendant,  who  let  several  farmers,  oc- 
cupiers, have  part  of  the  tithe  without 
the  consent  of  Mr.  Bally,  who  thereupon 
brought  an  action  of  covenant,  and  after 
verdict  for  the  plaintiff,  it  was  moved, 
among  other  things,  in  arrest  of  judg- 
ment, that  tithes  are  incorporeal,  lying 
in  grant,  and  therefore  that  such  a  cove- 
nant cannot  run  with  them.  The  court, 
however,  gave  judgment  for  the  plaintiff. 
[And  in  The  Earl  of  Egremont  v.  Keene, 
2  Jones  (Exchequer,  Ireland),  307,  a 
covenant  to  pay  rent  reserved  on  a  de- 
mise of  the  tolls  of  a  market,  was  held 
to  run  with  the  tenement,  and  bind  the 
assignee  of  the  lessee.  But  see  Co.  Litt. 
34  b,  47  a.  In  Muskett  v.  Hill,  5  N.  C. 
694,  the  question  whether  a  covenant 
could  run  with  an  assignable  right  to 
search  for  and  take  minerals,  was  dis- 
cussed, but  not  decided.]  See  E.  of 
Portmore  v,  Bunn,  1  B.  &  C.  094. 

Covenants  will  not  run  with  an  estate 
to  which  the  covenantee  is  only  entitled 
by  estoppel.  Noke  v.  Awder,  Cro.  Eliz. 
436 ;  Whitton  v.  Peacock,  2  Bing.  N.  C. 
411.  [QucBre]. 

[The  above  proposition   in  terms  ex- 


SPENCERS   CASE. 


119 


eludes  the  case  of  a  covenant  in  a  con- 
veyance effectual  at  first  by  estoppel  only, 
but  which  has  subsequently  become  a 
valid  conveyance  in  point  of  interest,  in 
consequence  of  the  acquisition  of  an  es- 
tate by  the  conveying  party.  In  such  a 
case,  it  is  clear  that  the  assignee  of  the 
covenantee,  not  being  entitled  "  only 
by  estoppel,"  may  sue  equally  as  if  the 
conveyance  had  from  the  first  transferred 
an  estate  in  interest.  For  example,  if 
one  having  no  estate  make  an  ordinary 
lease  by  indenture,  and  subsequently  ac- 
quire the  fee,  the  lease  becomes  an  es- 
tate in  interest;  and  the  lessor  and  his 
assigns  on  the  one  hand,  Webb  v.  Aus- 
tin,^8  Scott,  N.  R.  419,  and  the  lessee 
and  his  assigns  on  the  other.  Sturgeon  v. 
VVingfield,  15  M.  &  W.  224,  may  main- 
tain all  such  actions  on  the  covenants, 
as  if  the  lessor  had  had  the  fee  simple 
at  the  time  of  making  the  lease. 

Perhaps,  also,  the  proposition  might 
be  correctly  limited  to  cases  where  it 
must  appear  upon  the  pleadings  of  the 
assignee  himself,  that  there  is  no  estate 
with  which  the  covenant  can  run. 

The  following  is  an  attempt  to  state 
the  results  of  the  authorities  upon  this 
subject,  and  to  distinguish  what  is  estab- 
lished law  from  what  still  remains  in 
doubt: — 

1.  As  we  have  already  seen,  where 
an  estate  by  estoppel  becomes  an  estate 
in  interest,  by  the  lessor's  subsequent 
acquisition  of  an  estate,  the  parties  and 
their  assignees  are  in  the  same  position 
as  if  the  estate  had  been  ab  initio  an 
estate  in  interest.  Webb  v.  Austin,  8 
Scott,  N.  R.  419 ;  Sturgeon  v.  Wingfield, 
15  M.  &  W.  224.  So  far  as  Whitton  v. 
Peacock,  2  N.  C.  411,  is  an  authority  to 
r*3fift1  ^'^^  contrary,  it  cannot  *be  con- 
'-  ^  sidered  as  law.  See  2  Wms. 
Saund.  418  n.  (e). 

2.  Where  it  appears  upon  the  face  of 
the  deed  containing  the  covenant,  that 
the  lessor  has  not  the  legal  estate  in  the 
property,  an  assignment  does  not  trans- 
fer the  benefit  or  burthen  of  the  cove- 
nant. Thus,  where  a  lease  was  made 
by  indenture,  reciting  that  the  lessor 
had  only  an  equitable  title,  it  was  held 
that  the  lessor,  and  not  his  assignee, 
could  sue  upon  the  covenants.  Pargeter 
v.  Harris,  7  Q.  B.  708.  That  is  only  an 
instance  of  the  rule  that  an  instrument 
makes  no  estoppel  where  the  truth  ap- 
pears by  the  same  instrument. 

3.  VVhere  it  appears  by  the  statement 
in  pleading  of  the  assignee  himself  who 


seeks  to  enforce  the  covenant,  that  the 
covenantee  had  no  estate;  even  though 
it  also  appears  that  there  was  an  estop- 
pel which  might  have  been  relied  upon, 
the  assignee  will  fail  upon  his  own 
showing.  See  Noke  v.  Awder,  infra, 
and  the  comment.  In  such  a  case,  the 
party  entitled  to  the  benefit  of  the  estop- 
pel contradicts  instead  of  relying  upon 
it.  (See  Ludford  v.  Barber,  1  T.  R.  95, 
per  Buller,  J.) 

4.  Where  the  assignee  states  as  part 
of  his  title  some  particular  estate  to 
have  been  in  the  lessor  at  the  time  of 
the  lease,  and  it  does  not  appear  that  the 
lessee  is  estopped  by  the  lease  from 
denying  that  particular  estate  as  against 
the  lessor,  he  may  deny  it  in  the  action 
at  the  suit  of  the  assignee.  Carvick  v. 
Blagrave,  1  B.  &.  B.  5;31 ;  4  Moore,  'SOS, 
S.  C.  * 

5.  In  an  action  by  lessor  against  as- 
signee of  lessee,  it  is  unnecessary  fir 
the  lessor  to  allege  his  title;  and,  if  it 
neither  appears  by  the  lease,  as  in  Earl 
of  Portmore  v,  Bunn,  1  B.  &  C.  694,  nor 
by  the  lessor's  pleadings,  that  he  had  no 
title,  it  is  not  competent  for  the  assignee 
to  raise  the  question  whether  he  had  an 
estate  in  interest,  or  only  by  estoppel 
Taylor  v.  Needham,  2  Taunt.  278; 
Cooper  v.  Blandy,  1  N.  C.  45 ;  Warbur- 
ton  v.  Ivie,  1  Jones  (E.xchequer,  Ire- 
land,) 313. 

6.  If  a  lease  be  made  by  indenture, 
in  such  a  form  as  to  create  between  the 
lessor  and  lessee  an  estoppel  to  deny  that 
the  lessor  had  a  reversion,  and  the  les- 
sor  conveys  all  his  interest,  the  disputed 
question  arises,  whether  the  assignee 
can  sue  the  lessee  or  his  assignee  for 
breaches  of  covenant  in  respect  of  which 
the  lessor  might  have  sued,  had  there 
been  no  assignment.  Parke,  B.,  in 
Gouldsworth  v.  Knights,  11  M.  &  W. 
337,  expressed  an  opinion  in  the  affirm- 
ative ;  and  there  seems  to  be  no  sound 
reason  why  the  assignee  of  a  reversion 
should  not  establish  his  title  by  way  of 
estoppel.  An  estoppel  does  not  neces- 
sarily involve  a  falsehood.  On  the  con- 
trary, facts  are  ascertained  through  the 
medium  of  estoppel  without  reference  to 
the  question  whether  really  true  or 
false ;  and  it  would  be  sheer  fallacy  to 
assume,  that  a  fact  *established  r^gg^  -i 
by  estoppel,  has  therefore  no  real  ■- 
existence.  For  judicial  purposes  it  ought 
to  be  dealt  with  as  if  it  really  existed. 
It  is  clear  that  the  assignee  of  a  lessor 
is  entitled  to  some  extent  to  the  benefit 


120 


SMITHS     LEADING     CASES. 


of  estoppel,  and  it  seems  difficult  to  con- 
tend, thut  tlic  law  of  estoppel,  subject  of 
course  to  all  tiie  limitations  and  excep- 
tions vvliicii  form  part  of  that  branch  of 
the  law  itself,  (see  an  instance  of  excep- 
tion in  the  case  of  an  interest  passing 
bv  the  lease,  Doe  d.  Strode  v.  Seaton,  2 
C.  I\I.  &.  R.  728  ;  and  in  the  case  of 
eviction  by  title  paramount,  Doe  d.  Hinf- 
ginbofhani  v.  Barton,  11  A.  &  E.  307,) 
sli all  not  apply  in  favour  of  the  assignee, 
equally  in  an  action  of  covenant  as  in 
an  action  of  ejectment,  or  of  use  and 
occupation,  llennie  v.  Robinson,  7 
Moore,  539;  Gouldsworth  v.  Knights, 
11  M.  &  W.  337.  The  lessee  has  (in 
a  case  of  considerable  authority)  been 
held  estopped  from  pleading  nil  habuit 
ill  tenementis  in  an  action  of  covenant 
at  suit  of  the  assignee  of  the  lessor, 
I'almer  v.  Ekina^  2  Lord  Raym.  1550, 
and  it  seems  that  he  ought  not  in  such 
a  case  to  be  allowed  to  plead  any  plea 
which  would  be  satisfied  by  proof  simply 
that  the  lessor  had  no  title  when  he 
made  the  lease.  The  cases  which  have 
been  supposed  chiefly  to  countenance  a 
contrary  opinion  are,  Noke  v.  Awder, 
W'hitton  V.  Peacock,  Carvick  v.  Bla- 
grave.  An  examination  of  those  cases 
will  show  that  they  have  no  such  effect. 
Noke  V.  Awder,  Cro.  Eliz.  436,  was 
not  an  action  between  landlord  and  ten- 
ant, nor  did  it  in  any  way  turn  upon  the 
statute  of  32  H,  8,  c.  34 ;  but  it  may, 
for  the  purpose  of  the  present  inquiry, 
be  conceded,  that  no  sound  distinction 
can  be  drawn  iu  respect  of  the  operation 
of  estoppel,  between  cases  at  common 
law  and  under  the  statute.  It  was  an 
action  by  the  assignee  (Noke)  of  the  as- 
signee (J.  S.)  of  the  assignee  (Abel)  of 
a  lease  for  years  from  one  John  King  to 
the  defendant  (Awder);  and  the  decla- 
ration stated  the  making  of  the  lease  by 
Jolin  King  to  Awder,  an  assignment  from 
Awder  to  Abel  by  deed  containinga  cove- 
nant by  Awder  with  Abel  for  quiet  en- 
joyment ;  that  Abel  assigned  to  J.  S. 
and  J.  S.  to  the  plaintiff';  and  it  stated 
as  bread),  that,  befijre  John  King,  the 
lessor,  had  any  thing  in  the  premises, 
one  Robert  King  was  seised  in  fee,  and 
died  so  seised,  and  that  his  heir,  Thomas 
King,  entered  upon  the  plaintiff  and 
ousted  him.  The  plaintiff  (to  follow 
the  argument  of  Coke,  Attorney-Gen- 
eral, for  the  defendant)  was  in  tiiis 
dilemma,  that,  either  the  lessor  John 
King  had  upon  the  plaintiff's  showing 
no  estate,  and  then  no  term  was  creat- 


ed by  the  lease,  and  so  no  estate  pass- 
ed by  the  assignment  from  the  de- 
fendant to  Abel,  consequently  there  was 
no  actual  privity  of  estate  between 
the  defendant  and  the  plaintiff,  nor 
any  estoppel,  because  the  facts  were 
*stated  on  the  record  and  the  es-  r^r>^  ,, 
toppel  not  relied  upon;  or,  sup-  "-  '  -" 
posing  that  the  declaration  were  read  as 
alleging  a  valid  lease  from  John  King  to 
the  defendant ;  then,  consistently  with 
the  declaration,  Thomas  King,  who  was 
alleged  to  have  ousted  the  plaintiff,  had 
no  title,  was  a  mere  trespasser,  and  so 
there  was  no  breach  of  the  general  co- 
venant for  quiet  enjoyment.  So  that, 
qucicunque  via  data,  the  action  could 
not  be  maintained.  And  the  court  are 
reported  to  have  held,  "  that  it  was 
clear  upon  the  matter  shown  that  the 
action  lay  not,  for  the  plaintiff  ought  to 
have  shown  an  estate  by  descent  in 
John  King  at  the  time  of  the  lease  and 
assignment  made,  or  an  estate  whereby 
he  might  make  a  lease,  and  that  this 
was  afterwards  determined  ;  and  so  con- 
fess the  estate  in  the  lessor,  otherwise 
this  action  of  covenant  lieth  not,  and  it 
never  lies  upon  the  assignment  of  an 
estate  by  estoppel.  Wherefore  they 
were  of  opinion  to  have  then  given  judg- 
ment against  the  plaintiff,  but  afterwards 
they  would  advise  until  the  next  term." 
If  the  judgment  of  the  court  had  finally 
proceeded  upon  this  reasoning,  it  would 
only  have  been  a  decision,  that,  as  the 
plaintiff  upon  his  own  showing  never 
had  conveyed  to  him  any  estate  in  the 
premises,  he  could  not  sue  upon  the 
covenant  as  one  running  with  the 
land.  The  estoppel  was  not  pleaded, 
but  the  contrary;  and  the  placituui 
in  Comyns's  Digest,  Covenant  (B.  3), 
"So  the  assignee  of  a  lease  which 
appears  to  be  good  only  by  estoppel 
shall  not  have  covenant,"  R.  Cro.  El. 
437,  Mo.  419,  correctly  limits  the  obiter 
opinion  of  the  court  (which  did  not  form 
the  basis  of  their  final  decision)  to  cases 
where  it  appears  that  no  estate  passed 
to  the  covenantee.  The  ultimate  deci- 
sion in  Noke  v.  Awder  was  founded  upon 
the  insufficiency  of  the  breach,  assuming 
the  lease  to  have  been  valid  in  interest 
and  not  merely  by  estoppel,  for  the  re- 
port proceeds,  "  Note  ;  This  was  conti- 
nued until  Trin.  41  Eliz.,  and  then  be- 
ing moved  again,  all  the  justices  resolved 
that  the  assignee  of  a  lease  by  estoppel 
shall  not  take  advantage  of  any  cove- 
nant ;  but  that  it  shall  not  be  intended 


spencer's    case. 


121 


[*38e] 


a  lease  by  estoppel,  but  a  lawful  lease. 
But  no  sufficient  title  hexng  siiown  to 
avoid  it,  it  is  tlien  as  an  entry  by  a 
stranger  without  title,  which  is  not  any 
breach.  Wherefore  it  was  adjudged  for 
tlie  defendant." 

Noke  V.  Awder  cannot  therefore  be 
considered  as  establishing  the  general 
proposition,  that  the  benefit  of  covenants 
in  a  lease  which  operates  by  estoppel 
does  not  run  with  the  reversion  ;  or  that 
it  is  competent  for  the  lessee  or  his 
assignee,  to  raise  the  point  against  the 
assignee  of  the  lessor. 

Whitlon  V.  Peacock,  2N.  C.  411,  was 
a  case  out  of  Chancery.  The  land  was 
copyhold.  Littlehales,  and  Maria,  his 
wife,  having  no  estate  therein,  demised 
to  Keys  *for  years,  the  rent  being 
reserved  payable  to  Littlehales, 
and  the  covenant  being  made  with  him 
only.  Afterwards  the  lessee  assigned 
his  interest;  the  lessors,  by  surrender  of 
the  true  owner  and  admittance  thereon, 
acquired  the  legal  estate ;  and,  subse- 
quently, by  surrender  and  admittance, 
their  estate  so  acquired  became  vested 
in  the  plaintiff.  The  question  was, 
whether  he  could  maintain  an  action  of 
covenant  against  the  assignee  of  the 
lessee.  The  case  was  argued  as  if  the 
covenants  in  the  lease  where  such  as  to 
run  with  the  land  (which  quare,  see 
Wootton  v.  Steffanoni,  12  M.  &  W. 
129),  and  as  if  the  plaintiff  was  assignee 
of  the  reversion  by  estoppel,  by  a  con- 
veyance which  passed  all  the  Little- 
hales' interest,  whether  by  estoppel  or 
otherwise.  The  practice  of  stating  rea- 
sons for  the  answers  to  a  case  sent  out 
of  Chancery,  had,  at  that  time,  fallen 
into  disuse  (See  Lord  Campbell's  "  Lives 
of  the  Chancellors,"  Vol.  7,  page  137,) 
though  it  has  since,  happily  for  the  pro- 
fession, and  beneficially  for  the  public, 
been  resumed  ;  and  the  Court  of  Com- 
mon Pleas,  without  stating  any  reasons, 
answered,  that  the  plaintiff  could  not 
maintain  an  action  against  the  assignees 
of  Keys  for  breach  of  the  covenants  in 
the  lease.  The  case,  however,  does  not 
decide  that  the  assignee  of  a  reversion, 
created  by  estoppel,  as  between  lessor 
and  lessee,  could  not  sue  on  the  cove- 
nants in  the  lease.  That  question  did 
not  arise  upon  the  facts,  because,  as 
pointed  out  by  Parke,  B.,  in  Goulds- 
worth  V.  Knights,  11  M.  &  W.  344, 
"  the  reversion  by  estoppel  on  the  first 
lease  was  not  a  copyhold  transferable  by 
surrender  and  admitiancc."     It  is  diffi- 


cult, perhaps  impossible,  to  discover  the 
precise  ground  of  the  decision  in  Whit- 
ton  v.  Peacock,  but  it  may  be  conjec- 
tured thnt  the  point  actually  intended  to 
be  decided  was,  that  the  purchaser  by 
surrender  and  admittance  of  a  copyhold 
estate,  from  a  vendor  who  had,  pre- 
viously to  his  acquiring  any  interest, 
made  a  lease  of  the  land,  but  who  had 
subsequently  acquired  therein  a  copy- 
hold estate  of  inheritance,  could  not  be 
considered  as  an  assignee  of  the  rever- 
sion within  the  statute  of  H.  8 ;  a  posi- 
tion apparently  untenable.  Webb  v. 
Austin,  supra,  and  the  learned  note  to 
Partington  v.  Woodcock,  5  N.  &  M. 
67.').  Parke,  B.,  in  stating  (Goulds- 
worth  V.  Knights,  11  M.  &  VV.  337)  that 
Whitton  V.  Peacock  was  correctly  de- 
cided, only  referred  to  the  decision  as 
affecting  the  case  of  a  jnire  estoppel, 
and  evidently  did  not  intend  to  uphold  it 
upon  the  point  not  at  all  under  conside- 
ration in  Goulds  worth  v.  Knights,  and 
which  was  so  fully  discussed  and  de- 
cided for  such  convincing  reasons,  in 
Webb  v.  Austin. 

Carvick  v.  Blagrave,  1  B.  &  B.  531 ; 
4  Moore,  303,  S.  C,  was  an  action  of 
covenant  by  assignee  of  lessor  against 
lessee,  for  rent  in  *arrear.  The  r*.3Q/-i 
count  alleged,  that  Seth  Thomas  L  *-  -z  J 
was  possessed  of  the  demised  premises, 
"  that  is  to  say,  for  the  remainder  of  a 
term  of  twenty-two  years,  commencing 
from,  &c.,  and  that,  being  so  pos- 
sessed, he,  on,  &c.,  by  indenture,  demis- 
ed the  premises  to  the  defendant,  to  hold 
from,  &c.,  for  a  term  of  nine  years;" 
that  afterwards,  Thomas,  "being  pos- 
sessed of  the  said  premises  for  the  re- 
mainder of  the  said  term  of  twenty-two 
years,  subject  to  the  said  lease  for  nine 
years,"  by  another  indenture,  "granted, 
bargained,  sold,  and  assigned  the  said 
premises,  and  all  his  estate  and  interest 
therein,  to  the  plaintifl",  for  the  residue 
and  remainder  of  the  said  term  of 
twenty-two  years."  The  defendant 
pleaded  that  the  lessor  (Thomas)  was 
not,  at  the  time  of  making  the  indenture 
of  lease,  possessed  of  the  demised  premi- 
ses for  the  residue  and  remainder  of  the 
supposed  term  of  twenty-two  years  modo 
el  forma.  To  that  plea  there  was  a^e?ie- 
ral  demurrer,  and  upon  argument,  the 
plea  was  holden  good  in  substance  by 
the  Court  of  Common  Pleas.  Tlic  ob- 
jections taken  were,  first,  that  the  plea 
amounted  to  nil  liabiut  in  tenemenlis ; 
secondly,  that  it  raised  an  immaterial 


122 


smith's    leading   cases. 


issue,  by  traversing'  the  precise  extent 
of  the  term  of  twenty-two  years.  The 
second  point  was  disposed  of  by  the 
opinion  of  the  court,  that  the  plea  put 
in  issue  only  the  substance  of  the  alle- 
gation, viz ,  that  Thomas,  being  pos- 
sessed of  a  term,  made  a  derivative  de- 
mise to  the  defendant.  That  the  sub- 
stantial question,  therefore,  at  the  trial 
of  such  an  issue  would  be,  whether  Tho- 
mas had  a  larger  term  out  of  which  he 
could  carve  the  lesser  term  ?  As  to  the 
first  and  more  serious  objection,  the 
court  admit  the  general  doctrine  of  es- 
toppel between  lessor  and  lessee,  and 
also  that  the  estoppel  had  "equal  effect 
between  the  lessee  and  one  who  is  privy, 
or,  in  other  words,  derives  his  legal 
title  from  the  lessor."  But  they  add, 
that  "  the  lessee  is  under  no  engage- 
ment, nor  liable  to  any  one  but  the  legal 
assignee."  "  The  allegation  of  the  pos- 
session by  Thomas  for  a  term  of  twenty- 
two  years,  is  made  by  the  assignee,  and 
not  by  Thomas  himself;  and  the  lessee 
has  a  right  to  know  whether  there  is  a 
privity  between  him  and  the  assignee  by 
means  of  a  conveyance  by  the  lessor  of 
the  true  title.  From  the  nature  of  the 
case,  he  cannot  be  prevented  from  put- 
ting in  issue  any  material  fact  alleged 
by  the  assignee."  And  again,  "  if  the 
effect  of  the  plea  is  to  dispute  the  inter- 
est which  a  lessee  took  under  a  lease 
from  a  lessor,  the  plea  is  bad  whatever 
shape  it  assumes.  The  present  plea 
leaves  the  lease  in  the  same  state  as  the 
plaintiff  has  described  it,  and  the  de- 
fendant merely  objects,  that  the  title  he 
has  alleged  as  being  assigned  to  him, 
was  not  the  true  title."  The  court, 
therefore,  only  professed  to  decide  that, 
the  tenant  was  not  estopped  to  deny  the 
r*Q«  -|  "existence  of  the  particular  re- 
L  '  s  J  version  alleged  to  have  been  as- 
signed to  the  plaintiff'.  They  did  not 
decide  that  if  the  lessee  had  been  es- 
topped as  against  the  lessor  to  deny  that 
particular  reversion,  he  would  not  also 
have  been  estopped  as  against  the  as- 
signee. No  such  question  arose  upon 
the  pleadings,  for  the  lease  was  not  set 
forth,  and  enough  did  not  appear  upon 
the  record  to  raise  the  question.  (See  per 
Patteson,  J.,  Pargeter  v.  Harris,  7  Q,.  B. 
708).  Had  the  plaintiff",  instead  of  de- 
murring, replied  by  way  of  estoppel, 
showing  the  lease,  and  that  thereby  (if 
such  was  the  fact)  the  tenant  admitted 
a  chattel  reversion  in  the  lessor,  or  if 
enough  of  the  lease  had  appeared  upon 


the  record  to  show  that  fact,  the  same 
court  might,  consistently  with  their 
opinion  expressed  upon  the  actual  state 
of  the  pleadings,  have  given  judgment 
for  the  plaintiff.  Carvick  v.  Biagrave, 
therefore,  does  not  decide  the  point 
under  consideration.  Moreover,  doubts 
have  been  expressed  of  its  soundness. 
(See  2  Wms.  Saunders,  207  d,  418  c,  n. 
id)). 

In  the  case  of  a  lease  for  years,  made 
by  a  tenant  for  life,  or  in  tail,  who  dies 
before  the  end  of  the  term,  an  assignee, 
who  has  become  so  during  the  life  of  the 
landlord,  may  sue  upon  the  covenants; 
but  not  one  who  has  become  so  after  the 
lease  has  become  actually  void  by  the 
death  of  the  landlord.  Andrews  v. 
Pearce,  1  N.  R.  158;  Williams  v.  Bur- 
rell,  1  C.  B.  402.  These  cases  are  re- 
ferred to  only  to  prevent  misapprehen- 
sion. They  do  not  affect  the  present 
question,  because  in  them  an  intere.st 
passed  by  the  lease,  and  there  was  no 
estate  either  in  interest  or  by  estoppel, 
at  the  time  of  assignment. 

But  supposing  it  to  be  correctly  con- 
cluded, that  no  case  of  authority  nega- 
tives the  proposition,  that  tlie  assignee 
of  a  reversion  established  by  the  medium 
of  an  estoppel,  aptly  pleading,  may  sue 
upon  the  covenants  in  the  lease,  it  must 
be  conceded  that  the  question  to  what 
extent  the  parties  are  estopped  by  the 
execution  of  a  lease,  is  one  of  much 
nicely,  and  only  to  be  answered  in  each 
case  by  reference  to  the  terms  of  the 
instrument. 

Akin  to  this  part  of  the  subject,  is  the 
question  lately  revived  by  the  decision 
of  the  Court  of  Queen's  Bench  in  Pol- 
lock V.  Stacey,  Q.  B.  1st  February, 
1S47,  16  L.  J.  N.  S.  132,  that  the 
relation  of  landlord  and  tenant,  properly 
so  called,  can  be  created  between  as- 
signor and  assignee  upon  a  conveyance 
of  the  entire  residue  of  a  term,  there 
being  no  reversion  either  in  fact  or  by 
estoppel ;  a  decision  contrary  to  the 
opinion  expressed  by  the  Court  of  Ex- 
chequer in  Barrett  v.  Rolph,  14  M.  & 
W.  W8. 

The  same  question  had  previously 
caused  a  difference  of  opinion  on  the 
Irish  bench,  the  Court  of  Queen's  Bench 
in  that  part  of  the  ^kingdom  hav-  r*Qu^i 
ing  held  that  Pluck  v.  Digges,  5  L  '  J 
Bligh,  N.  S.  41,  had  authoritatively 
settled  the  question  in  the  negative. 
Lessee  of  Fawcett  v.  Hall,  Ale,  &.  N. 
24S;  the   Court   of  Exchequer   having 


SPENCER    S     CASE. 


123 


been  of  a  contrary  opinion.  Lessee  of 
Walsh  V.  Feely,  1  Jones,  413.  The 
latter  court,  however,  after  reviewing 
all  the  cases  upon  the  subject,  have 
since  concurred  with  the  Queen's 
Bench,"  2  Furlong  on  Landlord  and 
Tenant,"  1121,  referring  to  Lessee  of 
Porter  v.  French,  12th  June,  1844,  of 
which  we  have  not  been  able  to  find  a 
report ;  so  that  both  those  courts  are 
now  of  accord  with  the  Court  of  Ex- 
chequer in  England. 

Without  professing  to  discuss  the 
question  here,  it  may  be  observed  that 
it  was  not  fully  argued  in  either  Barrett 
V.  Rolph,  or  Pollock  v.  Stacey,  and  that 
it  cannot  be  considered  as  settled  by  the 
refusal  of  the  rule  in  the  latter  case.  It 
will  require  for  that  purpose  to  begin 
the  inquiry  earlier  than  the  Nisi  Prius 
ruling  in  Poultney  v.  Holinos,  1  Strange, 
405,  acted  upon  by  the  Court  of  Queen's 
Bench.  The  distinction  between  con- 
veyances by  way  of  subinfeudation,  and 
by  way  of  assignment,  of  estates  in  fee 
(see  Wright's  Tenures,  156)  does  not 
appear  to  have  been  applied  to  the  case 
of  lesser  estates,  or  to  have  been  acted 
on  after  the  statute  of  quia  emptores  for 
any  purpose  relating  to  lands  of  socage 
tenure,  until  it  was  brought  back  to 
light  in  Poultney  v.  Holmes,  to  meet  the 
supposed  hardship  of  a  particular  case. 
The  authorities  collected  in  the  note  to 
The  King  v.  Wilson,  5  Man.  &  R.  157, 
as  tending  to  establish  the  contrary, 
seem,  even  in  the  opinion  of  the  very 
learned  annotator  (see  page  162)  to  fail 
of  that  object.  Assuming  for  the  sake 
of  argument,  the  position  in  Poultney  v. 
Holmes  to  be  correct;  in  what  relation 
do  the  supposed  undertenant  of  all  the 
lessee's  interest  and  the  superior  land- 
lord standi     May  the  landlord  treat  the 


su})posed  under-tenant  as  his  tenant,  by 
reason  of  his  having  acquired  the  en- 
tire residue  of  the  term  7  It  will  hardly 
be  contended  that  he  cannot.  See 
Palmer  v.  Edwards,  1  Doug.  187  n.  If 
he  can,  then  the  supposed  under-tenant 
may  hold  one  and  the  same  land  imme- 
diately of  two  several  lords,  which  can- 
not be,  according  to  Littleton,  5  231, 
and  Lord  Coke's  Commentary,  Co.  Litt. 
152  b.  Perhaps  the  true  distinction 
may  be,  between  cases  where  it  appears 
judicially  that  the  entire  interest  has 
been  conveyed,  and  cases  where,  by 
reason  of  estoppel,  it  does  not  so  appear. 
In  Baker  v.  Gostling,  1  N.  C.  19,  relied 
on  in  Pollock  v.  Stacey  as  confirming 
Poultney  v.  Holmes,  there  appears  to 
have  been  a  reversion  by  estoppel,  and 
where  there  is  such  an  estoppel,  it  is  not 
necessary,  as  between  the  parties  es- 
topped, to  advert  to  the  question,  whe- 
ther in  fact  the  instrument  operates  as 
an  assignment  or  not.  In  *Cre-  t^qq;] 
men  v.  Hawkes,  2  Jones  &  La-  '-  -' 
touche,  674,  Lord  Chancellor  Sugden 
considered  that  there  was  no  right  to 
sue  in  equity  upon  such  an  instrument, 
containing  express  powers. of  distress 
and  entry,  which  might  be  enforced  at 
law,  see  Doe  d.  Freeman  v.  Bateman,  2 
B.  &  Aid.  168.  And  the  remedy  for 
actual  use  and  occupation,  though  under 
an  invalid  assignment,  is  of  course  not 
touched  by  the  above  controversy.  See 
further  Litt.  \\  214,  215,  216,  231,  232, 
and  the  Commentary  ;  the  notes  to  2 
Wms.  Saunders,  418  c,  d,  e,  et  seq.,  and 
a  note  Alcock  &  Napier,  258,  containing 
an  opinion  of  Mr.  Justice  Burton,  the 
reasoning  in  which  goes  near,  if  not 
the  whole  way,  to  conclude  the  discus- 
sion.] 


It  sufficiently  appears  from  the  authority  of  Spencer's  case,  and  the  prin- 
ciples there  laid  down,  that  the  general  rule  of  law  under  which  a  chose  in 
action  is  incapable  of  assignment,  meets  with  no  exception  in  the  instance 
of  covenants,  save  when  they  are  to  be  performed  on  or  about  land  to  which 
they  relate.  But  although  no  covenant  can  pass  with  the  assignment  of  an 
estate  in  land,  unless  when  directly  or  by  construction  of  law,  to  be  per- 
formed upon  or  about  it,  yet  it  is  by  no  means  true,  that  in  every  such  case, 
the  capacity  for  running  with  the  land,  exists  in  the  covenant.  The  exist- 
ence of  this  capacity,  depends  not  merely  upon  the  nature  of  the  covenant 


124  smith's   leading   cases. 

and  its  relation  to  tlic  land,  but  upon  the  nature  of  the  estate  in  land  to 
which  it  relates,  and  the  absence  or  presence  of  tenure,  and  consequent 
privity  of  estate,  as  between  covenantor  and  covenantee. 

It  is  here  proposed  in  the  first  place,  to  examine  how  far  covenants,  capa- 
ble in  their  own  nature,  of  running  with  the  assignment  of  a  present  estate 
in  land,  possess  or  retain  that  capacity,  where  no  tenure  exists,  and  no 
estate  passes  between  covenantor  and  covenantee,  at  the  time  of  covenant 
made ;  where  an  estate  in  fee  is  passed  but  no  tenure  created ;  and  where 
there  is  both  an  estate  passed  and  tenure  created :  and  then  to  proceed  to 
the  determination  of  the  same  point,  where  the  assignment  on  which  the 
question  of  the  running  of  the  covenant  arises,  is  not  of  an  estate  in  pos- 
session, but  in  reversion ;  or  is  a  mere  assignment  of  an  incorporeal  here- 
ditament, of  original  and  independent  creation,  or,  severed  from  a  reversion, 
to  which  it  was  originally  attached. 

Agreeably  to  the  decision  cited  by  Coke,  from  the  42  E.  3,  3,  and  sanc- 
tioned by  his  authority,  in  favour  of  the  validity  of  the  covenant  entered 
into  by  the  prior  and  convent,  with  the  tenant  of  land  in  fee  simple,  as 
between  the  assignee  of  the  land  and  the  covenantors,  there  can  be  no  doubt 
that  the  benefit  of  a  covenant  to  do  something  about  or  relating  to  the  land 
of  the  covenantee,  made  by  a  stranger,  not  in  privity  of  contract  or  estate, 
with  a  subsequent  assignee  of  the  land,  may  pass  to  such  assignee  as  an 
exception  to  the  general  rule,  that  choses  in  action  are  not  assignable.  It 
is  under  this  doctrine  of  law,  that  the  various  covenants  for  title  and  farther 
assurance,  all  of  which  are  for  the  benefit  of  the  land,  run  with  it  to  the 
assignees,  even  when  the  original  grant  has  been  in  fee.  In  this  case,  there 
is  in  England  no  privity  of  estate  between  the  covenantor  and  covenantee, 
but  the  former  has  always  been  held  liable  to  an  action  on  covenants  by  the 
assignees  of  the  latter;  Mid.dlemore  v.  Goodale,  Croke  Car.  505;  Lewis  v. 
Campbell,  8  Taunton,  715.  The  same  rule  prevails  universally  in  this 
country,  and  covenants  for  title,  or  otherwise  for  the  benefit  of  the  land, 
run  with  it  into  the  hands  of  all  those  to  whom  it  may  subsequently  come 
by  descent  or  purchase;  White  v.  Whitney,  3  Metcalf,  81;  Slater  v.  Raw- 
son,  6  Id.  39 ;  Wyman  v.  Ballard,  12  Mass.  304 ;  Sprague  v.  Baker,  7  Id. 
586 ;  Shelton  v.  Codman,  3  Gushing,  318 ;  Fairbanks  v.  Williamson,  7 
Grecnleaf,  96 ;  Heath  v.  Whidden,  17  Shepley,  383 ;  Martin  v.  Bakei',  5 
Blackford,  232;  Suydam  v.  Jones,  10  Wend.  180;  Allen  v.  Culver,  8 
Denio,  284 ;  Markland  v.  Crump,  1  Dev.  &  Bat.  94.  And  in  the  recent 
case  of  Savage  v.  Mason,  3  Cushing,  318,  it  was  held  that  a  covenant  con- 
tained in  a  deed  of  partition  between  tenants  in  common,  which  provided  that 
party  walls  might  be  created  on  the  dividing  lines  between  their  respective 
shares,  and  that  each  would  pay  for  one  half  of  the  expense  of  every  such 
wall  before  using  it,  was  for  the  benefit  of  the  land,  and  as  such,  would  pass, 
both  as  to  the  right  conferred  and  the  obligation  imposed,  to  all  persons 
claiming  by  descent  or  assignment  under  the  original  parties  to  the  deed. 
And  where  a  covenant  was  given  for  quiet  enjoyment  against  the  covenantor, 
it  was  held  to  attach  to  the  land,  on  its  subsequent  acquisition  by  the  cove- 
nantee, and  pass  to  subsequent  assignees,  although  neither  of  the  parties 
had  any  estate  in  the  land  at  the  time  when  the  covenant  was  made ;  Fuller 
v.  Eastman,  3  Metcalf,  121. 

Lord  Coke  however  confines  the  operation  of  this  doctrine  to  those  cove- 


spencer's   case.  125 

nants  ■which  relate  to  the  land;  and  this,  from  the  law  as  announced  by 
Lord  Holt,  in  Brewster  v.  Kitchell,  and  the  general  current  of  legal  autho- 
rity in  England,  would  seem  to  mean  the  land  of  the  covenantee.  Where 
the  covenantor  charges  land  which  he  himself  holds  in  fee,  and  there  is  no 
privity  of  estate  between  the  covenantee  and  the  subsequent  assignee  of  the 
covenantor,  it  would  seem,  that  although  the  covenant  be  one  of  those  which 
are  technically  said  to  run  with  land,  and  which,  if  entered  into  by  a  lessee 
for  life  or  years,  would,  in  consequence  of  the  privity  of  estate  accruing  on 
the  assignment,  bind  his  assignee  in  favour  of  the  reversioner;  yet  as  the 
covenantee  is  a  stranger  to  the  land,  the  burden  of  the  covenant  will  not 
pass  with  the  land,  to  one  who  takes  it  by  assignment  from  the  covenantor. 
In  other  words,  although  the  benefit  of  covenants  will  enure  to  the  assignees 
of  estates  in  fee,  where  there  is  no  privity  of  contract  or  estate,  the  burden 
will  not;  although  the  covenants  be  of  a  character,  under  other  circum- 
stances, to  run  with  land,  both  as  regards  their  benefit  and  their  burden. 
Plymouth  v.  Carver,  16  Pick.  183. 

Fully  to  understand  the  case  of  Brewster  v.  Kitchell,  in  which  this  doc- 
trine came  in  question  before  the  King's  Bench,  it  must  be  kept  in  mind, 
that  the  rent  there  in  dispute,  was  the  early  common  law  rent-charge  granted 
out  of  land  by  the  tenant,  and  not  the  constructive  rent-charge  reserved  on 
a  conveyance  in  fee,  and  that  the  question  was,  as  to  the  amount  of  the  rent, 
and  not  as  to  the  liability  of  the  land  in  the  hands  of  the  assignee,  to  a  dis- 
tress for  that  amount  when  settled.  The  case  depended  on  the  question, 
whether  a  covenant  made  by  the  tenant  of  the  land,  and  grantor  of  the 
rent-charge,  to  pay  without  deduction  for  taxes,  could  be  binding  on  an 
assignee  of  the  land  from  such  covenantor,  not  in  privity  of  contract  or 
estate  with  the  covenantee,  and,  in  efi"ect,  vary  the  amount  of  rent  for  which 
he  was  liable,  by  obliging  him  to  pay  the  taxes,  without  deducting  what  he 
thus  paid  from  the  rent.  There  can  be  no  doubt,  on  comparing  together 
the  difi"erent  reports  of  the  case,  that  the  other  judges  agreed  with  Holt, 
that  the  covenant  was  not  binding  on  the  assignee  of  the  land,  as  a  cove- 
nant; but  they  were  of  opinion,  that  taking  the  deed  as  a  whole,  it  granted 
all  which  by  its  face  it  appeared  to  have  been  the  intention  of  the  grantor  to 
pass,  and  as  the  question  was  on  a  wager  as  to  the  amount  of  the  rent,  and 
not  as  to  the  form  of  the  remedy,  they  decided  for  the  plaintiff.  In  the 
English  case  just  stated,  the  burden  which  the  covenant  imposed,  was  the 
payment  of  money;  but  it  is  evident  that  the  same  law  must  apply  in  the 
case  of  any  other  burden ;  and  consequently,  although  the  assignee  in  fee 
of  land  might,  agreeably  to  the  case  of  the  prior  and  convent,  take  advan- 
tage of  a  covenant  made  by  an  entire  stranger,  with  the  assignor,  to  erect 
buildings  on  the  land,  j'et,  if  the  assignor  had  covenanted  with  the  stran- 
ger, to  erect  them  himself  for  the  stranger's  benefit,  the  burden  of  such 
covenant  would  not  pass  to  the  assignee,  nor  could  the  covenantee  compel 
him  to  execute  it. 

In  Taylor  v.  Owen,  2  Blackford,  301,  this  difi"erence  between  the  capacity 
of  the  benefit  and  the  burden  of  covenants  to  run  with  land,  where  no  privity 
of  estate  exists,  was  regarded  as  law  on  this  side  of  the  Atlantic.  The  ten- 
ant in  fee  simple  of  a  tract  of  land,  made  a  lease  of  parcel  of  the  land,  to 
be  used  for  the  sale  of  merchandize,  to  the  plaintiff  in  the  action,  Avith  a 
covenant  that  no  other  person  should  exercise  the  same  trade  on  the  residue 


126  smith's   leading    cases. 

of  the  tract.  Subsequently  the  lessor  who  had  thus  covenanted,  sold  a  por- 
tion of  the  same  tract,  not  including  the  parcel  leased,  to  the  defendant; 
who  entered  into  possession  of  his  purchase  and  exercised  the  same  trade  as 
the  lessee  of  the  first  parcel,  contrary  to  the  intent  of  the  covenant.  The 
latter  thereupon  brought  an  action  of  covenant  against  him.  It  would 
seem  from  the  decision  of  the  Supreme  Court  of  New  York,  in  the  case  of 
Norman  v.  Wells,  13  Wendell,  136,  that  the  covenant  in  this  case  was  one 
which,  as  to  its  benefit,  was  capable  of  running  with  the  land  of  the  cove- 
nantee, as  it  afi'ected  the  value  of  the  estate  granted  to  him,  and  conse- 
quently would  pass,  as  a  remedy  in  case  of  breach,  to  any  assignee  of  such 
estate,  as  against  the  covenantor,  or  the  assignee  from  him  of  the  reversion. 
In  the  present  instance,  however,  the  question  was  as  to  the  passage  of  its 
burden,  to  the  assignee  from  the  covenantor  of  other  land,  not  including  such 
reversion.  The  parties  to  the  action,  were  thus  entire  strangers  in  estate,  for 
of  course  the  fact  that  the  ownership  of  both  parcels  of  land  (the  parcel  sold 
in  fee  and  the  parcel  leased  for  years,)  was  in  the  hands  of  the  covenantor 
at  the  time  of  the  covenant  made,  could  not  establish  a  privity  of  estate 
between  such  parcels  either  before  or  after  the  sale ;  and  the  case  must 
therefore  be  viewed  as  if  there  had  been  no  lease  of  any  portion  of  the  tract 
to  the  plaintiff,  and  simply  as  a  covenant  entered  into  by  the  tenant  in  fee 
of  an  estate  with  a  stranger,  that  a  certain  thing  should  or  should  not  be 
done  on  the  land,  of  which  the  burden  was  sought  to  be  imposed  on  the 
assignee  of  the  estate.  We  have  seen  that  the  benefit  of  such  a  covenant 
will  pass  to  the  assignee  in  fee  of  the  land ;  and  in  the  present  instance  the 
court,  in  accordance  with  the  view  of  the  English  law  presented  above,  held 
that  the  burden  would  not,  and  consequently  that  no  action  could  be  sup- 
ported against  the  defendant,  to  charge  him  with  the  covenant  made  by  his 
vendor.  Had  the  defendant  however  taken  an  assignment  of  the  reversion 
of  the  premises  leased  to  the  plaintiff,  together  with  the  estate  in  fee  simple 
in  the  rest  of  the  land ;  then,  as  the  covenant  was  of  a  nature  to  run  with 
land,  (Norman  v.  Wells,  17  Wendell,  136,)  it  would,  by  the  statute  32 
Henry  8,  have  passed  with  the  reversion  and  have  rendered  him  liable  for 
the  breach,  committed  by  the  exercise  of  the  trade  against  which  it  provided. 
A  re-assignment  of  the  reversion  would,  however,  have  removed  this  lia- 
bility, since  the  obligation  it  imposed  would  have  passed  to  the  new  assignee, 
leaving  the  land,  both  directly  and  indirectly,  unaffected  by  its  burden. 

The  same  point  was  decided  by  the  Supreme  Court  of  Massachusetts,  in 
Hurd  V.  Curtis,  19  Pick.  459.  The  owners  of  different  mills,  who  drew 
the  water  which  they  used  from  the  same  stream  and  dam,  entered  into  an 
agreement,  in  which  they  covenanted  to  use  water-wheels  of  a  certain  power 
and  construction.  Subsequently,  one  of  the  mills  was  conveyed  to  the 
defendant,  and  an  action  brought  against  him  for  a  violation  of  this  agree- 
ment. But  it  was  held  by  the  court  that  in  the  absence  of  privity  of  estate, 
the  obligation  of  the  covenants  would  not  extend  beyond  the  original  parties, 
to  third  persons  claiming  under  them  by  descent  or  purchase,  and  that  the 
only  remedy  lay  in  a  suit  against  the  vendor,  under  whom  the  defendant 
came  into  possession  of  the  premises.  A  similar  view  of  the  law  was  taken 
in  Morse  v.  Aldrich,  19  Pick.  449 ;  although  it  was  decided  that  when  the 
fee  of  a  mill-dam  was  vested  in  one  man,  and  the  right  to  use  it  as  a  fish 
pond  in  another,  there  was  a  suflQcient  privity  of  estate  between  them,  to 


spencer's   case.  127 

render  a  covenant  by  the  former  to  draw  off  the  water  once  in  every  year, 
incident  to  the  land,  and  binding  on  those  in  whom  it  subsequently  vested. 
It  may  be  doubted  whether  this  decision,  can  be  sustained  on  the  ground,  on 
which  it  was  put  by  the  court.  To  constitute  pi'ivity  of  estate,  the  position 
of  the  parties  must,  it  would  seem,  be  such  as  would  formerly  have  given 
rise  to  the  relations  of  tenure,  and  if  so,  it  cannot  arise  from  the  mere  grant 
of  an  easement  out  of  an  estate  in  fee.  If,  however,  the  ground  taken  in 
Savage  v.  Mason  be  law,  and  the  character  of  a  covenant  be  dependent  upon 
the  effect  of  the  whole  agreement,  of  which  it  is  a  part,  the  covenants  in 
question  in  Morse  v.  Aldrich,  and  Hurd  v.  Curtis,  may  both  have  been  for 
the  benefit  of  the  land,  and  consequently  binding  upon  heirs  and  subsequent 
purchasers.  For  when  the  benefit  and  burden  of  an  agreement  are  so  insep- 
arably connected,  that  each  is  necessary  to  the  existence  of  the  other,  it 
would  seem  to  follow  that  both  must  go  together,  and  that  a  liability  to  the 
burden,  will  be  a  necessary  incident  to  the  right  to  the  benefit. 

In  the  case  of  Scott  v.  Burton,  2  Ashmead,  324,  is  a  dictum,  asserting 
that  where  the  owner  of  land  conveys  a  portion  of  it  in  fee,  not  only  will 
the  benefit  of  the  covenants  contained  in  the  deed  run  with  the  land  con- 
veyed, but  their  burden  will  run  with  the  unconveyed  residue,  and  be  bind- 
ing on  all  partirs  who  take  it  subsequently  by  assignment.  As  this  opinion 
is  contrary  to  the  conclusion  already  expressed  in  this  note,  and  as  the  deci- 
sions of  the  New  York  Court  of  Chancery  in  Hills  v.  Miller,  3  Paige,  254, 
and  Trustees  of  Watertown  v.  Cowen,  4  Paige,  510,  were  quoted  in  its  sup- 
port, it  may  be  well  to  examine  those  cases. 

There  can  be  no  doubt  that  the  holder  of  a  corporeal  hereditament  may 
create  out  of  it,  by  way  of  grant  or  reservation,  any  of  the  different  incor- 
poreal hereditaments  with  which  it  is,  in  its  nature,  capable  of  being  affected. 
In  this  way  the  ownership  of  land,  may  be  charged  with  rents,  commons, 
ways,  or  the  privilege  of  a  use  of  water,  light,  or  air.  Moreover,  with  the 
exception  perhaps  of  rents,  such  incorporeal  hereditaments  need  not  be 
created  as  exclusively  personal  rights,  but  may,  as  in  the  case  of  common 
appurtenant,  be  attached  to  other  corporeal  hereditaments,  so  as  to  vest  in 
succession  a  right  to  their  enjoyment  in  all  the  parties  to  whom  such  here- 
ditaments may  come  by  assignment.  North  Ipswich  Factory  v.  Batchilder, 
5  New  Hampshire,  192.  Nor  need  the  instrument  by  which  an  incorpo- 
real hereditament  of  this  sort  is  created  or  enlarged,  be  of  necessity  a  for- 
mal grant.  Although  in  the  guise  of  a  covenant,  yet  if  it  be  under  seal  and 
express  the  intention  to  grant,  the  effect  of  a  grant  will  be  given  to  it,  and 
rights  will  arise  under  it  by  assignment,  when  by  the  assignment  of  a  mere 
covenant  nothing  would  have  passed.  This  was  in  effect  the  decision  of 
the  court  in  Brewster  v.  Kitchell  already  cited,  where  though  Holt  pointed 
out,  that  the  plaintiff  took  no  right  of  action  against  the  defendant,  merely  by 
force  of  the  covenant,  the  court  decided  that  he  had  a  valid  right  of  action 
by  virtue  of  the  grant  to  which  that  covenant  amounted.  Had  he  brought 
covenant,  he  would  have  failed :  as  he  merely  brought  an  action  to  establish 
his  right  to  distrain,  to  the  amount  of  what  the  covenantg  ranted,  he  had 
judgment.  When  regarded  in  this  point  of  view,  the  decisions  in  the  New 
York  cases  cited  above,  are  fully  capable  of  being  supported,  without  resort- 
ing to  the  anomaly  of  supposing  that  a  covenant  regarding  one  piece  of 
land,  can  by  any  possibility  pass  as  to  its  burden  to  the  assignee  in  fee  of 


128  smith's    leading   cases 

such  land,  even  if,  in  consequence  of  its  affecting  the  value  of  another  piece 
granted  to  the  covenantee  at  the  time  of  covenant  made,  it  can  be  construed, 
agreeably  to  the  decision  of  Norman  v.  Wells,  into  a  covenant  running  with 
the  latter.  Such  assignee  cannot  be  regarded  as  either  in  privity  of  con- 
tract or  estate  with  the  covenantee  tenant  of  the  land  granted ;  for  his  assign- 
ment is  not  of  any  reversion  or  possibility  of  reverter  in  it,  but  of  a  distinct 
parcel,  as  unconnected  with  the  other  in  estate,  as  if  both  had  not  belonged, 
at  the  time  of  covenant  made,  to  the  same  person.  The  cases  of  Hills  v. 
Miller,  and  Trustees  of  Watertown  v.  Cowen,  were,  however,  not  actions  of 
covenant,  but  bills  in  equity  for  an  injunction,  and  they  were  decided 
exactly  on  the  principle  of  Brewster  v.  Kitchell,  that,  taking  the  whole  of 
the  writings  under  seal  together,  there  appeared  to  have  been  an  easement 
granted  out  of  the  property  charged  by  the  bill,  which  had  come  by  assign- 
ment to  the  hands  of  the  defendant;  and  as  this  easement  had  been  rendered 
by  the  intention  of  the  parties,  appurtenant  to  lands  granted  at  the  same 
time,  and  subseqently  conveyed  by  the  grantee  to  the  plaintiff,  the  latter 
recovered  on  the  grant,  though  he  could  not  have  recovered  on  the  covenant. 
The  grounds  on  which  Chancery  will  afford  relief  on  such  covenants,  are 
strikingly  illustrated  by  the  case  of  Barrow  v.  Richard,  8  Paige,  351.  Two 
lots  were  sold  at  different  periods  out  of  the  same  tract  of  land,  and  the  deeds 
of  conveyance  contained  mutual  covenants  between  the  vendor  and  the  pur- 
chasers against  the  carrying  on  certain  offensive  trades  on  any  part  of  the 
premises  in  the  hands  of  either  of  the  parties.  Subsequently  the  second 
vendee  brought  his  bill  against  the  assignee  of  the  first,  for  relief  by  injunc- 
tion against  a  breach  of  the  covenant.  Agreeably  to  the  decision  in  Taylor 
V.  Owen,  the  benefit  of  the  covenant  had  not  under  these  circumstances 
passed  at  law  to  the  plaintiff  nor  its  burden  to  the  defendant,  although  on 
the  latter  point  the  Chancellor  expressed  a  different  opinion.  But  he  held 
that  the  default  in  the  legal  remedy  would  sustain  the  equitable  jurisdiction, 
and  that  as  the  undertaking  of  the  first  vendee  had  imposed  a  charge  in  the 
nature  of  an  easement  on  that  part  of  the  estate  sold  to  him,  and  attached  it 
to  the  portion  retained  by  the  vendor,  the  resulting  advantages  and  restric- 
tions would  be  enforced  by  Chancery  according  to  the  intent  of  the  covenant 
for  and  against  all  subsequent  assignees  of  either  parcel  of  the  land. 

On  the  whole,  therefore,  we  may  infer  that  the  burden  of  covenants 
charging  land,  made  by  the  owners  with  entire  strangers  to  the  land  so 
charged,  will  not  run  with  the  land,  nor  rest  upon  the  parties  taking  it  by 
assignment,  even  when  the  covenantees  take,  by  virtue  of  the  deed  contain- 
•ing  the  covenant,  an  estate  in  other  and  distinct  land  belonging  to  the  cove- 
nantors. Moreover  the  original  covenantor  himself  will  not,  in  such  cases, 
be  liable  to  the  assignee  of  the  estate  granted  to  the  covenantee,  even  where 
the  grant  creates  a  privity  of  estate  between  the  parties,  unless  when  the 
covenant  affects  the  value  of  the  grant,  and  thus  agreeably  to  the  decision 
in  Norman  v.  Wells,  becomes  capable  of  running  with  the  land.  If  there- 
fore the  owner  of  two  contiguous  estates  grant  one  of  them  in  fee,  and 
covenant  not  to  erect  buildings  on  the  whole  or  part  of  the  other,  the  cove- 
nant will  in  general  merely  be  binding  as  such  between  the  parties.  The 
assignee  of  the  estate  unconveyed  cannot  be  made  liable  in  an  action  of 
covenant,  nor  can  the  assignee  of  the  land  granted,  support  such  an  action 
even  against  the  grantor,  unless  in  so  far  as  the  covenant,  although  to  be 


spencer's  case.  129 

performed  apart  from  the  land,  may  be  held  to  run  with  it  as  affecting  its 
value.  But  although  the  covenant  when  regarded  as  a  contract  is  binding 
only  between  the  original  parties,  yet  in  order  to  give  effect  to  their  inten- 
tion it  may  be  construed  as  creating  an  incorporeal  hereditament  (in  the  form 
of  an  easement)  out  of  the  unconveyed  estate,  and  rendering  it  appurtenant 
to  the  estate  conveyed.  From  thenceforth  all  future  assignees  of  the  estates 
in  question  will  be  regarded  as  possessing  the  rights  and  subject  to  the  obli- 
gations which  the  title  or  liability  to  such  an  easement  creates.  It  must  be 
evident  that  the  same  general  principles  will  apply,  when  the  covenant  is 
made  by  the  grantee  of  the  land  conveyed,  and  binds  him  to  avoid  or  per- 
form certain  things,  with  regard  to  the  land  which  he  takes  by  the  convey- 
ance. As  the  burden  of  covenants  does  not  run  with  land  independently  of 
tenure,  the  subsequent  assignee  of  such  land  if  conveyed  in  fee,  can  never, 
where  the  principles  of  the  Statute  Quia  Emptores  are  in  force,  be  liable  to 
an  action  on  the  covenant  as  such.  This  covenant  may  however  amount, 
as  between  the  original  grantor  and  grantee,  to  the  reservation  or  grant  of 
an  easement  appurtenant  to  the  other  land  belonging  to  the  grantor,  and 
arising  out  of  the  land  conveyed  to  the  grantee.  Where  this  is  the  case, 
the  general  law  applicable  to  easements  of  this  nature  as  already  laid  down, 
will  of  course  apply. 

In  thus  passing,  however,  from  the  question  as  to  the  transmission  with 
the  land,  of  the  burden  of  covenants  made  by  tenants  in  fee  with  entire 
strangers,  to  that  of  covenants  entered  into  with  parties,  from  whom  an 
estate  in  fee  passes  at  the  time  of  covenant  made,  the  case  becomes  much 
more  complicated.  At  common  law,  even  if  no  services  were  reserved  on 
a  feoffment  in  fee,  there  was  still  a  tenure  created;  for  the  feoffee  held  of 
the  feoffor  by  the  same  services  as  the  latter  of  the  superior  lord;  Lit.  sect. 
216;  2  Inst.  275,  511;  Coke  Lit.  143,  a.;  Spinks  v.  Tenant,  1  Rolle's 
Reports,  106.  This  tenure  always  arose  on  a  feoffment,  by  implication 
of  law,  unless  there  was  some  express  stipulation  to  the  contrary ;  2  Inst. 
63,  275. 

It  necessarily  followed  from  this,  that  privity  of  estate  growing  out  of 
tenure,  existed  as  much  between  the  feoffor  of  an  estate,  and  those  to  whom 
he  conveyed  it,  when  the  feoffment  was  in  fee,  as  when  it  was  for  life. 
In  the  latter  case  there  remained  in  him  a  reversion;  in  the  former,  what  is 
perhaps  better  designated  a  possibility  of  reverter ;  but  in  both,  the  nature 
of  his  privity  with  the  estate  conveyed,  was  such  as  to  entitle  him  to  homage 
or  fealty  from  the  party  to  whom  he  had  conveyed  it,  and  to  make  any  service 
charge  or  rent,  which  he  reserved  on  the  conveyance,  a  rent  service,  for 
which,  without  a  clause  of  distress  in  the  deed  under  which  it  arose,  he 
might  distrain  of  common  right.  Lit.  sect.  216;  Gilbert  on  Rents,  page 
12 ;  Lit.  sect.  70.  It  follows  that  there  was  a  privity  of  estate  between 
the  grantor  and  the  tenant  of  an  estate  conveyed  in  fee,  which  was  not 
destroyed  by  assignment,  since  the  former  might  still  distrain  on  the  land  in 
the  hands  of  the  assignee,  for  all  that  was  due  on  the  reservation  in  the  origi- 
nal conveyance.  Coke  Lit.  142  a.  No  doubt  therefore  can  exist,  that  this 
privity  of  estate  would  have  supported  at  that  period  in  England,  an  action  of 
covenant  against  the  assignee  of  a  tenant  in  fee  under  a  feoffment,  as  it 
still  docs  against  the  assignee  of  an  estate  for  life  created  by  feoffment; 
M'Murphy  v.  Minot,  4  New  Hampshire  R.  454;  even  where  no  reversion 

Vol.  i._9 


130  smith's   leading    cases. 

remains  in  tbe  feoffor.  The  law  with  regard  to  the  latter  class  of  estates 
is  unaffected  by  the  statute  Quia  Eoiptores,  which  extends  only  to  estates 
in  fee,  and  indicates  what  was  the  common  law  as  to  those  estates,  when 
they  held  the  same  feudal  relation  to  the  feoffor  as  estates  for  life ; 
statute  Westminster  3,  cap.  3  ;  2  Inst.  50-4.  Before  the  passage  of  that 
statute,  the  rights  of  the  feoffor  were  never  less,  and  were  in  some  cases 
greater,  towards  a  feoffee  in  fee  holding  under  him,  than  towards  a  feoffee 
for  life,(l)  and  we  must  therefore  presume  that  he  was  in  such  privity  of 
estate  with  the  assignee  from  either,  as  to  be  able  to  support  an  action 
against  him,  on  a  covenant  made  by  the  assignor,  to  whom  the  first  feoff- 
ment had  been  made.  But  the  statute  of  Quia  Emptores  having  as  far  as 
England  is  concerned,  destroyed  this  common  law  privity  of  estate  between 
feoffors  in  fee  and  those  who  were  enfeoffed  by  them ;  and  consequently 
turned  by  construction  of  law,  all  rents  reserved  on  such  conveyances 
into  rents-seek,  or  rents-charge ;  (Gilbert  on  Rents,  page  14;  Lit.  sect. 
215,  216 ;)  it  follows,  that  the  same  law  which  Lord  Holt  laid  down  in 
Brewster  v.  Kitchell,  as  applicable  to  covenants  made  by  the  tenants  of 
lands  with  third  persons  generally,  is  equally  true,  with  regard  to  covenants 
entered  into  by  grantees  in  fee  of  estates,  with  their  grantors.  Such  is  the 
legal  effect  of  the  case  of  Keppel  v.  Bailey,  cited  by  the  English  editor 
(supra),  where  it  was  decided  that  a  covenant  entered  into  by  the  proprie- 
tors of  certain  iron  works,  not  to  use  any  other  means  of  transit  for  the 
purpose  of  obtaining  lime,  than  a  railroad  belonging  to"  the  plaintiffs,  was 
not  of  a  nature  to  pass  with  a  subsequent  assignment  of  the  premises,  nor 
to  bind  the  assignees.  No  doubt  the  law  would  have  been  held  the  same 
way,  had  the  covenant  been  made  by  a  grantee  unless  the  grant  had  been 
such  as  to  create  tenure  or  privity  of  estate,  as  between  the  grantor 
and  the  subsequent  assignees.  But  in  the  recent  case  of  Hemingway  v. 
Fernandes,  3  Simons,  228,  where  the  plaintiff  had  demised  land  to  the 
proprietors  of  a  neighbouring  colliery,  to  be  used  for  the  construction 
of  a  railroad,  and  taken  from  the  lessees  a  covenant  for  themselves  and 
their  assigns,  that  they  would  carry  all  the  coal  obtained  from  the  mines 
then  worked,  or  others  thereafter  opened,  over  the  railway  upon  the 
premises  demised,  paying  the  lessors  a  certain  rent  per  ton,  it  was  held, 
that  the  covenant  was  of  a  nature  to  run  with  land,  and  that  its  burden 
would  pass  to  a  subsequent  assignee  of  the  railway  and  collieries,  and 
render  him  liable  for  its  fulfilment.  In  this  case,  it  is  obvious,  that  a  tenure 
was  created,  and  thus  the  case  was  taken  out  of  the  principal  difficulty  in 
Keppel  V.  Bailey,  and  brought  within  the  range  of  the  numerous  decisions 
which  render  the  assignee  liable  to  the  burden  of  covenants,  whenever  a 
privity  of  estate  subsists  between  him  and  the  original  grantor :  Howland  v. 
Coffin,  9  Pick.  52 ;  Torrey  v.  Wallis,  4  Gushing,  442. 

The  law  in  Massachusetts,  seems  to  be  in  accordance  with  the  rule  which 
prevails  in  Engljind ;  and  it  has  been  decided  that  the  burden  of  a  covenant 
made  by  the  grantee,  in  fee  of  land,  with  the  grantor,  to  maintain  a  highway 
passing  by  the  land  granted,  will  not  run  to  the  assignee  of  such  land,  or 
render  him  liable  to  an  action  of  covenant;  Plymouth  v.  Carver,  16  Pick. 
183.  It  may  be  doubtful,  whether  such  a  covenant  is  capable  of  running 
with  the  land  under  any  circumstances;  but  the  court  seem  to  have  decided 
the  question  on  the  ground  of  the  relation  of  the  parties  to  each  other,  and 


spencer's    case.  131 

the  absence  of  all  privity  between  tbeni.  This  case,  of  course,  equally  proves, 
that  the  burden  of  a  covenant  made  by  a  tenant  in  fee,  with  a  stranger  from 
whom  no  estate  passes  at  the  time  of  covenant  made,  will  not  be  binding  on 
an  assignee  of  the  land,  and  may  be  cited  to  that  effect,  in  conjunction  with 
Hurd  V.  Curtis,  and  Taylor  v.  Owens. 

The  state  of  the  law  in  England,  by  preventing  the  vendors  of  real  pro- 
perty from  imposing  restrictions  binding  on  the  assignees,  from  the  first  ven- 
dees, as  to  the  manner  it  which  it  should  be  enjoyed,  would  have  led  to 
inconveniences,  which  might  have  produced  a  change,  were  it  not  that  when 
lands  are  granted  there,  for  purposes  requiring  the  restraint  of  covenants 
running  with  land,  against  acts  injurious  to  the  other  grantees  of  the  same 
property,  they  are,  as  in  the  case  of  building  leases,  usually  conveyed  for 
long  terms  of  years,  and  thus  all  covenants  susceptible  of  running  with 
land,  are  made  obligatory  upon  subsequent  purchasers.  In  Pennsylvania, 
leases  for  long  terms  of  years  are  but  little  understood,  and  few  persons 
would  be  found  willing  to  accept  a  conveyance  of  anything  less  than  the 
fee.  As  the  statute  Quia  Emptores  is  not,  however,  in  force  in  that  state, 
it  would  seem  that  all  covenants  of  a  character  to  run  with  land,  under  any 
circumstances -v whatever,  will  there  be  as  binding  upon  the  assignee  of  a 
grantee  in  fee,  as  upon  the  assignee  of  a  lessee  for  life  or  years.  Sergeant 
V.  Ingersoll,  1  Wharton,  338.  In  truth,  this  conclusion  is  rendered  neces- 
sary by  the  fact  that  an  action  of  covenant  may  be  maintained  in  that  state, 
against  the  assignee  of  land,  subject  to  a  rent  reserved,  on  the  prior  convey- 
ance in  fee  to  his  assignor,  to  enforce  the  payment  of  the  rent  reserved 
in  such  conveyance  ;  Royer  v.  Ake,  3  Penna.  Reports,  461 ;  Herbaugh 
V.  Zcntmyer,  2  Rawle,  159,  while  such  is  not  the  case  in  England,  and 
could  not  be  in  Pennsylvania,  if  no  privity  of  estate  existed  between  the 
grantor  of  such  an  estate,  and  the  grantee  and  his  assigns.  Of  course,  the 
same  law  which  applies  to  the  case  of  a  covenant  to  pay  rent,  must  hold 
good  in  that  of  other  covenants  capable  of  running  with  land,  to  the  assignee 
of  a  lease  for  life  or  years  ;  and  consequently,  agreements  to  erect  back 
buildings  or  not  to  erect  them,  to  keep  open  water  courses,  to  support  ways, 
and  even  to  grind  corn,  made  with  the  grantor  of  an  estate  in  fee,  at  the 
time  of  the  grant,  will,  in  that  state,  not  only  bind  the  grantee  making  such 
agreement,  but  all  persons  taking  by  assignment  from  him,  the  same  estate 
which  he  has  received.  This  was  first  ruled  in  the  case  of  Dunbar  v. 
Jumper,  2  Yeates,  74,  where  it  was  held,  that  on  a  conveyance  in  fee,  and 
covenant  by  the  grantee  to  grind  corn  for  the  family  of  the  grantor,  an  action 
might  be  brought  against  the  assignee  of  the  grantee. 

These  principles,  and  the  conclusions  to  which  they  lead,  will  be  found 
stated  with  great  precision  and  force  of  argument,  by  Kennedy,  J.,  in 
delivering  the  opinion  of  the  court  in  the  case  of  Ingersoll  v.  Sergeant,  1 
Wharton,  348.  The  decision  there  made,  appears  to  determine  the  follow- 
ing points. 

1st.  A  rent  reserved  on  a  conveyance  in  fee,  was  a  rent-service  at  com- 
mon law,  maintained  as  such  by  the  privity  of  estate  growing  out  of  the 
relation  of  lord  and  tenant,  arising  from  the  conveyance,  and  supported  by 
the  possibility  of  reverter  to  the  grantor,  in  case  of  a  failure  of  inheritable 
blood  on  the  part  of  the  grantee. 

2nd.  The  statute  of  Quia  Emptores,  by  destroying  the  privity  of  estate 


132  smith's   leading  cases. 

which  arose  at  common  law,  on  such  conveyances,  and  removing  the  possi- 
bility of  a  reverter  in  case  of  an  escheat,  changed  all  rents  reserved  by  the 
grantor  on  conveyances  in  fee,  into  rents-charge,  since  the  party  to  whom 
they  were  reserved,  was  no  longer  the  lord  of  the  grantee,  but  a  mere 
stranger. 

3rd.  The  statute  of  Quia  Emptores  has  evidently  never  been  in  force  in 
Pennsylvania;  since  the  charter  of  Penn  provided,  that  the  lands  in  that 
state  which  were  granted  to  him  to  hold  of  the  crown  in  free  and  common 
soccage,  and  by  fealty,  were,  upon  alienation,  to  be  held,  not  immediately  of 
the  king,  but  of  Penn  himself,  for  such  estates  as  he  should  deem  expedient  j 
the  statute  of  Quia  Emptores,  to  the  contrary  notwithstanding.  This  abro- 
gation of  the  statute  of  Quia  Emptores,  was  recognized  by  the  act  of  assembly 
of  the  year  3700,  which  provided  that,  in  default  of  heirs,  lands,  if  held 
immediately  of  the  proprietary,  should  go  to  him  ;  if  not  so  held,  then  to  the 
immediate  party  of  whom  they  were  held;  indicating  that  the  old  common 
law  principle  of  subinfeudation  existed,  not  merely  between  Penn  and  his 
immediate  alienees,  but  between  those  alienees  and  the  parties  taking  under 
them.  Moreover,  in  the  case  of  Dunbar  v.  Jumper,  the  court  ruled  that  the 
burden  of  a  covenant  made  by  a  grantee  in  fee,  with  a  grantor,  ran  with  the 
land,  to  an  assignee  from  the  grantee ;  and  this  decision,  as  well  as  those 
sustaining  actions  of  covenant  for  rents  reserved,  on  conveyances  in  fee, 
against  subsequent  assignees  in  fee,  which  would  not  be  good  in  England, 
can  only  be  supported  on  the  ground  of  a  privity  of  estate  irreconcilable 
with  the  existence  of  the  statute  Quia  Emptores.  Royer  v.  Ake,  3  Penn- 
sylvania Reports,  461 ;  Ilerbaugh  v.  Zentmyer,  2  Rawle,  159. 

4th.  This  statute  not  being  in  force,  it  follows,  that  rents  reserved  on  con- 
veyances of  the  whole  fee,  remained  in  Pennsylvania  as  at  common  law  in 
England;  and  are  of  course  rents-service  capable  of  being  apportioned, 
and  entitling  the  holder  to  a  distress  of  common  right. 

The  effect  of  this  decision,  to  which  the  courts  had  been  for  some  time 
gradually  approaching,  is  to  remove  all  doubt  that  covenants,  capable,  under 
any  circumstances,  of  running  with  land,  will,  in  Pennsylvania,  pass  as  to 
their  burden  to  the  assignee  of  land  granted  in  fee,-  provided  they  are  made 
between  the  grantor  and  the  grantee,  at  the  time  of  the  grant. 

A  rent  granted  out  of  land  where  no  estate  passes  at  the  time  of  the  grant, 
is,  however,  in  Pennsylvania  as  it  was  at  common  law,  a  rent-charge,  and  by 
a  necessary  implication  from  the  decision  in  Ingersoll  v.  Sergeant,  insuscep- 
tible of  apportionment ;  so  that  a  release  of  part  of  the  land  would  release 
all.  A  covenant  to  pay  such  rent,  or  to  perform  any  other  act,  would 
necessarily  be  made  with  a  stranger  in  estate,  from  whom  the  covenantor 
takes  nothing  in  the  land,  and  would  therefore  be  merely  collateral  to  the 
land,  and  personal  to  the  covenantor,  and  could  not  agreeably  to  the  dicta  of 
Holt,  in  Brewster  v.  Kitchell,  of  Kennedy,  in  Ingersoll  v.  Sergeant,  the 
opinion  of  Piatt  in  his  Treatise  on  Covenants,  p.  475,  and  the  cases  of  Ply- 
mouth V.  Carver,  and  Taylor  v.  Owens,  bind,  or  in  any  way  affect  a  sub- 
sequent assignee  of  the  land. 

The  law  in  Pennsylvania,  with  regard  to  covenants  capable  under  any 
circumstances  of  running  with  land,  and  made  by  tenants  in  fee,  may  there- 
fore be  stated  as  follows:  When,  at  the  time  of  making  such  covenant,  an 
estate,  whether  in  fee  simple  or  tail,  for  life  or  years,  passes  from  the  cove- 


spencer's  case.  133 

nantcc  to  the  covenantor,  a  privity  of  estate  arises  between  the  parties, 
which  will  pass  to  the  assignee  of  the  land,  and  sustain  an  action  of  cove- 
nant, if  brought  against  him;  but  where  no  estate  passes,  the  covenant  is 
personal  to  the  party  making  it,  and  collateral  to  the  land  about  which  it  is 
made,  and  will  not  affect  the  assignee  of  such  land.  We  may,  consequently 
conclude  with  regard  to  that  state,  that  if  B.,  seised  in  fee  of  land  which  he 
does  not  derive  from  A.,  covenant  with  the  latter  to  pay  rent  out  of  the  land, 
or  to  erect  or  not  to  erect  houses  on  it,  the  assignee  of  the  land  will  not  be 
bound  by  the  covenant;  but  that  if  B.,  at  the  period  of  covenanting  to  such 
effect,  receive  the  estate  to  which  the  covenant  relates  from  A.,  and  assign 
the  same  estate  in  quantity  of  interest  which  he  has  received  to  C,  the  latter 
will  be  liable  to  an  action  of  covenant,  founded  on  privity  of  estate;  Hirst 
V.  Kodney,  1  Wash.  C.  C.  Reports,  375;  Royer  v.  Ake;  Herbaugh  v. 
Zentmyer.  But  if  the  assignment  to  C.  be  of  an  estate  smaller  in  quantity 
of  interest,  he  will  not  be  liable  on  the  covenants  of  the  assignor ;  Holford 
V.  Hatch,  1  Douglas,  184  ;  the  Earl  of  Derby  v.  Taylor,  1  East;  Quacken- 
boss  V.  Clark,  12  Wend.  555. 

The  recent  case  of  Van  Rensellaer  v.  Bradley,  3  Denio,  135,  seems  to 
have  proceeded  upon  the  same  view  of  the  law  with  that  taken  in  Pennsyl- 
vania, for  it  was  decided  that  rent  reserved  on  a  conveyance  in  fee  is  at  the 
present  day  in  New  York,  as  it  was  at  common  law  before  the  statute  of  Quia 
Emptores,  a  rent  service,  and  that  a  covenant  for  its  paymfent,  is  consequently 
binding  on  an  assignee  of  the  whole  or  any  part  of  the  land. 

We  have  now  seen,  that  where  a  covenant  is  capable  of  running  with 
land,  the  assignees  of  the  land  may  take  advantage  of  its  benefit ;  and  have 
examined  in  what  cases,  they  will  be  liable  to  the  burden  of  covenants 
made  by  their  assignors ;  it  now  remains  to  determine  how  far  the  benefit  or 
burden  of  covenants,  extends  to  the  assignees  from  the  covenantor  or 
covenantee,  when  not  possessed  of  the  land  at  the  time  of  assignment,  but 
merely  of  an  estate  in  reversion.  It  is  well  known  that  at  common  law  the 
assignees  of  reversions,  could  not  take  advantage  of  covenants  made  with 
their  assignors,  and  that  this,  as  far  as  it  regarded  reversions  after  estates 
for  life  and  years,  was  helped  by  the  stat.  32  Henry  8,  cap.  34 ;  Crawford 
V.  Chapman,  17  Ohio,  449 ;  Beckford  v.  Parson,  7  C.  B.  920.  This  statute 
only  extended  to  such  reversions;  Coke  Lit.  215,  a;  Winter's  case,  Dyer, 
307,  a;  Lewes  v.  Ridge,  Croke  Elizabeth,  863;  not  reaching  even  the 
case  of  the  reversion  subsisting  in  the  grantor  of  an  estate-tail ;  and  of  course 
did  not  embrace  the  possibility  of  reverter,  which  existed  in  a  Teoffor  in 
fee  at  common  law.  Lit.  sect.  216,  but  which  had  been  destroyed  by  the 
statute  of  Quia  Emptores. 

It  follows,  that  in  England,  parties  claiming  by  assignment  from  cove- 
nantees who  have  made  a  conveyance  in  fee  at  the  time  of  receiving  the 
covenant,  remain  under  the  operation  of  the  common  law,  which  forbade  the 
assignment  of  a  chose  in  action,  and  are  consequently  incapable  of  suing  the 
covenantor  or  his  assigns  in  their  own  names.  And  as  the  assignee  of  a 
rent  reserved  on  a  conveyance  in  fee,  comes  within  this  rule,  he  cannot  sue 
the  tenant  of  the  land  on  his  covenant  for  the  payment  of  the  rent;  Jlilnes 
V.  Branch,  5  M.  &  S.  411. 

The  same  doctrine  may  be  presumed  to  prevail  in  this  country,  except  in 
those  states  where  a  change  has  been  made  by  local  statutory  enactments. 


134  smith's   leading   cases. 

The  law  is,  notwithstanding,  well  settled  the  other  way  in  Pennsylvania,  by 
the  cases  of  Streaper  v.  Fisher,  1  Rawle,  155,  and  Miles  v.  St.  Mary's 
Church,  1  "Wharton,  229,  in  which  it  was  held,  that  the  assignee  of  a  ground- 
rent,  might  bring  covenant  against  the  tenant  of  the  land.  It  is  somewhat 
diflGcult  to  reconcile  these  cases  witli  principle.  Although  in  that  state  the 
feudal  connection  between  the  grantor  of  an  estate  in  fee,  and  the  grantee 
would  seem  to  exist,  yet  the  assignee  of  such  grantor  took  at  common  law 
no  right  of  action  against  the  grantee ;  and  we  have  seen  that  the  statute  of 
Henry  8  only  applies  to  reversions  after  estates  for  life  and  years;  Devisees 
of  Van  Rensselear  v.  Executors  of  Platuer,  2  Johnson's  Cases,  24 ;  Lewes 
V.  Ridge ;  "Winter's  case,  supra,  9G ;  and  it  would  therefore  appear,  that 
whether  the  statute  of  Quia  Emptores  be  in  force  or  not,  the  assignee  of  a 
ground-rent  should  not  be  entitled  to  maintain  an  action  of  covenant  in  his 
own  name.  As  the  rent  itself,  being  an  incorporeal  hereditament,  neces- 
sarily passes  to  him  by  the  assignment,  he  may  of  course  distrain ;  or  an 
action  of  covenant  may  be  brought  in  the  name  of  the  person  to  whom  the 
covenant  to  pay  it  was  first  made.  Debt  on  the  obligation  created  by  the 
covenant,  he,  of  course,  has  not  in  the  absence  of  the  covenant  itself,  and 
debt  on  the  reddendum  only  existed  at  common  law,  in  the  case  of  rents 
reserved  on  leases  for  years ;  and  the  statute  of  Anne,  which  merely  extend- 
ed the  latter  form  of  action  to  leases  for  life,  seems  not  to  be  in  force  in 
Pennsylvania.  Report  of  the  Judges  as  to  English  statutes  in  force  in 
Pennsylvania,  3  Biuney  593 ;  Abbot  of  Bury's  case,  Dyer,  33,  60,  per 
Baldwin,  C.  J. ;  Brindloss  v.  Philips,  Croke  Elizabeth,  895 ;  Bishop  of 
"Winchester  v.  Wright,  2  Lord  Raymond,  1056 ;  "V^arley  v.  Leigh,.  2  Ex- 
chequer, 446. 

It  would  appear,  therefore,  that  on  the  strict  principles  of  law,  the  as- 
signee of  a  ground-rent  cannot  bring  any  action  in  his  own  name,  to  recover 
the  rent  when  in  arrear,  but  must  resort  to  his  distress.  Much  doubt  was 
formerly  entertained  in  England,  whether  the  assignee  of  rent  reserved  on 
the  grant  of  an  estate  for  years,  could  support  any  action  to  recover  the  rent 
where  the  reversion  did  not  pass  by  the  assignment.  Austin  &  Smith's 
case,  1  Leonard,  315;  Robbins  v.  "Warwick,  1  Keble,  sed  contra,  Ard  v. 
Watkins,  Croke  Eliz.  637,  651 ;  Allen  v.  Bryan,  5  B.  &  C.  512.  The  au- 
thority of  Littleton  and  Coke  is  decisive,  that  the  assignee  of  a  rent  reserved 
on  the  conveyance  of  an  estate  in  fee,  was  without  remedy  of  any  sort, 
where  the,  services,  and  consequently  the  possibility  of  reverter,  were  ex- 
pressly excepted  out  of  the  grant,  unless  he  obtained  seisin  of  the  rent  from 
the  tenant,  and  thus  acquired  the  power  of  resorting  to  an  action  real.  Lit. 
sec.  235  ;  Coke  Lit.  139,  b.  "W^here  the  services  are  not  excepted,  but  the 
whole  interest  of  the  grantor  in  the  rent  and  its  incidents  is  passed,  as  is 
always  the  case  in  all  assignments  of  fee  farm  and  ground-rents  at  the  pre- 
sent day,  the  assignee  acquires  the  power  of  resorting  to  a  distress ;  but,  as 
it  would  seem,  no  action  personal  of  debt  or  covenant  to  recover  the  rent 
when  in  arrear.  And  Sergeant,  J.  would  seem  to  have  been  of  this  opi- 
nion, in  giving  the  decision  of  the  court  in  Kenege  v.  Elliot,  9  "Watts,  262. 
It  must,  however,  be  observed  that  the  opinion  has  been  entertained,  that 
the  assignee  of  a  reversion  after  an  estate  for  years,  .took  a  right  of  action  at 
common  law  on  the  implied  covenant  of  the  lessee,  arising  out  of  the  red- 
dendum, to  pay  the  rent,  or  fulfil  the  reservation  contained  in  it  in  any  other 


spencer's   case,  135 

manner;  Yyvyan  v.  Arthur,  1  Barn.  &  Ores.;  Harper  v.  Bird,  2  Lcvinz, 
208  ;  and  it  might,  therefore,  be  thought,  that  the  assignee  of  a  rent  reserved 
on  a  conveyance  in  fee  would,  in  the  absence  of  the  statute  of  Quia  Emptores, 
have  in  Pennsylvania  a  right  of  action  on  the  implied  covenant  of  the  red- 
dendum reserving  the  rent.  As,  however,  an  action  of  debt  cannot  be 
brought,  it  is  diflScult  to  believe  that  there  can  be  a  right  to  bring  an  ac- 
tion of  covenant,  as  that  would  more  eifectually  have  contravened  the  feudal 
policy  than  debt.  Gilbert  on  the  Action  of  Debt,  5 ;  Harper  v.  Bird,  T. 
Jones,  102.  It  is,  however,  on  this  ground  of  the  passage,  with  reversions, 
of  the  right  to  bring  an  action  on  the  implied  covenant  in  the  reddendum, 
and  not  under  the  statute  32  Henry  8,  which  is  wholly  inapplicable,  that 
the  cases  of  Streaper  v.  Fisher,  and  of  Miles  v.  St.  Mary's  Church,  decid- 
ing that  the  assignee  of  a  ground-rent  can  sue  in  covenant,  are  alone  capa- 
ble of  being  supported,  if  considered  as  resting  exclusively  on  common  or 
statute  law.  But  the  courts  of  Pennsylvania  professedly  administer  equita- 
ble principles  through  the  medium  of  common  law  forms,  and  as  the  assignee 
of  a  ground-rent,  when  destitute  of  legal  remedy,  may  no  doubt  support  a 
bill  in  equity  for  its  recovery,  there  would  seem  to  be  no  sufficient  reason 
why  he  should  not  attain  the  same  object  in  that  state,  by  an  action  of  cove- 
nant.    Livingston  v.  Livingston,  4  Johns.  Ch.  287. 

In  the  case  of  Scott  v.  Lunt's  Administrator,  7  Peters,  605,  the  Supreme 
Court  of  the  United  States  held,  in  accordance  with  the  Pennsylvania  deci- 
sions, that  the  assignee  of  a  rent  reserved  on  a  conveyance  in  fee,  might 
bring  an  action  of  covenant  against  the  covenantor  or  his  personal  represen- 
tative. Story,  J.,  in  delivering  the  opinion  of  the  court,  appears  to  have 
arrived  at  the  conclusion,  that  the  annexation  of  a  condition  of  defeasance 
to  a  grant  in  fee,  raised  some  sort  of  estate  or  interest  in  the  grantor,  even 
before  condition  broken,  and  moreover,  that  this  interest  brought  an  assignee 
from  him  within  the  32  Henry  8,  relating  to  assignees  of  reversions.  In 
support  of  this  doctrine  he  cited  the  case  of  Havergill  v.  Hare,  Croke  Jac. 
511 ;  S.  C,  2  Bulstrode,  350.  On  this  point  it  is  only  necessary  to  observe, 
that  in  Havergill  v.  Hare,  a  fine  was  levied,  by  which  the  legal  [estate  in 
the  land  was  conveyed  to  the  use  that  the  tenant  of  the  rent  and  his  assigns 
might  enter  for  rent  arrear ;  and  thus  the  point  of  law  there  discussed  was, 
merely  whether  the  assignment  of  a  springing  contingent  use,  when  coupled 
with  an  estate  which  it  was  meant  to  secure,  was  good,  if  made  before  the 
use  became  vested  in  interest.  Moreover,  there  was  in  that  case  no  condi- 
tion, and  still  less  any  reversion  in  the  tenant  of  the  rent,  since  it  was  a 
rent-charge  granted  out  of  land,  which  was  not  conveyed  by  the  grant.  Of 
course  no  condition  attached  to  or  affecting  the  land,  could  be  raised  by  the 
deed  granting  the  rent.  The  two  cases  of  Havergill  v.  Hare  and  Scott  v. 
Lunt's  Administrator,  are  consequently  not  in  pari  materia }  for  the  former 
was  of  a  rent  granted  out  of  lancl,  the  land  itself  remaining  unconveyed ;  so 
that  no  Condition  in  defeasance  of  the  estate  in  the  land  was  possible ; 
Lit.  sec.  349 ;  and  it  was  held  by  all  the  justices,  that  none  existed ;  while 
in  the  latter  there  was  a  rent  reserved  on  a  conveyance  of  the  land,  with  a 
valid  common  law  condition  of  re-entry.  One  decision  is  therefore  no  au- 
thority for  the  other;  and  it  is  evident,  that  in  the  case  in  Peters,  the  gran- 
tor could  have  had  no  estate  or  interest  in  the  land,  under  the  condition, 
even  after  breach,  if  before  entry,  and  that  his  rights  under  it  were  incapa- 


136  smith's   leading   cases. 

ble  of  assignment;  while  even  if  he  had  possessed  the  interest  attributed  to 
him  in  the  decision  of  the  court,  it  would  not  have  come  within  the  statute 
32  Henry  8. 

Whatever  may  be  the  law  on  this  subject,  as  held  in  Pennsylvania  and 
the  courts  of  the  United  States,  it  has  been  decided  in  New  York,  in  a  case 
of  great  hardship  to  the  unsuccessful  party,  that  the  assignees  of  a  fee  farm 
or  ground-rent,  are  not  within  the  statute  32  Henry  8,  and  cannot  recover 
in  an  action  of  covenant  against  the  executor  of  the  deceased  tenant  in  fee 
ou  an  express  covenant  made  by  the  testator.  Devisees  of  Van  Rensse- 
laer v.  Executors  of  Platner,  2  Johnson's  Cases,  24.  It  was  not  directly 
decided  that  the  action  could  not  be  maintained  against  the  tenant  in  fee 
then  in  seisin  of  the  estate ;  but  it  must  be  inferred  from  the  facts  of  the 
case  and  the  language  of  the  court,  since  the  plaintiffs,  who  were  devisees  of 
the  rent,  being  held  not  within  the  statute  as  to  assignees  of  reversions,  the 
case  was  said  to  be  at  common  law,  and  stronger  against  them  than  if  they 
had  been  assignees  of  a  reversion  after  an  estate  for  life  or  years,  and 
brought  an  action  of  covenant  against  the  tenant  of  the  estate  before  the 
statute,  when  such  an  action  would  certainly  have  been  bad.  In  the  pre- 
vious case  of  The  Ex'ors  of  Van  Rensselaer  v.  The  Ex'ors  of  Platner,  in  the 
same  volume  of  reports,  it  had  been  held,  that  the  defendants  were  liable  on 
the  covenant;  so  that  if  the  right  to  enforce  it  had  passed  to  the  plaintiffs 
with  the  ground-rent  under  the  devise,  they  must  have  had  judgment.  And 
the  court  in  deciding  that  the  devisees  could  not  sustain  their  action  against 
the  executors  of  the  covenantor,  necessarily  decided  that  they  could  not 
have  sued  the  covenantor  himself,  had  he  been  living,  or  his  assignee,  now 
that  he  was  dead ;  for  executors  are  always  liable  on  an  express  covenant 
of  the  testator  for  the  payment  of  money.  This  case  is,  therefore,  opposed 
to  that  of  Scott  V.  Lunt's  ad'm.,  and  appears  to  proceed  upon  the  only  sound 
view  of  the  law. 

Although  it  does  not  appear,  that  there  are  any  decisions  on  this  particular 
point  in  the  other  states,  yet  it  would  seem,  on  general  principles,  and  from 
the  cases  already  quoted,  that  in  all  those  states  of  the  Union  where  the 
common  law  forms  the  basis  of  the  system  of  jurisprudence,  and  where  there 
are  no  express  and  peculiar  statutory  enactments  to  the  contrary,  the  assignees 
of  rents  in  fee,  issuing  out  of  estates  held  in  fee,  cannot  bring  an  action  of 
debt  on  the  reddendum,  against  the  tenants  of  the  lands  charged  with  such 
rents.  The  cases  of  Milnes  v.  Branch,  5  Maule  &  Selwyn,  and  Van  Rens- 
selaer V.  Platner,  show  that  the  covenants  made  with  the  original  holders  of 
such  rents,  cannot  run  with  the  rents  themselves,  or  be  transferred  to  the 
assignees  under  any  form  of  assignment ;  and  it  would  consequently  seem 
that  the  latter,  as  a  general  proposition,  can  bring  no  action  of  covenant  in 
their  own  names  for  rent  arrear.  And  they  cannot  be  in  a  better  position, 
as  it  respects  an  action  of  debt,  than  the  parties  from  whom  they  take  by 
assignment. 

The  obstacles  which  this  doctrine  presents  to  the  recovery  of  rents  reserved 
in  conveyances  in  fee,  have  been  removed  in  New  York  since  the  case  of 
Van  Rensselaer  v.  Platner  was  decided,  by  the  Revised  Statutes,  which  put 
such  rents  on  the  same  footing  with  those  reserved  in  leases  for  life  or  years, 
and  invest  the  assignees,  with  the  right  to  use  all  the  remedies  which  could 
have  been  employed  by  their  assignors;  1  Revised  Statutes,  Part  2,  Ch.  1, 
Sects.  23,  25 ;  Van  Rensselaer  v.  Bradley,  3  Denio,  135.     On  the  other 


spencer's  case.  137 

hand,  in  Ohio,  where  the  statute  32  Henry  8,  G34,  has  not  been  adopted, 
covenants  can  only  run  with  a  present  estate  in  land,  and  cannot  be  enforced 
by  the  assignee  of  a  reversion  even  where  reserved  on  the  grant  of  an  estate 
for  life  or  years.     Crawford  v.  Chapman,  17  Ohio,  449. 

Agreeably  to  the  principles  of  the  common  law  as  already  stated,  to  pass 
to  a  third  party  the  right  of  action  on  a  covenant,  there  must,  in  all  cases, 
have  been  a  conveyance  of  some  definite  estate.  The  covenant  by  itself, 
whatever  might  be  its  nature,  was  necessarily  incapable  of  assignment  by 
deed  or  parole;  but  if  it  were  attached  to  an  estate  in  land,  any  assignee  of 
the  land  unavoidably  took  with  it  the  covenant. 

It  follows  as  a  consequence,  from  this,  that  while  between  the  original 
grantor  and  grantee  of  an  estate,  a  covenant  could  never  be  called  into  being 
without  deed ;  yet  if  it  were  capable  of  running  with  land,  any  subsequent 
assignment  of  the  estate,  even  by  parol,  carried  with  it  to  the  assignee,  a 
right  of  suit  on  the  covenant.  A  deed,  although  necessary  to  create  the 
covenant,  was  yet  unnecessary  to  transmit  it;  and  where  livery  of  seisin 
was  made,  inoperative.  Lincoln  College  case,  3  Coke,  63  ;  Noke  v.  Awder, 
Croke  Eliz.,  373,  457. 

It  was  an  inevitable  deduction  from  these  principles,  that  as  the  covenant 
did  not  pass  by  the  deed  from  the  original  grantee  of  land  to  the  assignee 
from  him,  but  only  with  the  land  when  conveyed,  whether  by  deed  or  not ; 
or  in  other  words,  as  the  covenant  did  not  and  could  not  pass  by  any  form  of 
conveyance,  but  merely,  as  an  incident  to  the  land  which  such  convey- 
ance passed,  so  when  the  original  grantee  took  no  estate  under  the  grant 
in  the  deed  containing  the  covenants,  no  subsequent  assignment  by  him 
could  transfer  them  to  the  assignee.  Being  incapable  of  a  direct  transfer, 
they  could  not  pass  by  force  of  the  assignment  itself,  nor  could  they  run 
with  the  land,  which  the  grantee  had  not  to  convey. 

When,  therefore,  it  appeared  on  the  face  of  the  declaration,  that  the 
lessee  of  land,  under  whom  the  plaintiff  in  an  action  brought  on  the  cove- 
nants in  the  lease,  against  the  lessor,  claimed  by  assignment,  took  no  estate 
by  the  demise,  the  court  held  that  the  action  could  not  be  maintained. 
Noke  V.  Awder,  Croke  Eliz.  373,  436.  The  ground  of  their  opinion  was,  that 
the  covenants  could  not  have  run  with  the  land  under  the  assignment  to  the 
plaintiff,  as  there  was  no  estate  in  the  land  on  which  it  could  operate,  and 
it  was  incapable  of  passing  them  by  its  direct  effect  as  an  assignment. 

This  doctrine  that  covenants  cannot  pass  under  the  operation  of  an  assign- 
ment, unless  the  assignment  transfers  some  estate  in  land  w^ith  which  they 
may  run,  was  again  applied  in  the  case  of  Andrews  v.  Pearce,  4  Bos.  &  PuL 
162.  The  tenant  in  tail  of  lands  made  a  lease  for  ninety-nine  years,  with  a 
covenant  for  quiet  enjoyment.  Subsequently  to  his  death,  by  which  the 
term  was  avoided,  the  lessee,  who  continued  in  possession,  assigned  his  estate 
to  the  plaintiff,  who  was  ousted  by  the  party  entitled  under  the  entail,  and 
brought  an  action  on  the  covenant  against  the  executor  of  the  lessor. 

The  plea  of  the  defendant  having  averred,  what  indeed  appeared  from 
the  declaration,  that  the  title  of  the  lessor  determined  before  the  assignment 
the  plaintiff  demurred  ;  and  argued  in  support  of  the  demurrer,  that  the  de- 
fendant was  estopped  by  the  indenture  of  lease,  from  showing  that  his  testa- 
tor's title  did  not  extend,  to  making  a  good  lease  for  the  whole  term  demised. 
The  court,  however,  without  taking  notice  of  this  objection,  decided,  that  as 


138  smith's   leading    cases. 

it  appeared  from  the  pleadings  that  no  estate  in  the  land  passed  by  the 
assignment,  the  naked  covenant  could  not  be  assigned  by  itself,  and,  there- 
fore, that  the  plaintiiF  was  not  entitled  to  recover. 

In  the  case  of  Nesbit  v.  Montgomery,  1  Taylor,  84,  will  be  found  a  judg- 
ment supporting  and  illustrating  this  doctrine  with  great  force  and  precision 
of  argument  and  language.  An  action  of  covenant  was  brought  by  the 
assignee  in  fee  of  an  estate,  who  had  received  a  conveyance  from  the  origi- 
nal grantee  then  in  possession  of  the  estate  assigned,  against  the  first  grantor, 
on  a  covenant  for  quiet  enjoyment  in  his  original  deed  of  grant.  The  decla- 
ration set  out  the  existance  of  a  title  paramount  to  that  of  the  grantor,  and 
an  eviction  of  the  assignee  under  it,  and  as  it  thus  appeared  that  the  grantee 
had  no  estate  in  the  land  at  the  time  of  the  assignment,  havinn:  taken  nothinsj 
under  the  original  grant  save  a  bare  possession,  the  court  held  that  the 
covenant  could  not  pass  to  the  assignee.  It  was  said  it  could  only  be  jxassed, 
as  incident  to  the  transfer  of  an  estate  in  the  land. 

The  same  law  will  be  found  recognized  or  applied  in  the  cases  of  Beards- 
ley  V.  Knight,  4  Vermont,  471 ;  Nesbit  v.  Brown,  1  Devereux's  Equity 
Rep.  30 ;  Randolph  v.  Kinney,  3  Randolph,  396  ;  Allen  v.  Wooley,  1 
Blackford,  149 ;  Whitton  v.  Peacock,  2  Bing.  N.  C.  411 ;  Green  v.  James, 
6  M.  &  W.  605.  The  Mayor  of  Carlisle  v.  Blamire,  8  East,  487 ;  Pargeter 
V.  Harris,  7  Q.  B.  708. 

The  consequences  of  this  doctrine  are  very  important  at  the  present  day. 
No  inconvenience  could  arise  from  it  under  the  old  common  law  except  in 
the  case  of  terms  for  years,  when  we  have  seen  its  effect  in  defeating  a 
recovery  in  Noke  v.  Awder.  But  it  did  not  apply  to  conveyances  of  freeholds, 
for  as  they  were  conveyed  by  livery  of  seisin,  an  actual  estate  was  transferred 
by  right  or  wrong  to  the  first  feoffee  in  all  cases,  and  might  pass  from  him  to 
any  subsequent  assignee.  Thus  when  a  feoffment  was  made,  although  the 
feoffor  might  have  previously  had  nothing  in  the  land,  the  feoffee  took  an 
estate  of  freehold  which  was  susceptible  of  being  transferred  to  a  second 
feoffee,  and  carrying  with  it  all  warranties  and  covenants  made  by  the  origi- 
nal feoffor. 

But  in  conveyances  taking  effect  under  the  statute  of  uses,  as  must 
all  those  which  are  intended  to  pass  an  estate  of  freehold  and  are  unaccom- 
panied by  livery,  nothing  passes  to  the  vendee  save  only  the  estate  actually 
and  legally  possessed  by  the  vendor.  Of  course,  therefore,  in  the  very  case 
in  which  the  title  to  an  estate  totally  fails,  and  in  which  the  purchaser  who 
has  taken  it  on  the  security  of  the  covenants  for  title,  entered  into  by  a  pre- 
vious vendor,  most  requires  the  assistance  of  the  principle  which  gives  to 
an  assignee,  the  right  to  sue  on  the  indemnity,  given  to  his  assignor,  he  is  left 
under  the  operation  of  the  doctrine  of  Noke  v.  Awder,  as  applied  to  our 
modern  system  of  conveyancing,  wholly  without  remedy. 

It  would  seem  moreover,  that  in  a  suit  thus  brought  by  the  assignee  of 
land  on  the  covenants  of  the  original  vendor,  he  cannot  take  advantage  of 
the  doctrine  of  estoppel,  to  prevent  the  defendant  from  setting  up  as  a  defence, 
that  no  estate  passed  by  his  deed  to  the  assignor.  For  as  the  failure  of  the 
title  must  be  set  forth  in  the  declaration,  and  a  mere  statement  of  eviction 
without  an  averment  that  it  was  under  title  paramount,  is  insulBcient ; 
Patton  V.  M'Farlane,  3  Penna.  419 ;  Kelly  v.  The  Church,  2  Hill,  105 ; 
the  plaintiff  cannot  I'ely  upon  the  estoppel,  to  support  the  title  in  opposition 


spencer's  case.  139 

to  his  own  averment :  Slater  v.  Rawson,  1  Metcalf,  450.  Moreover,  as  a 
mere  stranger  cannot  avail  himself  of  an  estoppel,  the  plaintiff  who,  by  his 
own  showing,  has  never  been  in  of  any  estate  from  the  defendant,  cannot  con- 
clude the  latter,  from  showing  the  truth  of  the  matter  to  the  court,  by  his 
plea,  if  it  be  not  fully  set  out  already  in  the  declaration  of  the  plaintiff; 
Nesbit  V.  Montgomery,!  Taylor,  84  ;  Andrews  v.  Pearce,  1  Bos.  &Pul.  158. 
It  has  been  however,  determined,  that  when  the  assignee  is  prevented  from 
takino-  advantage  of  a  covenant  by  the  want  of  any  estate  in  the  land  on  the 
part  of  his  assignor,  with  which  the  covenants  can  run,  equity  will  relieve 
him  against  the  original  vendor  by  whom  the  covenant  has  been  made,  and 
through  whose  default  the  deed  containing  it  failed  to  convey  the  land. 
Nesbit  V.  Brown,  1  Devereux's  Equity  Reports,  30.  But  an  opposite 
opinion  has  been  held  in  Virginia,  where  the  court  expressed  the  opinion,  that 
the  right  of  a  complainant  to  sue  in  equity  on  covenants  not  originally  made 
with  himself,  is  to  be  determined  by  deciding  whether  they  have  run  with 
an  estate  in  land,  so  as  to  give  him  the  power  of  bringing  an  action  at  law. 
Randolph  v.  Kinney  3  Randolph,  396. 

Notwithstanding  what  has  been  stated  above,  there  appears  to  be  no 
reason  why  an  assignee,  who  has  taken  an  estate  by  assignment  from  a  ven- 
dee, holding  under  a  deed  containing  covenants  for  title,  should  not  main- 
tain an  action  on  the  covenants,  when  any  interest  whatever  in  the  land, 
has  passed  to  him  by  the  assignment,  although  inferior  in  quantity,  to  the 
estate,  which  the  deed  to  the  first  vendee,  purported  to  convey,  and  termina- 
ted by  an  eviction  under  a  title  paramount,  accruing  subsequently  to"  the 
assignment.  Thus  in  the  case  of  Andrews  v.  Pearce,  already  cited,  if  the 
death  of  the  tenant  in  tail  who  granted  the  original  lease  for  years,  to  the 
assignor  of  the  plaintiff  in  the  action,  had  not  occurred  until  subsequently 
to  the  assignment,  the  latter  might  no  doubt  have  recovered  for  the  breach  of 
the  covenant  by  his  subsequent  eviction.  An  actual  chattel  interest  in  the 
land  would  have  passed,  and  would  have  carried  the  covenant  with  it,  not- 
withstanding its  termination  by  a  subsequent  event.  The  law  was  so  held 
in  the  case  of  Williams  v.  Burrill,  1  C.  B.  401,  433,  in  which  it  was  deci- 
ded, that  where  the  estate  of  the  assignee  does  not  become  void  until  after  the 
assignment,  he  is  entitled  to  maintain  an  action  on  a  covenant  running 
with  the  land,  against  the  executor  of  the  grantor. 

It  cannot  however  be  considered  as  settled  what  amount  of  interest  in  the 
land,  must  pass  to  carry  with  it  a  covenant,  nor  whether  a  covenant  for  the 
security  of  a  greater  estate,  could  run  to  the  assignee  'of  an  estate  at  will  if 
nothing  more  passed  under  the  deed  containing  the  covenant.  But  is  well 
settled  in  England  by  the  cases  quoted  above,  that  when  nothing  but  a  bare 
possession  passes  by  the  conveyances  from  the  covenantor  to  the  covenantee, 
and  from  the  latter  to  a  subsequent  assignee,  the  covenant  cannot  pass, 
either  by  the  direct  or  indirect  operation  of  the  assignment. 

The  general  doctrine  that  where  no  interest  passes  from  the  grantor,  the 
covenants  contained  in  the  grant  cannot  run  to  a  subsequent  assignee  from 
the  grantee,  was  applied  by  the  Supreme  Court'of  Massachusetts  in  the  cases 
of  Bartholomew  v.  Candee,  14  Pick.  167,  and  'Slater  v.  Rawson,  1  Metcalf, 
450,  and  appears  to  prevail  generally  throughout  the  United  States,  (supra.) 
It  is,  however,  materially  qualified  in  that  state  by  a  doctrine  which  had  its 
origin  there^  but  has  since  spread  into  other  parts  of  the  country.     It  has 


140  smith's   leading   cases. 

long  been  held  in  Massachusetts,  that  the  actual  possession  of  land  under  a 
claim  of  title  whether  well  or  ill  founded,  proves  or  constitutes  seisin  in  the 
sense  of  the  common  law.  This  point  was  decided  as  far  back  as  the  case 
of  Marston  v.  Hobbs,  2  Mass.  439,  and  has  been  held  the  same  way  on  a 
number  of  subsequent  occasions,  both  there  and  elsewhere.  Beaver  v.  Jack- 
son, 4  Mass.  408  ;  Twambley  v.  Henley,  id.  441 ;  Prcscott  v.  Trucman,  id. 
627;  Chapel  v.  Bell,  17  id.  213;  Wart  v.  Maxwell,  .5  Pick.  217;  Slater  v. 
Rawson,  1  Metcalf,  450  ;  Kirkendall  v.  Mitchell,  8  McLean,  145  ;  Collier 
V.  Gamble,  10  Missouri,  472  ;  Brookby  v.  Hathaway,  20  Maine,  255;  Wel- 
land  V.  Twitchell,  1  New  Hampshire,  178.  This  course  of  decision  gives 
to  a  wrongful  possession  under  a  claim  of  right,  the  character  of  an  estate, 
which,  although  voidable  by  the  entry  or  action  of  the  rightful  owner,  is, 
notwithstanding,  actual,  and  will,  unless  avoided,  ripen  under  the  statute  of 
limitations  unto  an  indefeasible  fee.  It  results  from  this  doctrine,  that  a 
conveyance  by  a  grantor  in  possession  under  a  claim  of  title,  passes  an  estate 
to  the  grantee,  which  will  carry  the  covenants  contained  in  the  conveyance, 
to  any  subsequent  assignee.  Slater  v.  Rawson,  6  Metcalf,  439.  The  same 
ground  was  substantially  taken  by  the  Supreme  Court  of  New  York,  in 
Beddoes  ex'ors  v.  Wadsworth,  21  Wend.  120,  in  which  it  was  held,  that 
when  possession  accompanies  the  deed,  the  covenants  which  it  contains  will 
pass  to  a  subsequent  assignee  from  the  grantee,  although  the  grantor  has  no 
title  at  the  time  when  it  is  executed.  And  in  the  recent  case  of  Fowler  v. 
Poling,  2  Barbour,  300,  the  doctrine  that  actual  possession  under  a  claim 
of  right,  is  equivalent  to  seisin,  and  constitutes  an  estate  in  the  land  with 
which  covenants  may  run,  was  adopted  to  its  fullest  extent,  and  said  to  fur- 
nish the  true  explanation  of  the  decisions  made  in  Beddoes  v.  Wadsworth, 
and  the  other  cases,  in  which  assignees  have  been  allowed  to  recover  on  the 
footing  of  a  naked  possession.  It  may  also  be  inferred  from  the  language 
used  in  Barker's  adm'ors  v.  M^Coy,  3  Ohio,  218;  Foote  v.  Burnet,  10  id. 
317;  and  Devore  v.  Sunderland,  17  id.  60,  that  the  Supreme  Court  of  Ohio 
hold  the  same  doctrine,  and  regard  adverse  possession  as  an  actual  estate, 
until  defeated  by  the  entry  or  action  of  the  true  owner,  and,  therefore,  suf- 
ficient to  invest  the  assignee,  with  all  covenants  incident  to  the  land  in  the 
hands  of  the  assignor.  The  doctrine  thus  held,  is  unquestionably  incon- 
sistent with  the  more  recent  English  authorities,  but  can  hardly  be  said  to 
be  repugnant  to  principle.  The  earlier  law  recognised  the  possibility  of  the 
existence  of  an  actual  seisin,  apart  from  and  hostile  to  the  true  title,  and 
held  that  the  party  by  whom  it  had  been  acquired,  might  enter  as  tenant 
into  the  chain  of  feudal  relations,  and  finally  become  invested  through  the 
operation  of  various  causes,  as  for  instance  the  descent  of  a  warranty  on  the 
rightful  heir,  the  owner  of  an  indefeasible  estate  in  fee  simple.  The  true 
owner  was  disseised,  and.  the  freehold  was  actually  vested  in  tho  disseisee, 
as  soon  as  the  ouster  of  the  former  was  complete,  and  the  possession  of  the 
latter  actual  and  exclusive,  although  liable  to  be  defeated  at  any  moment  by 
entry  or  action.  The  common  law  definition  of  a  disseisin,  was  said  by  Lord 
Mansfield,  in  Taylor  v.  Horde,  to  have  been  lost  in  the  passage  of  time,  or 
more  properly  speaking,  to  be  inapplicable  to  the  relations  of  property  and 
society,  subsisting  at  the  present  day.  And  there  can  be  no  doubt,  that  the 
English  courts  now  treat  mere  possession,  unaccompanied  by  title,  although 
actual  and  adverse,  as  wholly  destitute  of  the  characteristics  and  qualities 


spencer's   case.  141 

of  an  estate.  But  however  this  may  be,  it  is  certain  that  from  the  earliest 
periods,  adverse  possession  has  been  at  once  the  means  and  proof  of  title, 
and  that  the  statute  of  James  has  rendered  its  continuance  for  twenty  years, 
equivalent  for  all  practical  purposes  to  an  estate  in  fee.  There  is,  therefore, 
no  inconsistency  in  holding,  that  since  possession  enduring  for  a  sufficient 
length  of  time  will  confer  or  constitute  a  good  title,  it  must  be  regarded  as 
an  actual  estate  from  the  moment  of  its  commencement.  It  is  universally 
admitted,  that  the  rights  given  by  such  a  possession,  may  be  transferred 
from  one  set  of  hands  to  another,  by  any  legal  means  of  conveyance,  and 
that  the  wrongful  possession  of  different  owners  may  in  this  way  be  aggre- 
gated into  a  title,  which  is  perfectly  good  either  for  the  purpose  of  defence 
or  recovery,  and  which  is  not  marketable  only  because  its  validity  is  a  ques- 
tion of  evidence  rather  than  of  law.  Overfield  v.  Christie,  7  S.  &  R.  177 ; 
Sheetz  v.  Fitzwater,  5  Barr,  126.  What  is  yet  more  material,  is,  that  it  has 
the  quality  of  inheritance,  and  will  descend  from  an  ancestor  to  an  heir  by 
operation  of  law,  and  without  the  act  of  the  parties.  And  it  is  certainly 
inconsistent  to  hold,  that  an  interest  in  lands  is  susceptible  of  passing  by 
descent,  devise  or  grant,  that  it  may  be  made  the  foundation  of  an  entry  in 
ejectment,  and  that  if  it  continues,  it  will  become  an  indefeasible  title,  and 
yet  deny  it  the  character  of  an  estate  in  the  land  in  other  particulars.  The 
doctrine  of  Slater  v.  Rawson,  is  therefore  consistent  with  general  principles, 
and  should  undoubtedly  be  preferred  to  the  English  doctrine,  which  inter- 
poses a  technical  difficulty  in  the  way  of  the  administration  of  justice  little 
known  to  the  earlier  common  law,  and  chiefly  attributable  to  the  change  in 
the  system  of  conveyancing,  consequent  to  the  stutute  of  uses.  It  must, 
however,  be  recollected  that  under  no  view  of  the  law,  can  an  action  be  main- 
tained by  an  assignee  from  a  grantee,  when  the  grantor  was  not  in  actual  or 
constructive  seisin  at  the  time  of  the  grant,  that  is  where  he  has  neither  an 
absolute  and  adverse  possession,  nor  such  a  title  as  to  create  a  construc- 
tive possession.  For  in  the  absence  both  of  right  and  possession,  all  the 
elements  which  constitute  an  estate  are  necessarily  wanting,  and  the  cove- 
nants contained  in  the  grant  must  remain  in  the  grantee,  from  the  absence 
of  every  thing  which  can  carry  them  farther.  Slater  v.  Rawson,  1  Metcalf, 
450 ;  Devore  v.  Sunderland,  17  Ohio,  60. 

The  difference  in  the  view  taken  on  this  subject  in  England  and  in  this 
country,  is  well  illustrated  by  the  cases  of  The  Mayor  of  Carlisle  v. 
Blamire,  8  East,  487,  and  Pargeter  v.  Harris,  7  Q.  B.  708,  in  which  it 
was  decided  that  an  equity  of  redemption,  is  not  such  an  estate  in  the  land 
as  can  carry  the  benefit  of  a  covenant  for  quiet  enjoyment,  or  for  the  pay- 
ment of  rent  to  an  assignee,  and  by  that  of  White  v.  Whitney,  3  Metcalf, 
83,  where  it  was  held  that  covenants  capable  of  running  with  land,  will  pass 
with  the  assignment  of  an  equity  of  redemption,  even  when  the  assignor  has 
no  legal  estate  or  other  estate  at  the  time  when  they  are  made,  and  that  when 
a  mortgage  is  made  to  one  man  and  a  subsequent  sale  to  another,  both  the 
mortgagee  and  vendee  are  entitled  to  enforce  all  covenants,  iacident  to  the 

land  and  anterior  to  the  mort^jage. 

...•11 
There  is,  however,  more  difficulty  in  reconciling  this  decision  with  tech- 
nical principle,  than  that  made  in  Slater  v.  Rawson,  because  as  the  posses- 
sion of  the  mortgagor  is  that  of  the  mortgagee,  there  is  no  room  for  the  crea- 


142  smith's    leading   cases. 

tion  of  a  now  and  adverse  interest  in  the  former,  capable  of  passing  covenants 
running  with  the  Land  to  an  assignee  from  him,  without  reference  to  the  out- 
standing title  vested  in  the  latter.  It  is,  however,  strongly  supported  by  con- 
siderations of  reason  and  convenience,  if  not  of  abstract  law,  and  is  in  harmony 
with  the  course  of  decision  throughout  this  country,  which,  even  when  it 
docs  not  deny  the  right  of  the  mortgagee  to  the  immediate  possession  of  the 
freehold,  invests  the  mortgagor  with  the  most,  if  not  all,  the  incidents  of 
legal  as  well  as  equitable  ownership.  (See  note  to  Moss  v.  Gallimore,  infra.) 
It  is,  however,  admitted,  that  the  benefit  and  burden  of  covenants  running 
with  the  land,  will  pass  to  the  mortgagee,  as  incident  to  the  legal  estate  con- 
veyed by  the  mortgage.  McMurphy  v.  Minot,  4  New  Hampshire,  454; 
Carvis  v.  McClary,  5  id.  529,  although  this  might  perhaps  be  denied  in 
some  of  the  states  of  the  Union,  unless  he  were  actually  in  possession. 

There  are  limits  even  at  common  law  to  the  proposition  advanced  by  the 
English  editor  (supra  page  118)  that  a  covenant  will  not  run  with  an  estate 
claimed  only  by  estoppel.  In  all  cases  where  the  estoppel  of  a  conveyance 
of  land,  in  which  the  grantor  had  nothing,  takes  effect  upon  an  estate  subse- 
quently acquired,  and  actually  transfers  it  to  the  grantee,  (see  note  to 
Duchess  of  Kingston's  case,  vol.  2d.)  the  covenants  contained  in  the  origi- 
nal grant,  will  attach  themselves  to  the  estate  thus  arising,  and  will  pass  to 
any  subsequent  assignee  of  the  estate  itself,  or  of  the  reversionary  interest 
out  of  which  it  is  carved ;  Webb  v.  Austin,  7  M.  &  Gr.  700.  Sturgeon  v. 
Wingfield,  13  M.  &  W.  224. 

The  case  of  Beardsley  v  Knight,  4  Vermont,  471,  presents  some  points 
of  law  bearing  on  the  subject,  which  merit  examination.  The  court  there 
decided,  that  a  full  legal  title  to  the  land  must  pass  by  the  assignment,  in 
order  to  carry  with  it  a  covenant,  and  that  an  instrument  in  writing  with  a 
scroll  affixed,  made  by  the  pen,  within  which  was  written  the  word  seal, 
could  not  convey  such  a  title.  They  further  held  that  the  equitable  estate 
which  undoubtedly  passed,  although  accompanied  by  seventeen  years'  quiet 
possession,  would  not  authorise  a  suit,  on  covenants  running  with  the  land, 
made  by  the  defendant  at  the  time  of  his  original  conveyance  by  deed,  to  the 
party  under  whom  the  plaintiff  claimed  as  assignee.  As  it  is  so  far  from  being 
true,  that  a  deed  was  always  necessary  at  common  law  to  pass  the  title  to 
land,  that  it  was  never  necessary  when  the  estate  was  actually  in  possession 
of  the  grantor,  and  as  the  conveyance  in  the  present  case  was  a  valid  bar- 
gain and  sale,  both  under  the  statute  of  uses  and  that  of  frauds,  neither  of 
which  require  a  deed  to  raise  a  use  and  transfer  the  legal  title,  it  is  difficult 
to  understand  that  the  land  did  not  pass  absolutely  to  the  plaintiff,  whether 
the  instrument  were  sealed  or  not,  unless  there  be  some  statute  in  force  in 
Vermont,  analogous  to  the  27  Henry  8,  c.  16,  and  requiring  a  bargain  and 
sale  to  be  under  seal.  There  can  be  no  doubt,  that  there  passed  an  equita- 
ble title,  accompanied  by  possession,  and  the  court  must  be  considered  as 
deciding  that  such  a  title,  even  when  so  accompanied,  will  not  carry  a  cove- 
nant with  it,  though  of  a  character  to  run  with  land,  and  created  by  the  deed 
originally  conveying  the  property.  The  court  would  seem  to  have  thought, 
that  when  a  party  wished  to  take  advantage  of  covenants  created  by  deed, 
as  running  with  land  under  a  subsequent  conveyance  to  himself,  he  must 
show  that  such  conveyance  was  by  deed.  This  opinion  seems  altogether 
unfounded ;  for  covenants,  although  requiring  a  deed  to  call  them  into  being  in 


spencer's    case.  143 

tlic  first  instance,  ran  with  the  subsequent  conveyance  of  land  at  common 
law,  when  made  by  a  parol  assignment  of  a  chattel  interest,  or  a  feoffment  of 
the  freehold  without  deed ;  Lincoln  College  Case,  3  Coke,  63  ;  Noke  v. 
Awder,  Croke  Eliz.  373.  A  parol  agreement  cannot,  however,  run  with 
land,  even  where  made  in  the  course  of  a  verbal  or  written  lease,  and  hence 
an  action  brought  to  enforce  it,  must  be  between  the  original  parties,  and 
not  by  or  against  an  assignee  of  the  land  itself,  or  the  reversion.  Doe  v. 
Phillips,  11  Q.  B.  131 ;  Beckford  v.  Parson,  5  C.  B.  920. 

It  was  held  in  Wheelock  v.  Thayer,  16  Pick.  69,  that  the  grant  of  a  right 
to  draw  a  certain  amount  of  water  from  a  dam,  did  not  pass  an  estate  capable 
of  carrying  a  covenant  of  warranty  to  the  assignee  of  the  grantee.  A  cove- 
nant will  not  run,  it  was  said,  save  with  lands  or  tenements.  And  in  Mit- 
chell V.  Warner,  5  Connecticut,  497,  the  court  there  went  to  the  length  of 
deciding,  that  a  covenant  of  warranty  in  a  deed  of  land  did  not  embrace 
water  resting  on  the  land;  and  that  it  was  not  broken  by  the  existence  of  a 
right  in  a  third  party  to  enter  upon  the  land  warranted  and  draw  off  the 
water,  nor  by  an  actual  entry  and  diversion  of  the  water,  in  pursuance  of  the 
right.  The  distinctions  taken  in  this  case  seem  ill  founded ;  for  water 
resting  on  land  is  part  of  the  land  itself,  and  whatever  interferes  with  the 
possession  of  the  subject-matter  of  a  grant,  may  operate  as  an  eviction. 
The  former  decision  may  also  be  questioned,  so  far  as  it  proceeds  on  the 
general  principle,  that  covenants  will  not  run  with  inheritances  incorporeal;  for 
it  was  held  by  the  Common  Pleas  in  Bally  v.  Wells,  3  Wilson,  26,  after  an 
elaborate  examination  of  the  question,  that  covenants  are  as  capable  of  run- 
ning with  incorporeal  hereditaments  at  common  law,  as  with  land;  and  that 
their  capacity  for  being  transferred  by  the  assignment  of  either  species  of 
estate,  is  dependent  upon  the  same  rules. 

An  argument,  might,  perhaps,  be  drawn  from  this  determination,  in  favour 
of  the  idea,  that  a  rent  in  fee,  called  into  being  by  a  grant  or  reservation, 
will  carry  with  it  to  an  assignee,  the  right  to  sue  on  a  covenant  for  its  pay- 
mant.  A  covenant  made  for  the  benefit  of  an  inheritance  in  land,  will 
undoubtedly  pass  with  a  conveyance  of  the  inheritance,  under  all  circum- 
stances; and  in  Bally  v.  Wells,  the  court  were  of  opinion,  that  inheritances, 
corporeal  and  incorporeal,  are,  in  general,  on  the  same  footing ;  but  what- 
ever the  law  may  be  on  the  subject  of  rents,  unconnected  in  their  creation 
with  reversions,  it  would  seem,  that  if  originally  coupled  either  with  them, 
or  with  the  possibility  of  reverter  subsisting  at  common  law  in  the  grantor, 
after  a  feoffment  in  fee,  and  subsequently  separated  by  assignment,  the 
assignee  will  take  no  right  of  suit  on  covenants  to  pay  them.  Lit.  sect.  235 ; 
Coke  Litt.  159.  Of  course,  when  the  lessor  of  an  estate  for  years  assigns 
the  rent,  keeping  the  reversion  in  his  hands  the  assignee  cannot  bring  cove- 
nant for  the  non-payment.  Allen  v.  Wooley,  1  Blackford,  149.  It  is 
evident,  in  fact,  that  as  the  assignment,  both  of  rent  and  reversion,  did  not 
carry  with  it  an  express  covenant  at  common  law,  though  for  the  payment 
of  the  rent,  and  the  benefit  of  the  reversion,  the  assignment  of  the  rent,  after 
severance  from  the  reversion,  cannot  have  any  greater  effect. 

In  delivering  the  opinion  of  the  court,  in  a  recent  case  of  Willard  v.  Till- 
man, 2  Hill,  276,  it  was  held  by  Bronson,  J.,  that  a  covenant  for  the  pay- 
ment of  rent,  would  run  with  a  bare  assignment  of  the  rent,  severed  from 
the  reversion,  and  give  the  assignee  a  general  right  of  recovery,  although 


144  smith's   leading   cases. 

judgment  was  given  against  him,  upon  another  point.  This  decision,  which 
his  honor  expressed  to  be  against  his  own  understanding  of  the  general 
doctrine  of  the  law,  was  supposed  by  him  to  be  rendered  necessary,  by  the 
authority  of  the  cases  of  Ard  v.  Watkins,  Croke  Eliz.  G37,  651,  and  Allen 
V.  Bryan,  5  B.  &  C.  512,  and  by  the  previous  decision  of  the  Supreme  Court 
of  New  York,  in  Demarest  v.  Willard,  8  Cowen,  20G.  It  would  seem,  how- 
ever, that  none  of  these  decisions  are  an  authority  for  the  proposition,  that 
where  rent  is  incident  to  a  reversion,  a  covenant  for  the  payment  of  the  rent 
will  pass,  if  it  be  severed  from  the  reversion,  and  assigned  apart.  Ard  v. 
Watkins,  and  Allen  v.  Bryan,  were  actions  of  debt,  and  were  decided  in 
favour  of  the  assignee,  as  to  the  first,  because  the  defendant  who  owed  the 
rent,  and  was  liable  to  an  action  of  debt  for  its  recovery,  had  assented,  by 
attornment,  to  paying  it  to  the  assignee ;  and,  as  to  the  second,  because  the 
statute  4  Anne,  c.  16,  s.  9,  had  rendered  attornment  unnecessary.  An 
assignment  of  the  reversion  had  always,  in  the  case  of  leases  for  years, 
carried  the  right  to  sue  in  debt,  with  it  to  the  assignee,  and  by  these  deci- 
sions it  was  merely  extended  to  the  assignee  of  the  rent,  when  aided  by  an 
attornment ;  but  the  right  to  sue  in  covenant,  under  the  same  circumstances, 
did  not  pass  at  common  law,  even  to  the  assignee  of  both  rent  and  reversion  ; 
and  it  is  needless  to  repeat,  that  the  statute  32  Henry  8,  only  comes  in  aid 
when  there  is  an  assignment  of  a  reversion.  And  when  properly  construed, 
Demarest  v.  Willard,  instead  of  proving  that  the  assignee  of  a  rent,  without 
the  reversion,  can  sue  in  covenant  for  arrears  accruing,  during  the  continu- 
ance of  the  assignment,  simply  proves,  that  an  assignor  who  has  kept  the 
reversion,  but  parted  with  ,the  rent,  cannot;  not  because  the  covenant  has 
passed  to  the  assignee,  but  because  the  subject-matter  to  which  it  relates  is 
no  longer  in  the  assignor.  Not  being  entitled  to  the  money  due  on  the 
rent,  he  can  sustain  no  damage  from  its  non-payment,  and,  consequently 
can  acquire  no  right  of  action,  by  the  breach  of  the  covenant  to  pay  it. 

The  statute  32  Henry  8th,  only  applies  to  covenants  between  the  lessors 
of  land  and  their  lessees,  and  does  not  extend  to  those  made  between  the 
holder  of  a  reversion,  and  a  stranger  not  possessed  of  the  particular  estate 
on  which  the  reversion  is  dependent.  It  would,  therefore,  appear  that  a 
grantee  of  land  cannot  take  advantage  of  any  covenant  made  with  the 
grantor  with  third  persons,  where  the  estate  was  under  lease  at  the  time 
when  the  covenant  was  made,  although  of  a  nature  to  run  with  land  actu- 
ally held  in  possession.  The  New  York  revised  statutes  follow  the  statute 
of  Henry  8,  and  only  provide  for  covenants  between  landlord  and  tenant. 
It  was  notwithstanding  decided  in  Allen  v.  Culver,  3  Denio,  284,  that  the 
assignee  of  a  reversion  might  enforce  a  covenant  between  the  assignor  and 
the  defendant,  by  which  the  latter  had  made'himself  answerable  as  surety, 
for  the  payment  of  the  rent  by  the  lessee,  although  the  covenant  was  con- 
tained in  a  separate  instrument  and' not  in  the  lease  itself.  The  soundness 
of  this  decision,  for  which  no  reason  was  assigned  by  the  court,  may  be 
doubted.  But  it  cannot  be  denied,  that  when  a  covenant  is  of  a  nature  to 
run  with  land,  the  right  of  a  subsequent  purchaser  from  the  covenantee  to 
enforce  it,  ought  not  to  be  defeated  by  the  mere  circumstance  that  the  estate 
was  underlease  at  the  time  when  it  was  made,  and  that  unless  the  defendant 
in  Allen  v.  Culver  was  a  surety,  the  objection  to  the  recovery  of  the  plain- 
tiff was  one  purely  technical. 


spencer's  case.  145 

In  order  practically  to  apply  the  doctrine  regulating  the  passage  of  cove- 
nants, as  incident  to  the  assignment  of  estates,  it  is  necessary  to  examine 
what  right  of  action  on  a  covenant  running  with  land,  remains  in  a  cove- 
nantee, who  has  made  an  assignment  of  the  land  to  which  the  covenant  is 
attached. 

The  general  principle  is,  that  where  there  has  been  an  assignment  before 
breach,  the  assignee  alone  can  bring  suit,  unless  the  assignor  show  at  least 
a  continuing  possibility  of  injury  to  himself;  Bickford  v.  Page,  2  Mass. 
460;  Niles  v.  Sawtel,  7  Id.  444;  Claunch  v.  Allen,  12  Alabama,  159. 
This  rule  was  made  the  basis  of  decision  in  Kane  v.  Sanger,  14  Johnson, 
89.  In  that  case  different  parcels  of  the  land  to  which  the  warranty 
of  the  defendant  related,  had  been  assigned  by  the  plaintiff  to  different 
persons,  and  he  now  brought  suit  to  recover  for  the  subsequent  eviction  of  the 
assignees,  without  having  suffered  any  actual  loss  himself.  The  court  took 
the  distinction,  that  his  right  of  action  extended  only  so  far,  as  his  assign- 
ment had  been  accompanied  with  a  warranty  over ;  and  held,  that  where 
such  was  the  case,  as  he  was  entitled  to  support  the  action,  he  might  be 
compelled  to  make  good  the  damages  arising  from  the  breach.  The  opinion 
was  also  expressed,  that  the  assignees  were  precluded,  by  the  acceptance  of 
the  warranty  from  the  plaintiffs,  from  proceeding  on  that  originally  given 
by  the  defendant.  This  last  point  was  probably  so  held,  to  avoid  the  objec- 
tion, that  the  decision  would  expose  the  latter  to  two  distinct  actions  for  the 
same  breach.  But  in  the  subsequent  case  of  Withey  v.  Mumford,  6  Cowen, 
437,  the  court  overruled  the  latter  part  of  the  proposition,  and  held  that 
whether  there  was  or  was  not  a  second  warranty  in  the  deed  of  assignment 
of  land  by  the  grantee,  the  right  of  action  for  a  subsequent  breach,  would 
necessarily  vest  in  the  assignee  and  entitle  him  to  bring  suit.  The  same 
point  was  decided  by  the  Supreme  Court  of  Pennsylvania,  in  the  case  of 
Le  Ray  de  Chaumout  v.  Forsyth,  2  Penna.  514,  where  it  was  again  deter- 
mined, that  an  assignee  might  maintain  an  action  on  a  warranty  in  the 
original  grant,  notwithstanding  the  introduction  of  another  to  himself  in  the 
deed  of  assignment.  But  in  giving  the  opinion  in  Withey  v.  Mumford,  the 
court  had  gone  further,  and  questioned  the  right  of  a  party  who  has  parted 
with  all  his  interest  in  land,  to  recover  damages,  on  the  ground  of  a  prospec- 
tive liability,  on  the  covenants  contained  in  his  conveyance  to  the  grantee, 
and  cited  the  case  of  Booth  v.  Starr,  1  Conn.  244,  in  which  it  had  been 
determined,  that  the  assignor  could  not  bring  suit  for  the  breach  of  the  war- 
ranty to  him,  until  he  had  actually  satisfied  the  demands  growing  out  of 
his  warranty  over.  The  latter  case  was  followed  in  Chase  v.  Weston,  12 
New  Hampshire,  413,  where  the  assignor's  right  of  suit  was  held  absolutely 
dependent,  on  his  having  been  compelled  to  make  satisfaction  in  damages  to 
the  assignee.  But  in  Keith  v.  Day,  1  Vermont,  660,  671,  the  question  was 
treated  as  still  open  on  this  point;  and  the  court  contented  themselves  with 
determining  that  the  assignor  could  not  recover,  where  the  assignment  con- 
tained no  warranty  over,  as  under  such  circumstances,  he  could  not  be 
rendered  liable  for  the  subsequent  eviction.  The  law  was  held  the  same  way 
in  Markland  v.  Crump,  1  Dev.  &  Bat.  94. 

The  principle  that  the  mere  existence  of  a  covenant  in  the  covenantee, 
will  not  give  him  a  right  of  suit  where  he  has  assigned  the  interest  to  which 
it  relates,  and  thus  precluded  all  possibility  of  injury  from  any  subsequent 
Vol.  I.— 10 


146  smith's  leading   cases. 

breach,  vras  recognised  in  the  case  of  Demarest  v.  WiUard,  8  Cowen,  206. 
In  that  case,  the  lessor  of  an  estate  for  years,  having  assigned  the  rent,  but 
without  the  reversion,  brought,  after  are-assignment  to  himself,  an  action  of 
covenant,  for  the  arrears  which  accrued  during  the  continuance  of  the 
assignment  :  and  the  court  held,  that  although  the  covenant  continued  in 
liim,  and  no  right  of  action  passed  on  it  to  the  assignee  of  the  rent,  yet,  as 
he  had  no  interest  to  be  affected  at  the  time  of  the  breach,  he  could  not  reco- 
ver, notwithstanding  the  re-assignment  to  him  of  all  the  assignee's  interest. 
In  this  instance,  the  covenant  necessarily  remained  in  the  covenantor,  as  no 
estate  in  the  land  passed  with  which  it  could  run,  and  the  right  of  the  assig- 
nee to  have  brought  debt  for  the  rent,  was  a  strong  argument  to  show  that 
no  suit  could  be  sustained  by  the  assignor.  But  where  the  breach  has 
occurred  before  assignment,  the  right  of  suit  on  the  covenants  of  warranty 
and  for  title,  has  been  treated  in  this  country  as  dependent  on  considerations 
unconnected  with  the  question  of  damages.  In  Townsend  v.  Morris,  6 
Cowen,  123,  it  was  determined  that  even  when  running  with  land,  and 
intended  for  the  benefit  of  the  inheritance,  they  wei'e  covenants  personal, 
sounding  in  damages,  on  which  the  executors  of  the  covenantor  wei-e  liable, 
and  that  being  personal  remedies,  they  did  not  descend  as  to  part  after 
breach,  to  the  heir  of  one  of  two  joint  covenantees,  tenants  in  common  under 
the  deed  in  which  the  warranty  was  contained,  but  survived  to  the  other 
covenantee  and  tenant  in  common,  by  whom  the  action  was  well  brought,  for 
the  whole  damages  sustained  by  an  eviction  from  the  whole  of  the  land. 
Beddoe's  Executor  v.  Wadsworth,  21  Wendell,  121,  again  asserted,  that 
such  a  covenant,  though  annexed  to  the  realty  before  breach,  and  running 
with  the  land  to  assignees,  and  descending  to  heirs,  became,  on  breach,  a 
mere  personal  right,  and,  as  such,  survived  to  the  executor  of  the  assignee 
who  was  evicted  in  his  lifetime,  and  did  not  descend  to  his  heir.  These 
decisions  are  fully  supported  by  those  in  most  of  the  other  States  of  the 
Union.  Clark  v.  Swift,  3  Metcalf,  390 ;  Thayer  v.  Clemence,  22  Pick. 
490 ;  Bartholomew  v.  Candee,  14  id.  167  ;  Bickford  v.  Page,  2  Mass.  455  ; 
Prescott  V.  Truman,  4  id.  627 ;  Wyman  v.  Ballard,  12  id.  304;  South's 
Heirs  v.  Hoy's  Heirs,  3  Monroe,  88,  94 ;  Townsend  v.  Morris,  6  Cowen, 
123 ;  Hamilton  v.  Wilson,  4  Johns.  72  ;  Bennett  v.  Irwin,  3  id.  363 ; 
Mitchell  V.  Warner,  5  Conn.  497 ;  Heath  v.  Whidden,  24  Maine,  383 ; 
Chapman  v.  Holmes,  5  Halsted,  20;  Garrison  v.  Standford,  7  id.  261. 

From  these  cases  it  appears  that  the  general  current  of  American  autho- 
rity has  tended,  with  but  little  exception,  towards  the  position,  that  on  total 
breach,  a  covenant,  though  annexed  to  the  realty,  becomes  a  merely  personal 
right,  which  remains  with  the  covenantee  or  his  executors,  and  does  not 
descend  with  the  land  to  heirs,  nor  run  with  it  on  any  future  assignment  to 
third  parties.     Where  the  right  of  action  falls,  there  it  lies. 

It  results  from  this  doctrine,  as  generally  applied  in  this  country,  that 
where  the  nature  of  the  covenant  is  such,  as  in  the  instance  of  a  covenant  for 
seisin  or  against  incumbrances,  that  it  must  be  broken  instantaneously,  if  at 
all,  it  is  deprived  of  all  efficiency  for  the  protection  of  the  title,  in  the  hands 
of  an  assignee,  even  where  the  loss  resulting  from  the  breach  has  fallen  solely 
upon  him.  Thus  the  right  of  action  on  covenants,  originally  intended  for 
the  benefit  of  the  inheritance  in  all  subsequent  hands,  has  been  denied,  by 
this  course  of  decision,  to  the  purchaser  of  the   land,  although   the  party 


spencer's  case.  147 

really  injured, — Cbapinan  v.  Holmes,  riamilton  v.  Wilson,  Clark  v.  Swift, 
Mitchell  V.  Warner, — and  held  to  remain  in  the  original  grantee,  who  has 
perhaps,  in  reality,  not  been  a  loser ;  Bickford  v.  Page,  Garrison  v.  Saud- 
ford.  But  under  these  circumstances,  the  recovery  of  the  latter  has  been 
limited  to  nominal  damages,  unless  where  he  can  rest  his  claim  to  indemnity 
upon  having  extinguished  the  paramount  title  or  incumbrance,  weighing  upon 
the  estate  in  the  hands  of  the  assignee ;  Prescott  v.  Truman,  4  Mass.  627, 
Wyman  v.  Ballard,  12  Id.  304 ;  Rawle  on  Covenants,  129,  289 ;  when  it 
will  be  increased  to  the  full  amount  of  the  sacrifice  actually  incurred  for 
that  purpose,  unless  greater  than  the  measure  of  damages  of  the  covenant. 

At  common  law,  warranty  was  exclusively  a  covenant  real.  The  right  of 
suit,  even  after  breach,  descended  to  the  heirs ;  and  as  the  recovery  sought 
was  solely  of  lands,  the  remedy  was  in  all  cases  prosecuted  against  them,  and 
could  not  be  employed  by  or  against  the  personal  representatives  of  the 
parties. 

Thus  in  the  case  of  Pencombe  v.  Budge,  as  reported  in  Yelverton,  129, 
it  was  held,  that  where  a  feoffment  for  life  had  been  made,  expressed  in  the 
accompanying  deed  by  the  words  dedi  and  demisi,  no  action  of  covenant 
personal  could  have  been  maintained  to  recover  damages  for  an  eviction  of 
the  freehold,  but  that  as  the  feoffees  had  merely  been  dispossessed,  by  a 
third  party  claiming  under  a  prior  lease  for  years  from  the  feoffor,  and  still 
remained  seised  of  the  reversion  in  the  premises,  they  were  entitled  to  sue  on 
the  covenant  for  quiet  enjoyment,  implied  by  law  from  the  use  of  the  verb 
demisi.  This  case  was  subsequently  taken  on  error  to  the  Exchequer  Cham- 
ber, where  the  judgment  of  the  King's  Bench  below  was  affirmed ;  Ilobart, 
3.  But  from  the  report  there  given,  it  appears  that  the  deed  of  feoffment 
contained  a  clause  of  express  warranty,  and  that  the  Exchequer  Chamber 
rested  their  judgment  on  the  ground,  that  where  the  injury  was  of  a  nature 
for  which  no  real  action  would  lie,  as  in  the  case  of  the  dispossession  by  a 
tenant  for  years,  the  warranty  would  pot  fail  altogether,  but  would  be  so  con- 
strued as  to  enure  for  the  support  of  an  action  of  covenant  personal.* 

In  Chapman  v.  Holmes,  already  cited,  breaches  of  three  distinct  cove- 
nants, of  warranty, — against  incumbrances, — and  for  seisin,  were  assigned 
in  the  declaration ;  and  while  the  defendant  alleged  that  the  two  latter  had 
been  broken  before  assignment,  and  had  never  passed  to  the  plaintiff,  he  also 
insisted  that  as  the  action  was  personal  and  sounded  in  damages,  it  could 
not  be  sustained  on  the  former.  This  position  was  fully  supported  by  auth- 
orities cited  from  the  old  books  of  the  law,  and  it  was  asserted  in  the  course 
of  the  argument,  that  no  English  precedent  could  be  found  in  which  these 
had  been  disregarded,  and  a  warranty  treated  on  any  other  than  the  common 
law  footing,  or  made  the  foundation  of  another  proceeding  than  a  voucher  or 
warrantia  chartse.  It  was  however  held  by  the  court,  that  in  American,  if 
not  in  English  law,  this  part  of  the  old  system  of  common  assurances, 
although  once  so  important  and  peculiar  in  its  legal  relations,  had  become  a 
mere  covenant  personal,  and  that  the  right  of  suit  and  recovery  upon  it  was 
to  be  regulated,  by  the  ordinary  rules  governing  actions  upon  contracts  under 
seal.  A  similar  decision  was  made  in  Tabb  v.  Binford,  4  Leigh,  132.  The 
point  thus  expressly  determined,  was  tacitly  assumed  as  the  basis  of  decision 

*  See  the  learned  note  ofMr.  Justice  Williams,  on  this  case,  in  his  edition  of  flobart. 


148  smith's   leading   case  55. 

in  most  of  the  cases  just  cited,  in  which  the  nature  and  operation  of  a  war- 
ranty were  presented  for  judicially  consideration. 

Tlie  ground  taken  in  argument  in  Chapman  v.  Holmes,  with  regard  to 
the  effect  given  in  England  to  a  warranty,  is  fully  supported  by  the  author- 
ities, if  confined  to  those  instances,  in  which  the  warranty  is  attached  to  an 
estate  not  less  than  for  life,  and  the  injury  complained  of  is  one  affecting 
the  freehold.  But  when  attached  to  a  mere  chattel  interest,  such  as  a  term 
for  years,  there  is  no  room  for  the  operation  of  a  warranty  as  a  covenant 
real,  and  it  has  been  made  a  question  not  so  much  whether  it  should  be 
allowed  to  fail  altogether,  as  what  effect  should  be  given  it.  In  the  recent 
case  of  Williams  v.  Burrell,  1  C.  B.  401,  this  point  was  presented  under  the 
following  circumstances.  A  tenant  for  life  acting  under  a  leasing  power, 
granted  a  lease  for  ninety-nine  years,  by  an  indenture  containing  a  clause, 
that  the  lessor  would,  during  the  term,  warrant  and  defend  the  premises 
demised  against  all  the  world.  The  appointment  proved  to  be  void,  the 
assignee  of  the  lessee  was  evicted  by  the  remainder-man,  and  his  executor 
having  brought  an  action  of  covenant  on  the  clause  of  warranty,  the  objec- 
tion was  taken  that  at  the  most  it  was  only  a  covenant  in  law,  and  therefore 
could  not  continue  in  existence  longer  than  the  estate  to  which  it  was 
attached,  nor  enure  to  charge  the  executor  for  a  breach  accruing  after  the 
death  of  the  testator. 

But  it  was  held  by  Tindal,  C.  J.,  that  as  the  clause  in  dispute  did  not 
come  within  the  strict  legal  construction  which  would  have  applied  to  its 
words  as  being  terms  of  art,  had  the  estate  granted  been  one  of  freehold 
instead  of  a  mere  chattel  interest,  the  only  question  was  as  to  the  meaning 
of  the  words  as  understood  by  the  parties,  and  that  these  in  their  ordinary 
and  natural  sense,  amounted  to  an  express  covenant  for  the  quiet  enjoyment 
of  the  lessee  during  the  continuance  of  the  lease,  on  which  his  assignees 
might  bring  suit,  and  the  executor  of  the  lessor  be  made  liable.  And  he 
held  also,  that  as  the  only  question  in  any  instrument  is  as  to  its  meaning, 
such  meaning  whether  appearing  expressly  or  collected  by  implication,  would 
in  an  agreement  under  seal  have  the  force  of  an  express  covenant,  and  bind 
not  only  the  parties  themselves,  but  their  personal  representatives,  and  that 
the  defendants  would  therefore  be  liable,  even  if  the  direct  purport  of  the 
clause  were  a  warranty,  and  the  effect  of  a  covenant  could  only  be  given  to 
it  by  implication.  Covenants  implied  by  law  in  the  sense  contended  for  by 
the  counsel  for  the  defence,  as  standing  in  opposition  to  those  arising  out  of 
the  agreement  of  the  parties,  were  said  to  be  those  only  which  the  law  calls 
into  being  in  certain  instances,  as  incidents  to  the  creation  of  estates,  and 
which  therefore  cannot  continue  in  existence  longer  than  the  estates  to  which 
they  are  accessaries.  The  distinctions  taken  throughout  the  whole  of  this 
case,  fully  prove  that  a  warranty  still  remains  on  its  common  law  footing  in 
England,  where  the  circumstances  are  such  as  to  admit  of  its  technical  ope- 
ration. 

But  the  right  of  the  heir  to  sue  for  indemnity,  even  where  the  descent 
occurred  after  a  breach  by  eviction,  was  not  confined  at  law  to  the  case  of  a 
warrantia  chartae  or  voucher  to  warranty,  but  also  extended  to  that  of  all 
other  covenants  real ;  Fitzherbert,  N.  B.  145.  Viner's  Abridg.  Covenant, 
H.  The  tenant  of  land,  who  neglected  to  keep  such  a  covenant  for  its  con- 
veyance was  treated  as  a  deforciant;  Blackstone,  vol.  3,  174;  and  as  the 


spencer's   case.  149 

remedy  sought  by  the  writ  was  in  the  nature  of  that  now  obtained  by  a  bill 
for  specific  performance,  and  consisted  in  a  recovery  of  the  land  itself,  it 
vested  in  the  heir  as  the  party  really  injured  by  the  breach,  and  not  in  the 
executor.  In  this  form  the  action  of  covenant  has  gone  out  of  use,  its 
demand  is  now  in  all  cases  merely  for  damages,  and  unless  attached  to  an 
estate  in  land,  cannot  avail  to  give  a  right  of  action  to  any  other  than  the 
original  covenantee,  or  his  personal  representatives.  The  object  of  the 
earlier  law,  in  giving  the  writ  of  covenant  real,  which  was  to  afford  a  remedy 
to  the  party  actually  injured  by  the  breach,  was,  ho-wever,  attained  in 
Watton  V.  Cooke,  Dyer,  337,  notwithstanding  the  change  from  real  to  per- 
sonal actions,  by  holding  that  the  heir  might  sue  on  a  covenant,  entered  into 
between  his  ancestor  and  other  joint  tenants  of  land,  to  divide  it  equally 
among  all.  Here  it  is  evident,  that  the  covenant  must  have  descended  on 
the  heir,  if  at  all,  by  operation  of  law,  as  part  of  the  real  assets,  and  not  by 
running  with  the  land  in  which  he  took  no  estate.  At  the  time  when  this 
case  was  decided,  the  law  was  obviously  in  a  state  of  transition,  for  although 
the  heir  was  held  entitled  to  sue  on  a  naked  covenant  descending  to  him  by 
its  own  weight,  and  not  carried  by  an  estate  in  the  land,  yet  his  recovery 
was  in  damages,  and  not,  as  it  would  have  been  at  common  law,  of  the 
land.  And  the  decision  was  obviously  based  on  the  principle  which  is  ap- 
plied by  chancery  in  many  cases  at  the  present  day,  that  the  party  who 
would  have  been  benefited  by  the  performance,  is  entitled  to  compensation 
for  the  breach.  But  this  reasoning  did  not  satisfy  the  logical  exigencies  of 
the  common  law,  which  regarded  the  nature  of  the  right  in  the  hands  of  the 
ancestor,  as  conclusive  of  the  title  of  those  claiming  under  him  after  his 
death.  Accordingly,  it  soon  became  settled  law,  that  as  the  action  of  cove- 
nant real  had  gone  into  disuse,  and  all  covenants  were  reduced,  on  breach, 
to  mere  pecuniary  demands,  which,  if  recovered  by  the  covenantee  in  his 
life,  went  to  augment  his  personal  estate,  they  must  necessarily  obey  the 
same  rule  after  his  death,  and  vest  in  the  executor,  and  not  in  the  heir.  It 
necessarily  followed,  that  even  where  the  breach  was  of  a  covenant  for  the 
conveyance  of  land,  which  would  have  formed  part  of  the  inheritance,  if 
conveyed,  the  right  of  suit  devolved  upon  the  personal  representatives  of 
the  covenantee,  and  the  only  redress  of  the  heir  was  in  equity.  Watson  v. 
Blaine,  12  Sergeant  &  Rawle,  131.  As  this  rule  of  law  takes  effect,  even  in 
the  case  of  covenants  which  are  essentially  real,  it  necessarily  applies  to 
those  which  are  merely  personal,  although  incident  to  the  land.  When, 
therefore,  a  covenant  running  with  land,  is  converted  into  a  personal  demand 
by  a  breach  occurring  in  the  lifetime  of  the  ancestor,  the  consequent  right 
of  action  will  vest,  on  his  death,  in  the  executor,  and  not  in  the  heir.  This 
doctrine  which  has  been  shown  to  prevail  universally  in  this  country,  (supra,) 
was  applied,  in  England,  as  far  back  as  the  case  of  Lucy  v.  Levington,  2 
Levinz,  26,  where  the  right  of  action  for  the  breach  of  a  covenant  for  quiet 
enjoyment,  by  the  eviction  of  the  covenantee  in  his  life,  was  held  to  survive 
to  his  personal  representatives  after  his  death.  The  rule  is  the  same,  when 
the  question  turns  on  the  right  of  an  assignee  of  the  land,  to  recover  for  a 
breach  of  covenant  prior  to  the  assignment,  and  where  an  estate  in  reversion 
was  extended  in  the  lands  of  the  grantee,  in  consequence  of  the  failure  of 
the  grantor  to  fulfil  a  covenant  for  the'discharge  of  incumbrances,  the  right 
of  suit  was  held  to  vest  absolutely  in  him,  and  not  to  pass  with  a  subsequent 


150  smith's    leading   cases. 

assignment  of  the  reversion.  But  the  reasoning  on  •wliicli  these  decisions 
were  founded,  only  applies  when  the  covenant  has  been  finally  and  com- 
pletely converted  into  a  personal  demand  in  the  hands  of  the  covenantee, 
before  the  descent  or  assignment  of  the  lands,  for  where  it  has  not,  its  cha- 
racter still  remains  unchanged,  and  it  will  pass  with  the  land  to  the  hands 
of  subsequent  holders.  Thus  when  a  covenant  of  seisin  was  broken  nomin- 
ally as  soon  as  made,  by  the  want  of  estate  on  the  part  of  the  vendor,  but  the 
vendee  sustained  no  actual  injury  during  his  life,  the  right  to  recover  for  a 
subsequent  eviction  was  held  to  be  in  the  heir,  and  not  in  the  executor; 
Kingdon  v.  Nottle,  1  M.  &  S.  355;  4  id.  53.  It  was  decided  in  like  man- 
ner in  King  v.  Jones,  5  Taunton,  418 ;  4  M.  &  S.  188,  that  the  heir  is 
entitled  to  recover  for  an  eviction  after  the  death  of  the  ancestor,  although 
occasioned  by  a  failure  to  comply  with  a  covenant  for  further  assurance  in 
his  lifetime.  In  both  instances,  the  eviction  which  was  the  real  ground  of 
the  cause  of  action,  did  not  occur  until  after  the  death  of  the  ancestor,  and 
the  descent  on  the  heir,  and  the  point  actually  decided  was,  that  the  right 
of  suit  on  a  covenant  running  with  land,  vests  in  the  holder  of  the  land  at 
the  time  when  the  injury  happens  for  which  suit  is  brought,  and  not  when 
the  covenant  is  nominally  and  technically  broken.  But  the  language  of  the 
court  went  much  further  and  implied,  that  the  right  of  suit  on  such  cove- 
nants should  be  held  to  reside  in  the  party  on  whom  the  loss  ultimately  falls, 
without  regard  to  the  time  when  the  injury  itself  happens,  and  that  no 
action  can  be  sustained  by  the  executor  on  a  covenant  for  title,  unless  some 
special  damage  is  shown  to  the  personal  estate  of  the  testator.  In  sup- 
port of  this  view.  Lord  EUenborough  cited  the  case  of  Chamberlain  v.  Wil- 
son, 2  M.  &  S.  408,  where  it  had  been  held,  that  an  executor  cannot  sue  on 
a  promise  of  marriage  made  to  his  testator.  But  the  real  obstacle  to  the  reco- 
very of  the  executor  in  King  v.  Jones  and  Kingdon  v.  Nottle  seems  to  have 
consisted  not  in  the  absence  of  injury  to  the  personalty,  but  in  the  fact,  that 
the  injury  to  the  realty  did  not  actually  occur  until  after  the  death  of  the  tes- 
tator, and  consequently  never  vested  in  him  as  a  personal  right.  If  no  suit 
could  be  brought  by  an  executor  without  showing  an  injury  to  the  assets  in  his 
hands;  Watson  v.  Blaine,  12  Sergeant  &  Rawle,  181;  it  would  be  necessary 
either  to  deny  all  redress  on  a  covenant  for  the  conveyance  of  land  broken 
in  the  lifetime  of  the  ancestor,  or  else  to  hold  that  the  naked  right  to  dam- 
ages descends  on  the  heir,  which  would  be  a  departure  from  all  legal  ana- 
logies. And  any  attempt  based  on  the  reasoning  of  Lord  EUenborough, 
to  deprive  the  executor  of  the  right  to  recover  for  an  eviction  in  the  life 
time  of  the  testator,  can  only  result  in  a  complete  failure  of  remedy,  either 
on  his  part  or  that  of  the  heir.  For  as  an  eviction  under  title  paramount, 
must  necessarily  put  an  end  to  the  title  and  possession  of  the  covenantee, 
no  estate  can  remain  in  him  capable  of  carrying  the  covenant  either  to  an 
heir  or  assignee.  Hence,  if  the  right  of  action  fails  in  him  and  his  personal 
representatives,  it  must  fail  altogether,  for  none  can  be  brought  by  any  other 
person.  All,  therefore,  that  these  cases  can  be  fairly  considered  as  deciding 
is,  that  covenants  of  seisin  and  for  further  assurance,  are  continuing  in  their 
operation,  and  that  although  nominally  broken  by  a  refusal  to  execute  a 
necessary  assurance,  or  by  the  existence  of  a  defect  in  the  title  of  the  gran- 
tor, the  covenant  still  retains  its  capacity  of  running  with  the,  land  until  the 
breach  is  completed  by  an  actual  or  constructive  eviction.     That  this  is  the 


spencer's   case.  151 

true  interpretation  of  the  decisions  in  King  v.  Jones  and  Kingdon  v.  Nottle, 
appears  from  the  more  recent  decisions  in  llaymond  v.  Fitch,  2  C.  M.  & 
II.  588,  and  Ricketts  v.  Weaver,  12  M.  &  W.  715,  in  which  it  was  held, 
that  the  executor,  and  not  the  heir,  is  the  person  to  sue  for  the  breach  of  a 
covenant  to  repair,  or  against  felling  timber,  although  it  is  evident  that  the 
resulting  injury  must  fall  chiefly,  or  exclusively,  on  the  inheritance.  And 
when  thus  understood,  King  v.  Jones  and  Kingdon  v.  Nottle  cease  to  be 
inconsistent  with  the  earlier  cases  of  Lucy  v.  Levington  and  Lewes  v. 
Ridge,  where  the  eviction  occurred  in  the  lifetime  of  the  ancestor,  and  the 
right  of  suit  which  was  complete  in  his  hands,  necessarily  remained  in  him- 
self or  his  executor,  instead  of  passing  to  the  heir  or  assignee. 

Although  the  rule  with  regard  to  the  effect  of  a  breach  on  the  capacity 
of  covenants  to  run  with  land,  seems  to  be  the  same  on  both  sides  of  the 
Atlantic,  its  application  is  unquestionably  different.     The  English  courts 
hold  that  the  breach  must  be  final  and  actual,  and  that  the  covenant  does 
not  acquire  the  character  of  a  chose  in  action,  until  the  right  of  suit  upon 
it  is  complete ;  while  it  is  held  with  us,  that  a  nominal  breach  is  sufficient 
to  arrest  the  covenant  in  the  hands  of  the  covenantee,  and  prevent  it  from 
passing  with  a  subsequent  transfer  of  the  land ;  Greenby  v.  "Wilcocks,  2 
Johnson  1;    Collier  v.    Gamble,   10  Missouri,  467;   Harker  v.  Storer,  8 
Maine,  228;  Ross  v.  Turner,  2  English,  122;  Mitchell  v.  Warner,  5  Conn. 
497 ;  Davis  v.  Lyman,  6  Id.  243 ;  Rawle  on  Covenants  for  Title,  289.    The 
difference  thus  existing  is  the  more  remarkable,  from  the  fact  that  our 
courts  concur  with  the  English,  on  the  point  that  only  nominal  damages  can 
be  recovered  on  the  covenant  against  incumbrances,  until  actual  injury  or 
eviction ;  Prescott  v.  Trueman,  4  Mass.  G27 ;  Wyman  v.  Ballard,  12  Id. 
504;  Sprague  v.  Baker,  17  Id.  588;  Tuft  v.  Adams,  8  Pick.  547;  Harlow 
V.Thomas,   15  Id.  66;  Delavergue  v.  Norris,  7  Johnson,  358;  Beam  v. 
Mayo,  5  Maine,  94 ;  Richardson  v.  Dorr,  5  Vermont,  9 ;  Collier  v.  Gamble, 
10  Missouri,  467.     And  it  might  have  been  thought,  that  as  the  obstacle 
to  the  passage  of  a  covenant  which  has  been  broken,  is  technical,  and 
depends  upon  the  conversion  of  the  covenant  into  a  chose  in  action,  it  would 
not  arise  when  this  conversion  is  merely  nominal,  and  that  when  the  right 
to  actual  damages  arises,  after  the  land  has  passed  out  of  the  hands  of  the 
covenantee  by  descent  or  assignment,  the  remedy  on  it  would  vest  in   the 
heir  or  purchaser.     The  latter  opinion  was  adopted  in  the  first  instance  in 
Massachusetts,  where  it  was  decided  that  although  a  covenantee  might  reco- 
ver nominal  damages,  for  the  breach  of  a  covenant  against  incumbrances, 
which  had  occurred  at  the  moment  of  the  execution  of  the  deed,  the  sub- 
stantial right  of  suit  vested  in  the  assignee,  who  had  been  the  party  actually 
evicted;  Wyman  v.  Ballard,  12  Mass.  304;  Sprague  v.  Baker,  17  Id.  588. 
The  law  was  held  the  same  way  in  McCrady's  ex' or  v.  Brisbane,  1  Nott  & 
McCord,  104.     But  the  later  decisions  in  Massachusetts,  have  abandoned 
this  ground,  and  adopted  the  more  arbitrary  and  technical  rule,  which  pre- 
vails in  New  York  and  most  of  the  other  States  of  the  Union,  that  the  pas- 
sage of  the  covenant  is  arrested  equally,  whether  the  breach  be  real  or  nomi- 
nal ;   Thayer  v.  Clemence,  22  Pick.  494 ;  Clark  v.  Swift,  3  Metcalf,  390. 

The  English  doctrine  on  this  subject,  was  notwithstanding  followed  by  the 
Supreme  Court  of  Indiana  in  Martin  v.  Baker,  5  Blackford,  232;  where  it 
was  held,  that  the  capacity  of  covenants  to  run  with  land,  does  not  cease 


152  smith's    leading    cases. 

until  thej  are  actually  and  not  merely  nominally  broken,  and  tliat  the  heir 
is  entitled  to  sue  for  an  injury  occurring  after  the  death  of  the  ancestor,  in 
consequence  of  a  technical  breach  in  his  lifetime.  And  the  court  seem  to 
have  been  disposed  to  go  further,  and  hold  that  the  right  of  suit  vests  in  the 
party  who  is  the  loser  by  the  injury,  irrespectively  of  the  time  at  which  it 
has  happened.  On  the  other  hand,  the  Supreme  Court  of  Ohio  concur  with 
the  general  course  of  decision  in  this  country,  on  the  point  that  the  right  of 
suit  vests  finally,  as  soon  as  the  covenant  is  broken,  but  hold  that  the  pur- 
pose of  covenants  for  title  is  satisfied,  so  long  as  the  possession  taken  under 
the  deed  remains  undisturbed,  and  that  no  breach  occurs  until  actual  injury 
or  eviction.  It  necessarily  follows  that  whatever  may  be  the  state  of  the 
title  at  the  time  of  the  grant,  the  covenant  is  not  broken  until  the  grantor 
or  his  assignee  is  evicted,  or  obliged  to  make  some  sacrifice,  in  order  to 
avoid  an  eviction,  and  that  the  right  of  suit  vests  in  the  party  who  holds 
the  land  at  that  period ;  Backus's  ad' or  v.  McCoy,  3  Ohio,  218 ;  Foote  v. 
Burnet,  10  Id.  317.  But  it  has  also  been  decided,  that  where  the  grantor 
has  neither  title  nor  possession,  and  is  consequently  unable  to  transfer  either 
the  actual  enjoyment  of  the  land,  or  the  title  to  •enjoy  it,  to  the  grantee,  the 
covenant  for  seisin  is  broken  as  soon  as  made,  and  becomes  a  mere  right  of 
action,  insusceptible  of  passing  to  a  subsequent  assignee;  Devore  v.  Sun- 
derland, 17  Ohio,  60. 

There  can  be  no  doubt  of  the  soundness  of  this  decision,  whatever  may 
be  thought  of  the  reasoning  on  which  it  is  founded,  for  as  under  these  cir- 
cumstances, no  estate  or  possession  vests  in  the  grantee  to  carry  the  covenant 
to  a  subsequent  assignee,  he  cannot"  recover  under  any  view  of  the  law,  either 
on  the  covenant  for  seisin,  or  on  any  of  the  other  covenants  for  title,  (supra.) 

It  has  been  said  in  some  cases,  that  when  the  grantor  is  not  seised  inde- 
feasibly  at  the  time  of  the  conveyance,  the  covenant  for  seisin  is  instanta- 
neously and  totally  broken,  and  the  grantee  is  entitled  to  recover  the  full 
amount  of  the  consideration  paid  for  the  deed,  without  waiting  for  an  actual 
eviction ;  Kichardson  v.  Dorr,  5  Vermont,  9 ;  McCarty  v.  Liggett,  3  Hill, 
13-1;  Bingham  v.  Weiderwax,  1  Comstock,  509.  If  this  be  the  law,  it  must 
necessarily  follow  that  the  decision  in  Kingdon  v.  Nottle  is  erroneous,  and 
that  as  the  covenant  is  converted  into  a  mere  personal  demand,  it  cannot 
pass  with  a  subsequent  descent  or  assignment,  under  the  rule  generally  held 
in  this  country,  and  applied  in  England  in  Raymond  v.  Fitch.  But  it  has 
been  held  on  other  occasions,  that  when  the  title  conveyed,  although  bad  at 
the  time,  becomes  valid  subsequently,  the  recovery  of  the  grantee  will  fail 
altogether,  or  be  reduced  to  nominal  damages;  Garfield  v.  Williams,  2  Ver- 
mont ;  Wilson  v.  Forbes,  2  Devereux,  30 ;  Conway  v.  Silliman,  4  Id.  46 ; 
Baxter  v.  Bradbury,  7  Maine,  260;  Spring  v.  Chase,  9  Id.  505.  It  would 
therefore  appear,  that  in  the  case  of  this  covenant,  as  in  that  of  the  other 
covenants  for  title,  the  right  of  action  should  be  held  to  depend  on  the 
actual,  and  not  on  the  nominal  breach,  and  should  consequently  vest  in  the 
holder  of  the  land  at  the  time  when  the  action  happens ;  Rawle  on  Cove- 
nants for  Title,  281—307. 

The  conclusion  of  the  Supreme  Court  of  Ohio,  with  regard  to  the  cove- 
nants for  seisin,  and  against  incumbrances,  seems  to  be  substantially  just, 
although  some  steps  in  the  reasoning  by  which  it  was  attained,  may  be 
doubted.     Two  different  constructions  may  be  put  on  these  covenants,  each 


spencer's    case.  153 

consistent  with  itself,  tliough  not  with  the  other.  Under  the  one  they  are 
•viewed  as  absolute,  and  present  engagements  that  the  grantor  has  a  good  and 
unencumbered  title,  and  are  consequently  broken  at  once,  if  his  title  be  bad 
or  encumbered,  although  no  loss  has  been  sustained  by  the  covenantee.  But 
they  are  regarded  under  the  other  as  substantially  covenants  of  indemnity, 
and  as  undertaking,  not  that  the  title  of  the  covenantor  is  absolutely  good, 
but  that  the  grantee  shall  be  saved  harmless,  if  it  prove  defective.  The 
hardship  of  making  the  vendor  answerable,  in  cases  where  the  vendee  has 
not  been  injured,  has  induced  the  courts  to  recede  from  the  former  construc- 
tion, as  it  regards  the  covenant  against  encumbrances,  and  to  hold  that  the 
vendee  cannot  found  a  right  to  actual  damages,  on  the  mere  existence  of  an 
incumbrance,  and  will  be  confined  to  a  nominal  recovery,  unless  he  has  sus- 
tained some  real  injury;  Prescott  v.  Truman,  4  Mass.  G27 ;  Wyman  v.  Bal- 
lard, 12  Id.  304;  Sprague  v.  Baker,  17  Id.  588;  Tuft  v.  Adams,  8  Pick. 
457 ;  Lif&ngwell  v.  Elliott,  lb.  457 ;  Harlow  v.  Thomas,  15  lb.  66 ;  Dela- 
vergue  v.  Norris,  7  Johnson,  358 ;  Bean  v.  Mayo,  5  Maine,  94 ;  Kichard- 
son  V.  Dorr,  5  Vermont,  9;  Stannard  v.  Eldridge,  16  Id.  254;  Collier  v. 
Gamble,  1  Missouri,  467;  Pomeroy  v.  Burnet,  8  Blackford,  142;  Whislerv. 
Hicks,  5  Id.  100.  The  reasoning  on  which  these  decisions  proceed,  would 
seem  equally  applicable  to  the  covenant  for  seisin,  when  the  grantee  goes 
into  possession  under  the  deed.  And  as  it  can  serve  no  good  purpose  to 
give  a  right  of  suit  for  mere  nominal  damages,  it  is  obviously  better  to  adopt 
the  construction  followed  in  Ohio,  and  hold  that  both  these  covenants  are 
technically,  as  well  as  actually,  covenants  of  indemnity,  which  removes 
all  doubt  as  to  the  right  of  the  heir  or  assignee,  to  sue  for  an  eviction  occur- 
ring after  the  descent  or  assignment. 

It  is  proper  to  observe,  that  the  covenant  for  seisin  is  construed  in  many 
of  the  States  of  this  country,  as  nothing  more  than  an  undertaking  that  the 
graptor  has  actual  or  constructive  possession  of  the  land,  and  is  satisfied 
whenever  possession  accompanies  the  deed,  although  wholly  unprotected  by 
title,  and  defeated  immediately  afterwards  by  the  entry  of  the  true  owner; 
Fowler  v.  Poling,  2  Barbour's  S.  C,  300;  Kawle  on  Covenants  for 
Title,  37.  This  necessarily  involves  the  conclusion,  that  as  the  cove- 
nant cannot  be  broken,  unless  the  grantee  fail  to  obtain  either  title  or  pos- 
session, the  breach,  if  any,  must  be  final  and  total  in  the  first  instance,  and 
the  right  of  action  cannot  pa§s  to  a  subsequent  assignee;  Marston  v.  Hubbs, 
2  Mass.  433;  Bartholomew  v.  Candee,  14  Pick.  167;  Ross  v.  Turner,  2 
English,  22 ;  Hacker  v.  Stone,  8  Maine,  228.  This  doctrine  has  however 
been  rejected  in  many  of  the  States,  and  seems  equally  inconsistent  with 
authority  and  reason,  for  although  a  defeasible  possession  may  be  so  far  an 
actual  estate,  as  to  carry  the  covenants  contained  in  the  deed  to  an  assignee, 
this  is  no  reason  for  holding  that  it  satisfies  their  requisitions,  unless  it  is 
rightful  and  sustained  by  title  ;  Richardson  v.  Dorr,  5  Vermont,  9  ;  Lock- 
wood  V.  Sturdevant,  6  Conn.  305;  Devore  v.  Sunderland,  17  Ohio,  10. 

It  is  well  settled,  that  the  transfer  of  the  obligation  of  an  express  cove- 
nant running  with  land,  to  an  assignee,  does  not  discharge  the  original  cove- 
nantor, even  when  the  covenant  is  for  the  payment  of  rent,  and  the  assignee 
is  accepted  as  tenant  by  the  covenantee ;  Dewey  v.  Dupuy,  2  W.  &  S.  556. 
"When,  however,  the  covenant  is  implied  by  the  words,  yielding  and  paying, 
in  the  reddendum,  the  assignor  will  be  discharged,  if  the  rent  be  accepted 


154  smith's   leading    cases. 

from  the  assignee,  although  not  by  the  mere  fact  of  assignment,  without 
such  acceptance;  Kiinptou  v.  Walker,  9  Vermont,  191;  Wilkins's  case,  3 
Coke,  22.  Its  obligation  will  bind  every  subsequent  assignee  of  the  land, 
and  may  be  enforced  by  subsequent  assignees  of  the  reversion,  subject  to 
the  qualification,  that  the  burden  of  covenants  does  not  attach  to  land  in  the 
absence  of  privity  of  estate,  (supra.)  But  when  the  covenant  relates  to 
matters  collateral  to  the  land,  its  operation  will  be  confined  strictly  to  the 
original  parties  to  the  contract,  and  will  not  extend  to  third  persons  claiming 
under  them  by  assignment.  Thus  a  covenant,  in  a  lease  of  a  manufactory, 
that  certain  tools  and  chalk-stones  used  for  manufacturing  purposes,  shall  be 
considered  as  a  part  of  the  premises  demised,  and  be  delivered  up  at  the  end 
of  the  term,  will  not  bind  an  assignee  of  the  land,  and  cannot,  as  it  would 
seem,  be  enforced  against  the  lessee  by  an  assignee  of  the  reversion ;  Allen 
v.  Culver,  3  Denio,  284.  In  deciding  this  case,  the  court  cited  and  relied 
on  Spencer's  case,  to  the  point  that  if  a  lessee  covenant  to  redeliver  stock 
or  money  demised  with  the  land  at  the  end  of  the  term,  the  assignee 
will  not  be  bound  by  the  covenant. 

In  Suydam  v.  Jones,  10  "Wendell,  180,  an  interesting  decision  was  made, 
giving  the  character  of  negotiability,  to  the  transfer  of  covenants  running 
with  land,  and  deciding,  that  they  are  not  liable  in  the  hands  of  an  assignee 
of  the  land,  to  equities,  created  between  the  grantor  and  grantee  at  the 
time  the  covenant  was  made  by  the  grantor.  Covenants,  in  general,  of 
course,  cannot  be  transferred  by  the  mere  act  of  the  parties,  so  as  to  give 
the  assignee  a  right  to  sue  at  common  law,  in  his  own  name ;  and  in 
Pennsylvania,  where  such  a  right  of  suit  has  been  given  to  the  assignee 
of  specialties  for  the  payment  of  money,  the  latter  in  availing  himself  of  it, 
is  liable  to  all  equities  between  his  assignor,  and  the  party  originally  cove- 
nanting, even  although  they  may  have  arisen  after  assignment,  if  before 
notice.  But  from  decisions  in  New  York,  it  appears,  that  where  the 
covenant  runs  with  an  assignment  of  land,  and  passes  by  implication  of 
law,  no  equity  between  the  original  covenantee  and  covenantor,  will  avail 
the  latter  as  a  defence  to  an  action  brought  by  the  assignee,  unless,  perhaps, 
when  there  is  actual  notice  of  its  existence  at  the  time  of  the  assignment 
and  passage  of  the  covenant.     Greenvault  v.  Davis,  4  Hill,  64. 

These  decisions  appear  to  give  covenants  of  this  sort  the  force  of  obliga- 
tions under  seal,  and  the  capacity  for  negotiation,  of  promissory  notes.  Even  a 
formal  technical  release  of  the  covenant  by  the  covenantee  after  assignment, 
and  bi-each,  would  not,  it  was  said  on  the  authority  of  Middlemore  v. 
Goodale,  Croke  Car.  503,  destroy  the  covenant. 

It  has  already  been  stated  that  all  covenants  which  relate  to  the  land, 
and  are  for  its  benefit,  run  with  it,  and  may  be  enforced  by  each  successive 
assignee,  into  whose  hands  it  may  come  by  conveyance  or  assignment.  Thus 
a  covenant  in  a  lease,  to  repair  the  premises  demised  may  be  enforced  by  an 
assignee  of  the  lessee,  against  the  lessor  at  common  law,  and  under  the  stat- 
ute 32  Henry  8,  against  an  assignee  of  the  reversion.  Allen  v.  Culver,  3 
Denio,  284.  In  like  manner  whenever  a  covenant  relates  to  land,  although 
charging  it  with  a  burden,  as  where  it  is  to  erect  additional  chimneys  on  the 
premises;  Harris  v.  Coulbourn,  3  Harrington,  338;  to  surrender  them  in 
good  order  at  the  end  of  the  terra  ;  Allen  v.  Culver ;  or  for  the  punctual 
payment  of  the  rent ;  Van  Rensellaer  v.  Bradley,  3  Denio,  135,  it  may  be 


spencer's     CASE.  '  155 

enforced  as  between  all  successive  parties  who  stand  in  privity  of  estate 
with  regard  to  the  land.     (Supra.) 

In  Norman  v.  Wells,  17  Wendell,  136,  the  question  as  to  what  species 
of  covenants  are  capable  of  running  with  land,  was  fully  considered  by  the 
Supreme  Court  of  New  York.  The  defendant  had  covenanted  that  he  would 
not  erect  any  mill  for  sawing  mahogany,  on  a  stream  running  through  part 
of  his  land,  in  the  deed  by  which  he  granted  another  portion  of  land  as  a 
mill  seat,  for  a  term  of  years  to  the  lessee,  from  whom  the  plaintiff  had  taken 
by  assignment.  The  court  decided,  that  although  the  covenant  was  to  do 
something  off  the  land,  yet  as  it  affected  the  value  of  the  land  demised  in 
the  deed  containing  the  covenant,  it  was  not  so  far  collateral  to  such  land  as 
not  to  run  with  it. 

The  English  case  of  Vyvyan  v.  Arthur,  1  Barn.  &  Ores.  410,  is  the  con- 
verse of  Norman  v.  Wells,  and  therefore  calculated  to  support  the  principle 
there  laid  down.  A  covenant  to  grind  all  the  grain  grown  on  the  demised 
premises,  at  the  mill  of  the  lessor,  was  held  to  be  in  the  nature  of  rent,  and 
beneficial  to  the  reversion,  so  long  'as  the  owner  of  the  reversion  continued 
to  own  the  mill.  It  was  therefore  held  that  the  assignee  of  both,  might  main- 
tain an  action  on  the  covenant,  although  to 'be  performed  off  the  land. 

It  may  be  observed,  that  the  covenant  in  Norman  v.  Wells  contained  the 
word  assigns,  and  that  in  the  preceding  case  of  Thompson  v.  Rose,  8  Cowen, 
266,  the  first  resolution  in  Spencer's  case  was  strictly  applied  by  the  court, 
and  the  word  assigns,  not  being  in  a  covenant  entered  into  by  a  lessor,  to  pay 
the  lessee  for  buildings  to  be  erected  by  him  on  the  land,  the  benefit  of  the 
covenant  was  adjudged  not  to  pass  to  the  assignee  from  the  lessee. 

At  the  same  time,  however,  that  the  court  held  in  this  case,  that  the  cove- 
nant did  not  run  with  the  land  to  the  assignee,  so  as  to  give  him  an  action 
in  his  own  name,  they  determined  that  an  equitable  interest  in  the  covenant 
did  pass ;  and  consequently  that  a  release  given  by  the  original  lessee  to  the 
lessor,  after  notice  of  an  assignment  of  the  term,  would  not  prevent  a  reco- 
very against  him  in  an  action,  brought  by  such  lessee  in  his  own  name,  but 
for  the  benefit  of  the  assignee. 

In  some  of  the  American  cases,  covenants  which  do,  and  those  which  do 
not  run  with  land  are  treated  as  being  essentially  different  in  their  nature, 
the  former  being  designated  as  covenants  real,  and  the  latter  as  covenants 
personal.  Morse  v.  Aldrich,  19  Pick.  449.  Such  a  distinction  might  be 
more  just,  were  it  not  that  the  capacity  of  a  covenant  to  run  with  land,  ^ 
depends  not  only  on  the  nature  of  the  covenant  itself,  but  on  the  cotempora- 
neous  relations  subsisting  between  the  covenantor  and  the  covenantee,  so 
that  a  covenant  which  under  one  set  of  circumstances  will  run  with  an 
estate  in  land,  or  in  a  reversion,  will  be  confined  under  another,  to  the  par- 
ties between  whom  it  is  made.  But  apart  from  this  it  would  seem,  that  at 
the  present  day,  all  covenants  whether  susceptible  or  insusceptible  of  passing 
as  incident  to  the  passage  of  the  realty,  are  essentially  personal.  The  true 
criterion  of  the  legal  nature  of  a  covenant,  is  the  nature  of  the  remedy 
given  by  the  law  when  it  is  broken; and  it  is  settled  both  in  the  United  States 
and  in  England,  that  the  right  of  action  for  the  total  breach  of  a  cove- 
nant running  with  land  is  purely  personal,  sounding  in  damages  and 
surviving  to  executors,  whereas  in  the  case  of  covenants  real  it  descended 


156  '    smith's  leading   cases. 

to  the  heir.  Supra.  The  distinction  between  covenants  which  run  with 
land,  and  those  which  do  not,  is  therefore,  one  of  incident,  rather  than 
of  essence,  and  consists  not  so  much  in  the  nature  of  the  rights  which  they 
confer,  and  the  obligations  which  they  impose,  as  in  their  power  of  being  made 
available,  for  or  against  successive  holders  of  the  estate  to  which  they  relate. 

The  distinction  above  stated,  has  been  applied  in  many  of  the  American  cases 
to  the  covenants  for  title;  and  it  has  been  asserted  that  while  some  of  these  co- 
venants, as  for  instance  those  for  quiet  enjoyment,  and  further  assurance,  are 
covenants  real  and  run  with  the  land,  others,  as  the  covenants  for  seisin  and 
against  incumbrances,  are  covenants  personal,  and  therefore  insusceptible  of 
passing  beyond  the  covenantee.  This  distinction  seems  inadmissible,  as 
implying  an  essential  difference  between  these  and  the  other  covenants  for 
title,  which  does  not  exist.  All  the  covenants  for  title  inserted  in  convey- 
ances, relate  to  the  estate  conveyed  and  are  for  its  benefit.  As  such  they 
come  within  the  definition  of  covenants  running  with  land,  and  are  as  much 
covenants  real  as  any  covenants  can  be,  on  which  the  remedy  sounds  in 
damages,  and  is  purely  personal.  And  although  no  suit  can  accrue  to  an  as- 
signee of  the  land,  on  the  coveoant  of  seisin,  in  many  of  the  States  of  the 
Union,  this  is  because  the  covenant  is  held  to  be  finally  and  totally  broken  (if 
broken  at  all)  as  soon  as  made,  and  thus  converted  into  a  mere  right  of 
action,  which  necessarily  puts  a  stop  to  the  running  of  every  covenant,  and 
not  because  the  covenant  is  peculiarly  and  essentially  personal  in  its  nature. 
This  is  the  more  evident,  because  in  England,  and  in  those  parts  of  this 
country,  where  the  covenant  for  seisin  is  held  not  to  be  completely  and 
finally  broken  until  eviction,  it  runs  with  the  inheritance  which  it  is 
designed  to  protect.  It  is  therefore  plain,  that  the  real  difference  in  the 
view  taken  by  the  courts  is  as  to  the  time  of  the  breach,  and  not  as  to  the 
nature  of  the  covenant,  and  that  if  they  agreed  on  the  former  point,  there 
would  be  no  room  for  dispute  on  the  latter. 

The  case  of  Norman  v.  Wells  may  be  regarded  as  carrying  the  power  of 
covenants  to  run  with  land,  to  the  extremest  limit  allowed  by  law.  Care, 
however,  must  be  taken  on  the  one  hand,  not  to  suppose  that  a  court  of 
equity  will  not  sometimes  go  further,  and,  on  the  other,  not  to  draw  decrees 
on  bills  of  equity  into  precedents  for  actions  at  law.  Thus  in  Holmes  v. 
Buckley,  Equity  Cases  Abridged,  26,  an  assignee  in  fee  was  compelled  by 
equity,  to  fulfil  the  covenants  made  by  his  assignor,  to  keep  open  and  repair 
.*  a  water  course,  granted  by  the  latter  out  of  the  land.  In  Van  Horn  v. 
Crain,  1  Paige,  455,  certain  of  the  tenants  in  common  of  a  tract  of  land,  had 
leased  the  whole  for  life,  with  a  covenant  to  convey  the  reversion,  and  also  a 
certain  other  tract,  on  the  payment  of  a  fixed  sum.  They  afterwards  became 
possessed  of  the  entirety,  and  of  the  other  tract,  which  they  had  not  at  the 
time  of  lease  made,  and  a  specific  performance  was  decreed,  in  a  suit  by  an 
assignee  of  part  of  the  lease,  against  a  subsequent  assignee  of  the  other 
tract  and  the  reversion.  Now  most  certainly  the  covenant  to  convey 
the  other  tract,  was  not  on6  which  could  have  run  with  the  land  to  the 
assignee  of  the  lessee,  and  still  less  could  its  burden  have  passed  to  the 
assignee  of  the  reversion.  But  there  is  as  little  doubt,  that  on  the  acquisition 
of  the  second  tract  by  the  covenantors,  their  previous  covenant  to  convey  it, 
created  an  equitable  interest  in  the  covenantee,  which  entitled  him  to  a 


spencer's    case.  157 

decree  for  the  conveyance  of  the  legal  estate,  as  against  purchasers   with 
notice  ;  Miller  v.  Abney,  1  Ch.  Ca.  38. 

At  law,  when  a  covenant  is  capable  of  running  with  land,  its  burden  will,  of 
course,  pass  to  the  assignee  of  the  legal  estate,  although  merely  a  trustee,  but 
equity  in  this,  as  in  other  cases,  considers  him  as  a  mere  instrument,  and 
holds  the  cestui  que  trust  as  the  party  really  answerable.  On  this  principle, 
the  courts  of  Pennsylvania,  which  enforce  equitable  rights  and  liabilities 
through  the  medium  of  legal  forms,  hold  that  where  a  conveyance  is  made 
in  trust,  both  the  cestui  que  trust  and  trustee  are  liable  on  the  covenants 
running  with  the  land.  This  doctrine  was  applied  in  the  case  of  Berry  v. 
M'Mullen,  17  Sergeant  &  Rawle,  84,  although  the  party  charged  as  as- 
signee, was  a  stranger  to  the  deed  of  assignment,  as  far  as  was  shown  by 
its  face,  and  his  equitable  interest  was  merely  a  question  of  fact  for  the 
jury. 

Under  the  provisions  of  the  statute  de  bigamis,  4  Edward  1,  c.  6,  which 
seem  to  have  been  merely  declaratory  of  the  common  law,  the  word  give  in 
a  deed  implies  a  warranty,  which  in  the  absence  of  tenure  terminates  with, 
the  life  of  the  grantor,  but  extends  to  his  heirs  when  a  tenure  is  created ;  2 
Inst.  274,  275 ;  Coke,  Lit.  384,  a ;  384,  b.  There  have  been  several  decisions 
in  this  country  in  which  this  rule  of  law  has  been  treated  as  still  in  force. 
Frost  V.  Kaymond,  2  Caines,  188 ;  Kent  v.  Welsh,  7  Johnson,  259  ;  Gratz 
V.  Ewalt,  2  Binney,  95;  Crouch  v.  Fowle,  9  New  Hampshire,  219.  And 
it  would  therefore  appear,  that  where  a  conveyance  is  not  within  the  opera- 
tion of  the  statute  of  Quia  Emptores,  or  where  that  statute  is  not  in  force,  the 
use  of  the  word  give  will  import  a  warranty  at  the  present  day,  as  it  did  at 
common  law,  ("supra).  The  point  is  however  of  little  practical  importance, 
for  the  word  give  is  seldom  used  in  modern  deeds,  and  the  cases  above  cited 
together  with  many  others  which  might  be  referred  to,  all  decide  that,  inde- 
pently  of  recent  statutory  enactments  which  exist  in  several  of  the  states, 
the  words  grant,  bargain,  and  sell,  commonly  resorted  to  in  conveyances  in 
this  country,  imply  no  warranty  or  covenant  for  title  whatever. 

In  taking  leave  of  the  subject,  it  may  be  found  advantageous  briefly  to 
enumerate  the  various  rules  of  law  which  regulate  the  capacity  of  covenants 
to  run  with  land. 

The  general  legal  principle,  which  lies  at  the  foundation  of  the  whole 
doctrine  we  have  been  examining,  is,  that  choses  in  action  are  not  assignable. 
A  covenant  under  seal  is  of  course  as  much  within  the  operation  of  this  prin- 
ciple as  any  other  species  of  contract. 

As  an  exception  to  this  principle,  the  common  law  permits  the  transfer  of 
covenants,  not  by  the  direct  operation  of  an  assignment,  but  as  incident  to 
land  when  passed  by  assignment ;  provided  they  are,  in  their  nature,  capable 
of  running  with  land. 

This  capacity  for  running  with  land,  only  exists  when  the  covenant  is  about 
or  affecting  the  land.  But  it  may  be  held  to  be  a  covenant  affecting  the 
land,  although  not  directly  to  be  performed  upon  it,  provided  it  tend  to  in- 
crease or  diminish  its  value  in  the  hands  of  the  holder. 

But  although  the  covenant,  agreeably  to  the  last  rule,  be  one  capable  of 
running  with  land,  yet  independently  of  tenure  and  of  privity  of  estate, 
or  at  all  events,  of  such  a  relation  between  the  parties  as  would,  agreeably 
to  the  feudal  law,  have  created  tenure  and  privity  of  estate,  it  will  only 


158  smith's   leading    cases. 

run  with  the  land  when  and  as  for  the  benefit  of  the  hind.  For,  the  pur- 
pose of  imposing  a  charge  or  burden  upon  the  land,  it  shall  never  run. 

It  follows  that  covenants  made  about  or  relating  to  laud  which  docs  not 
pass  at  the  time  of  covenant  made,  by  some  conveyance  between  the  parties, 
although  capable  in  their  nature  of  running  with  land,  cannot  enure  as 
covenants  to  impose  any  burden,  charge  or  obligation  on  a  third  person  tak- 
ing such  estate  by  a  subsequent  assignment.  And  that  even  when  the 
land  is  conveyed  in  fee  at  the  time  of  making  the  covenant,  it  cannot,  where 
the  principles  of  the  statute  of  Quia  Emptores  are  in  force,  run  with  the  land 
on  a  subsequent  conveyance,  as  to  its  charge  or  burden.  Under  that  statute 
a  conveyance  in  fee,  creates  no  tenure  or  privity  of  estate,  and  consequently 
only  the  benefit  of  covenants  can  be  attached  to  the  estate. 

But  where  this  statute,  or  the  doctrines  arising  under  it,  are  not  in  force, 
as  in  Pennsylvania,  conveyances  in  fee  create  a  privity  of  estate,  and  all  coven- 
ants capable  of  running  with  land,  therefore,  pass  both  as  to  their  benefit  and 
burden,  to  every  subsequent  assignee  of  the  land  conveyed. 

And  as  the  statute  in  question  only  applies  to  conveyances  of  the  whole  fee, 
the  common  law  doctrine  still  applies  to  all  conveyances  of  smaller  estates, 
and  consequently  the  benefit  and  burden  of  covenants  will  every  where  pass 
to  all  subsequent  assignees  of  such  estates. 

As  a  covenant  is  not  by  itself  capable  of  assignment  at  common  law,  and 
only  passes  as  an  incident  to  the  land  conveyed  by  an  assignment,  it  follows 
that  where  the  assignor  has  no  estate  in  the  land  to  which  the  covenants 
relate  at  the  time  of  the  assignment,  no  right  of  action  on  them  will  pass  to 
the  assignee.  This  doctrine  of  course  applies  to  covenants  for  title  and 
warranties.  And  under  these  circumstances  the  action  must  be  brought  by 
the  executor  and  not  by  the  heir,  even  when  the  injury  falls  exclusively  on 
the  latter. 

The  estate  in  land  requisite  aj;  common  law  to  carry  with  it  an  express 
covenant,  was  an  estate  in  actual  possession.  Hence  such  covenants  could 
not  run  to  the  assignee  of  reversions.  By  force  of  the  statute  32  Henry  8, 
the  privity  of  contract  in  such  covenants,  has  been  transferred  to  the  assignees 
of  reversions  after  estates  for  life  or  years,  provided  the  covenant  be  in  its 
nature  capable  of  running  with  land  at  common  law.  Reversions  after 
conveyances  in  fee  did  not  exist  in  England  at  the  time  of  the  statute  ;  and 
reversions  after  estates  tail  are  not  within  the  limits  of  its  operation.  It 
follows  that  the  assignees  of  parties  who  have  made  conveyances  in  fee  or 
in  tail  remain  as  at  common  law,  and  have  neither  the  benefit  nor  the  bur- 
den of  the  covenants  made  with  their  assignors. 

It  has  been  observed,  that  at  common  law,  the  burden  of  covenants  never 
ran  with  land,  save  where  there  was  a  privity  of  estate  between  the  cove- 
nantee and  the  covenantor ;  or  in  other  words,  where  there  was  a  conveyance 
from  one  to  the  other,  while  their  benefit  might  in  all  cases  run  without  such 
privity  or  conveyance.  Although  this  distinction  may  at  first  sight  appear 
arbitrary,  yet  on  a  closer  examination,  it  will  be  found  to  be  the  best  of 
which  the  subject  admits.  "When  a  party  who  hai  no  estate  in  the  premises, 
enters  into  a  covenant,  having  for  its  object  the  benefit  of  land  in  the  hands 
of  another,  it  must  be  a  matter  of  indifference  to  him  in  whose  favour  he  is 
obliged  to  fulfil  the  obligation  which  he  has  assumed.  He  cannot,  therefore, 
complain  that  the  benefit  of  the  covenant  should  pass  to  a  subsequent  assignee 


spencer's  case.  159 

of  the  land,  and  carry  with  it  a  consequent  right  of  suit.  The  right  of  action 
is  in  that  case  transferred,  and  not  the  obligation  under  the  covenant.  On  the 
other  hand,  if  the  assignment  were  allowed  to  operate  on  a  covenantor,  and 
place  the  assignee  of  the  land  under  him,  in  the  same  position  which  he  him- 
self held,  then  the  burden  of  the  covenant  would,  without  any  reason,  be 
imposed  upon  a  party  who  might  never  before  have  heard  of  its  existence, 
and  who  might  well  complain  of  being  exposed  to  the  obligation  of  a  contract, 
independently  both  of  consent  and  consideration.  Such  is  the  case  where 
the  covenantor  takes  nothing  in  the  land  at  the  time  of  covenant  made;  but 
where  there  is  an  accompanying  conveyance  to  him,  it  is  altogether  changed. 
The  performance  of  the  covenant  may  be  presumed  to  be  in  part  considera- 
tion for  the  conveyance,  without  which  it  would  not  have  been  made ;  and 
therefore  the  assignee  is  fairly  liable  to  an  obligation,  which  partakes  in  some 
degree  of  the  nature  of  a  reddendum  for  his  tenure.  Such  at  least  seems  to 
have  been  the  rule  of  law  prior  to  the  statute  of  quia  emptores.  When, 
however,  that  statute  destroyed  the  relations  of  tenure,  on  conveyances  in 
fee,  the  rights  of  grantors  of  land  underwent  a  very  material  alteration.  It 
became  the  policy  of  the  law  to  discourage  all  connexions  between  the  gran- 
tor of  land  and  the  grantee,  which  could  not  in  any  way  impair  or  restrain 
the  estate  granted  to  the  latter.  And  it  was  consequently  held,  that  the 
covenants  of  the  grantee  were  merely  personal,  and  did  not  bind  the  land  in 
the  hands  of  a  subsequent  assignee.  But  as  the  reasons  for  this  policy  have 
ceased,  it  would  seem  entirely  reasonable  to  determine  the  question,  whether 
the  burden  of  a  covenant  shall  run  with  land  by  the  old  test,  of  whether  it 
has  been  accompanied  by  a  conveyance.  If  it  has,  it  would  seem  only  fair 
that  the  assignee  should  continue  to  perform  that  which  must  be  regarded  as 
having  been  part  of  the  price  of  his  land,  and  without  which  it  would  not 
have  been  transmitted  from  the  covenantee,  through  his  assignor,  to  himself. 
The  land  which  he  holds  is  the  consideration  which  he  has  received  for  the 
contract.  Where,  however,  the  land  sought  to  be  charged  with  the  cov- 
enant was  not  derived  from  the  covenantee,  the  consideration  of  the  cove- 
nant is  necessarily  foreign  to  the  land,  and  the  title  held  by  the  covenantor, 
and  transmitted  by  him  to  any  subsequent  assignee,  is  entirely  independent 
of  the  stipulations  of  the  covenant.  And  as  these  and  all  the  other  relations, 
which  are  indicated  by  the  old  phrase  of  privity  of  estate,  are  absent,  there  is, 
in  the  necessary  absence  of  privity  of  contract,  no  reason  why  the  assignee 
should  be  bound  by  the  covenant. 

In  restraining  the  power  of  imposing  a  burden  upon  land,  by  means  of  a 
covenant,  to  those  cases  in  which  an  estate  is  transferred  from  the  person 
by  whom  it  is  imposed,  and  in  permitting  it  where  such  transfer  occurs, 
although  of  a  fee,  the  common  law  follows  the  same  policy  in  the  case  of 
covenants  as  in  the  case  of  conditions,  which  can  never  be  attached  to  an 
estate,  save  where  it  passes  at  the  time  of  condition  reserved,  and  from  the 
person  by  whom  it  is  called  into  being.  Where  such  a  conveyance  is 
made,  no  future  party  has  a  right  to  complain  of  any  burden  attendant 
upon  it,  whether  of  covenant  or  condition  ;  since,  independently  of  the 
conveyance,  neither  estate  nor  burden  could  have  reached  him.  Any 
objection,  which  under  these  circumstances  can  apply  to  the  fetters  imposed 
by  covenants  on  subsequent  assignees,  must  apply  with  greater  force  to  con- 
ditions, which  take  a  wider  range,  and  need  not  even  be  performed  on  the 


160  smith's   leading  cases. 

land.  The  limits,  therefore,  which  the  policy  of  the  law  has  set  to  the  ope- 
ration of  conditious,  cannot  be  regarded  as  too  extensive  for  that  of  cove- 
nants. 

H. 


[*39] 


*SEMAYNE'S    CASE. 


MICH.  2  JAC.  1.— IN  THE  KING'S  BENCH. 
[reported,  5  COKE,  91.] 

Sheriff  when  entitled  to  break  doors — Application  of  Maxim  "Every  Man's  House 

is  his  Castle." 

In  an  action  on  the  case  by  Peter  Semayne,  plaintiff,(a)  and  Richard 
Gresham,  defendant,  the  case  was  such  ;  the  defendant  and  one  Gerge  Beris- 
ford  were  joint-tenants  of  a  house  in  Blackfriars  in  London,  for  years,  George 
Berisford  acknowledged  a  recognizance  in  the  nature  of  a  statute-staple-j-  to 
the  plaintiiF,  and  being  possessed  of  divers  goods  in  the  said  house  died,  by 
which  the  defendant  was  possessed  of  the  house  by  survivorship  in  which 
the  goods  continued  and  remained ;  the  plaintiif  sued  process  of  extent  on 
the  statute  to  the  sheriffs  of  London ;  the  sheriffs  returned  the  conusor  dead, 
on  which  the  plaintiff  had  another  writ  to  extend  all  the  lands  which  he  had 
at  the  time  of  the  statute  acknowledged,  or  at  any  time  after,  and  all  his 
goods  which  he  had  at  the  day  of  his  death ;  which  writ  the  plaintiff  deli- 
vered to  the  sheriffs  of  London,  and  told  them  that  divers  goods,  which  were 
the  said  George  Berisford's,  at  the  time  of  his  death  were  in  the  said  house  : 
and  thereupon  the  sheriffs,  by  virtue  of  the  said  writ,  charged  a  jury  to  make 
inquiry  according  to  the  said  writ,  and  the  sheriffs  and  jury  accesserunt  ad 
domum  prsedictam  ostio  do7nus  praedict'  ojjerto  existen^  et  hotiis  prsedictis  in 
prsedicta  domo  tunc  existen! ,  and  they  offered  to  enter  the  said  house,  to 
extend  the  goods  according  to  the  said  writ :  and  the  defendant  prseynisso- 
rum  non  i<jnarus,  intending  to  disturb  the  execution,  ostio  praed'  domus 
tunc  operto  existen'',  claudehat  contra  viscom'  et  jurator' ,  praed' ;  whereby 

^.r.  -,  they  could  not  come,  and  extend  the  said  goods,  nor  the  sheriff  seize 
L  -^  them,  by  which  he  lost  the  ^benefit  and  profit  of  his  writ,  &c.  And 
in  this  case  these  points  were  resolved  ; — 

(a)  Co.  Ent.  12,  pi.  11.  Mo.  668.  Yelv.  28,  29.  Cr.  El,  908,  209.  2  Roll.  Rep.  294. 
See  the  report  of  tins  case  in  Sir  F.  Moore,  668,  where  it  appears  that  there  was  a  divi- 
sion of  opinion  among  the  Judges  ;  and  the  same  appears  in  Crokc,  908,  and  that  one  of 
the  dissentient  judcres  withdrew  his  opinion. 

Whether  a  bailiff,  ifec.  may  break  a  house  to  do  execution  or  not.  See  6  Mod.  105,  &,c. 
Ibid.  ■  [See  Hob.  263,  wiiere  the  parties  were  punished  for  executing  the  process  of  law  in 
a  riotous  manner.] 

t  See  an  account  of  tliis  sort  of  recognizance,  and  the  mode  of  proceeding  thereon,  2 
Wms.  Saund.  70,  in  notis. 


semayne's  case.  161 

1.  That  the  Jiouse  of  evert/  one  is  to  him  as  his(b'\  castle  and  fortress,  as 
well  for  his  defence  against  injury  and  violence,  as  for  his  repose  ;  and  al- 
though the  life  of  man  is  a  thing  precious  and  favoured  in  law ;  so  that 
although  a  man  kills  another  in  his  defence,  or  kills(''")  one  per  infortun' , 
without  any  intent,  yet  it  is  felony,  and  in  such  case  he  shall  forfeit  his 
goods  and  chattels,  for  the  great  regard  which  the  law  has  to  a  man's  life ; 
but  if  thieves  come  to  a  man's((7)  house  to  rob  him,  or  murder,  and  the  owner 
or  his  servants  kill  any  of  the  thieves  in  defence  of  himself  and  his  house,  it 
is  not  felony,  and  he  shall  lose  nothing,  and  therewith  agree  3  E.  3  ;  Coron. 
303  and  305 ;  and  26  Ass.  pi.  23.  So  it  is  held  in  21  H.  7,  39 ;  every  one 
may  assemble  his  friends  and  nei(jhl)Ours{e)  to  defend  his  house  against  vio- 
lence:  but  he  cannot  assemble  them  to  go  with  him  to  the  market(/)  or 
elsewhere,  for  his  safeguard  against  violence  :  and  the  reason  of  all  this  is, 
because  domus  sua  cuique  est  tutissimum  refugium. 

2.  It  was  resolved,  when  any  house  is  recovered  by  any  real  action,  or  by 
ejecf  firmse,  the  sheriff  may  break  the  house  and  deliver  the  seisin  or  piosses- 
sion  to  the  demandant  or  plaintiff,  for  the  words  of  the  writ  are,  habere 
facias  scisinam,  or  j^ossessionem,  &c.,  and  after  judgment  it  is  not  the  house, 
in  right,  and  judgment  of  law,  of  the  tenant  or  defendant. 

3.  In  all  cases  lohen  the  King(g\  is  party,  the  sheriff  [if  the  doors  be  not 
open'j  may  break  the  party^s  house,  either  to  arrest  him,  or  to  do  other  execu- 
tion of  the  king' s  process,  if  otherwise  he  cannot  enter.  But  before  he,  breaks 
it,  he  ought  to  signify  the  cause  of  his  coming,  and  to  make  request  to 
open  the  doors;  and  that  appears  well  by  the  statute  of  Westminster, 
1  c.  17,  (which  is  but  an  affirmance  of  the  common  law)  as  hereafter 
appears,  for  the  law,  without  a  default  in  the  owner,  abhors  the  destruc- 
tion or  breaking  of  any  house  (which  is  for  the  habitation  and  safety  of 
man)  by  which  great  damage  and  inconvenience  might  ensue  to  the  party, 
when  no  default  is  in  him ;  for  perhaps  he  did  not  know  of  the  process,  of 
which  if  he  had  notice,  it  is  to  be  presumed  that  he  would  obey  it ;  and 
that  appears  by  the  book  in  18  E.,  1(li),  Execut.  252,  where  it  is  said 
that  the  king's  officer  who  comes  to  do  execution,  &c.,  may  open  ^  ^ ,-.  .. 
the  doors  which  *are  shut,  and  break  them  if  he  caimot  have  the  L  •  J 
keys;  which  proves  that  he  ought  first  to  demand  them.  7  E.  3,(?') 
16.  J.  beats  R.  so  as  he  is  in  danger  of  death,  J.  flies  and  thereupon  hue 
and  cry  is  made,  J.  retreats  into  the  house  of  T.,  they  who  pursue  him,  if 
the  house  be  kept  and  defended  to ith  force  {vi\i\c\x  proves  that  first  request 
ought  to  be  made),  may  lawfully  break  the  house  of  T.,  for  it  is  at  the 
king's  suit.  27  Ass.  p.  66.  The  king's  bailiff  may  distrain  for  issues(A;) 
in  a  sanctuary.  27  (28)  Ass.  p.  35.  By  force  of  a  capias  on  an  indict- 
ed;) 3  Inst.  162.     Cr.  El.  753.     2  Co.  33,  a.     7  Co,   6,  a.     8  Co.  126,  a,     11  Co.  82,  a. 

1  15ulst.  146.    Stanf.  Cor.  14,  b. 

ic)  Co.  Lit.  3!)1,  a.     Hale's  pi.  Cor.  32.     Stanf.  Cor.  15,  c.  16,  d. 

{(I)  3  Inst.  56.  Stanf.  Cor.  14,  a.  Cor.  192.  3  E.  3.  Cor.  205,  330.  Br.  Cor.  100. 
1  Roll.  Rep.  182.    22  H.  8,  c.  5. 

{€)  11  Co.  82,  b.    Br.  Riots,&c.  1.     21  H.  7,  39,  a.     Fitz.  Tresp.  246.  2  Inst.  161,  1C2. 

(/)   11  Co.  82,  b.     1  Roll.  Rep.  182. 

(g-)  Benl.  112.  1  Bulstr.  146.  Cr.  El.  908,  909.  Moor  606,  668.  Yelv.  28,  29.  Cr. 
Car.  537,  538.  3  Inst.  161,  Dy.  36,  pi.  40.  12  Co.  131.  4  Inst.  177.  Goidsb.  79.  2 
Jones,  233,  234.     4  Leon.  41.     i3E,  4,  9.a. 

(A)  Yelv.  29.     5  Co.  92,  b.     Cr.  El.  909.     Moor,  668. 

(!)  4  Inst.  177.  {k)  Br,  Distress,  35.     Br.  Trespass,  151. 

Vol.  I.— 11 


162  smith's   leading    cases. 

ment  of  trespass  the  sheriff  ma.y(I)  break  his  house  to  arrest  him  ;  but  in 
such  case,  if  he  breaks  the  house  when  he  may  enter  without  breaking  it, 
(that  is,  on  request  made,  or  if  he  may  open  the  door  without  breaking,) 
he  is  a  trespasser.  41  Ass.  15.  On  issue  joined  on  a  traverse  of  an  office 
in  Chancery,  Venire  facias,  was  awarded  returnable  in  the  King's  Bench, 
without  mentioning  non{i)i^omiltas propt^  aliquam  Ubcrtat'  :  yet  forasmuch 
as  the  king  is  party,  the  writ  of  itself  is  non  omitlas  proj)t^  aliquam  Uler tat.' 
9  E.  4,  9  ;  that  for  felony(«)  or  suspicion  of  felony,  the  king's  officer 
may  break  the  house  to  apprehend  the  felon,  and  that  for  two  reasons  :  1 
for  the  commonwealth,  for  it  is  for  the  commonwealth  to  apprehend  felons. 

2.  In  every  felony  the  king  has  interest,  and  where  the  king  has  interest, 
the  writ- is,  non  omittas  propter  aliquam  libertatem  ;  and  so  the  liberty  or 
privilege  of  an  house  doth  not  hold  against  the  king. 

4.  In  all  cases  when  the  door  is(^o'^  ojjen  the  sheriff  may  enter  the  house, 
and  do  execution,  at  the  suit  of  any  subject,  either  of  the  body  or  of  the 
goods  ;  and  so  may  the  lord  in  such  case  enter  the  house[p^  and  distrain 
for  his  rent  or  service.     38   Hen.  6,  26,  a.  8  E.  2  Distr.  21,  &  33  E. 

3,  Avow.  256;  the  lord  may  distrain  in  the  house,  although  lands  are  also 
held  in  which  he  may  distrain.  Vide  29((/)  Ass.  49.  But  the  great  ques- 
tion in  this  case  ^cas,  if  by  force  of  a  Capias  or  Fieri  facias  at  the  suit  of 
the  jxi7-ty  the  sheriff,  after  request  made  to  op>en  the  door,  and  denial  made, 
might  break  the  defendant' s  house  to  do  exeection  if  the  door  be  not  opened. 
And  it  was  objected,  that  the  sheriff  might  well  do  it  for  divers  causes. (r)  1. 
Because  it  is  by  process  of  law ;  and  it  was  said,  that  it  would  be  granted 
on  the  other  side,  that  a  house  is  not  a  liberty ;  for  if  a  Fiexi  facias  or  a 
Capias  be  awarded  to  the  sheriff  at  the  suit  of  a  common  person,  and  he 

.  ,f.  ^  makes  a  *mandate  to  the  bailiff  of  a  liberty  who  has  return  of 
L  J  writs,  who  mdlum  dedit  resjmns,  in  that  case  another  writ  shall 
issue  with  non  omittas  proj)ter  aliquam  libertatem ;  yet  it  will  be  said  on 
the  other  side  that  he  shall  not  break  the  defendant's  house,  as  he  shall  do 
of  another  liberty ;  for  whereas  in  the  county  of  Suffolk  there  are  two 
liberties,  one  of  St.  Edmund  Bury  and  the  other  of  St.  Ethelred  of  Ely, 
suppose  a  Capias  comes  at  the  suit  of  A.  to  the  sheriff  of  Suffolk  to  arrest 
the  body  of  B.,  the  sheriff  makes  a  mandate  to  the  bailiff  of  the  liberty 
of  St.  Ethelred,  who  makes  no  answer,  in  that  case  the  plaintiff  shall  have 
a  writ  of  non  omittas,  and  by  force  thereof  he  may  arrest  the  defendant 
within  the  liberty  of  Bury,  although  no  default  was  in  him.  2.  Admit- 
ting it  be  a  liberty,  the  defendant  himelf  shall  never  take  advantage  of  a 
liberty :  as  if  the  bailiff  of  a  liberty  be  defendant  in  an  action,  and  pro- 
cess or  Capias  or  Fieri  facias  come  to  the  sheriff  against  him,  the  sheriff 
shall  execute  the  process  against  him  ;  for  a  liberty  is  always  for  the  benefit 
of  a  stranger  to  the  action.  3.  For  necessity  the  sheriff  shall  break  the  defend- 
ant's house  after  such  denial  as  is  aforesaid,  for  at  the  common  law  a  man 
should  not  have  any  execution  for  debt,  but  only  of  a  defendant's  goods. 

(l)  Fitz.  Trespass,  232.     Br.  Trespass,  248. 

(m)  Br.  Prerogative  le  Roy,  109.  Br.  Francisc,  18.  Br.  Process,  102.  Fitz.  Preroga- 
tive, 21. 

(a)  13  E.  4,  9,  a.     Fitz.  Bar.  100,     4  Inst.  177.     1  Biilstr.  146.     2  Bulstr.Gl. 
(o)  1  Brown,  50.     Cr.  Jac.  481.  (p)  Br.  Trespass,  220.     Br.  Issue,  26. 

(?)  Br.  Disseisor,  52,     Fitz.  Assize,  286.  (r)  Lucas,  290.     Cro.  Jac.  555. 


semayne's    case.  163 

Suppose  then  the  defendant  would  keep  all  his  goods  in  his  house,  the 
defendant  himself,  bj  his  own  act,  would  prevent  not  only  the  plaintiff  of 
his  just  and  true  debt,  but  there  would  also  be  a  great  imputation  to  the 
law,  that  there  should  be  so  great  a  defect  in  it,  that  in  such  case  the  plain- 
tiff by  such  shift  without  any  default  in  him  should  be  barred  of  his  execu- 
tion. And  the  book  of  18  E.  2.(^s)  Execut.  252,  was  cited  to  prove  it,  where 
it  is  said,  that  it  is  not  lawful  for  any  one  to  disturb  the  king's  oflScer  who 
comes  to  execute  the  king's  process  ;  for  if  a  man  might  stand  out  in  such  a 
manner,  a  man  would  never  have  execution,  but  there  it  appears  (as  has  been 
said)  that  there  ought  to  be  request  made  before  the  sheriff  breaks  the  house. 
4.  It  was  said,  that  the  sheriffs  were  officers  of  great  authority,  in  whom  the 
law  reposed  great  trust  and  confidence,  and  are  to  be  of  sufficiency  to  answer 
for  all  wrongs  which  should  be  done ;  and  they  had  custodiam  comitatum, 
and  therefore  it  should  not  be  presumed  that  they  would  abuse  the  house  of 
any  one,  by  colour  of  doing  their  office  in  execution  of  the  king's  writs, 
*against  the  duty  of  their  office,  and  their  oath  also.  But  it  loas  ^ ,  „  -. 
resolved,  that  it  is  not  laxoful  for  the  sheriff  (on  request  made  and  •-  -' 
deniah  at  the  suit  of  a(t\  common  person,  to  break  the  defendarU' s  house, 
so.  to  execute  any  process  at  the  suit  of  any  subject ;  for  thence  would 
follow  great  inconvenience,  that  men  as  well  as  in  the  night(M)  as  in  the 
day  should  have  their  houses  (which  are  their  castles)  broke,  by  colour 
whereof  great  damage  and  mischief  might  ensue ;  for  by  colour  thereof,  on 
any  feigned  suit,  the  house  of  any  man,  at  any  time,  might  be  broke  when 
the  defendant  might  be  arrested  elsewhere,  and  so  men  would  not  be  in 
safety  or  quiet  in  their  own  houses.  And  although  the  sheriff  be  an  officer 
of  great  authority  and  trust,  yet  it  appears,  by  experience,  that  the  king's 
writs  are  served  by  bailiffs,  persons  of  little  or  no  value :  and  it  is  not  to  be 
presumed  that  all  the  substance  a  man  has  is  in  his  house,  nor  that  a  man 
would  lose  his  liberty,  which  is  so  inestimable,  if  he  has  sufficient  to  satisfy 
his  debt.  And  all  the  said  books,  which  prove  that  when  the  process  con- 
cerns the  king,  the  sheriff  may  break  the  house,  imply  that  at  the  suit  of 
the  party  the  house  may  not  be  broken  :  otherwise  the  addition  (at  the  suit 
of  the  king)  would  be  frivolous.  And  with  this  resolution  agrees  the  book 
in(i>)  13  'E.  4,  9,  and  the  express  difference  there  taken  between  the  case 
of  felony,  which  (as  has  been  said)  concerns  the  commonwealth,  and  the 
suit  of  any  subject,  which  is  for  the  particular  interest  of  the  party,  as  there 
it  is  said.  ln{w^  18  E.  4,  4,  a,  by  Littleton  and  all  his  companions  it  is 
resolved,  that  the  sheriff  cannot  break  the  defendant's  house  by  force  of  a 
Fieri  facias,  but  he  is  a  trespasser  by  the  breaking,  and  yet  the  execution 
which  he  then  doth  in  the  house  is  good.  And  it  was  said,  that  the  said 
book   of(x)  18  E.  2,  was  but   a  short  note,  and   not  any  case  judically 

(s)  Yclv.  29.  5  Co.  91,  b.  Moor,  663.  Cr.  El.  409.  O.  Benl.  121.  See  18  E.  4,  4, 
contra. 

(0  IJones,  429,  430.  1  Brownl.  50.  IfDulslr.  146.  Cr.  Jac,  556.  O.  Benl.  121.  4 
Inst.  177.  Palm.  53.  Dyer,  36,  pi. 41.  Moor,  668.  Cr.  Car.  537,  538.  Cr.  El.  908,  902. 
Yelv.  29.  Hob.  62,  263,  264.  4  Leon.  41.  11  Co.  82.  March.  34.  18  E.  4,  4,  a.  Br. 
Execu.  100.     Br.  Trespass,  390. 

(«)  9  Co.  66,  a.     Cr.  Jac.  80,  486.     Jenk.  Cent,  291.     Hale's  pi.  Cor.  45.     Owen,  63. 

(r)  13  E.  4,  9,  a.     5  Co.  92,  a.     Fitz.  Bar.  110.     4  Inst.  177. 

iw)  Cro.  Eliz.  909.     Yelv.  29.     Br.  E.xecution,  100.     Br.  Tresp.  309. 

(a)18E.  2.  Execut.  252.  Yelv.  29.  Moor,  668.  Cr,  El.  909.  5  Co.  91,  b.  92,  b. 
Benl.  121. 


164  smith's    leading    cases. 

adjud"'ed  and  it  doth  not  appear  at  -whose  suit  the  case  is  intended,  but  it 
is  an  observation  or  collection  (as  it  seems)  of  the  reporter.  And  if  it  be 
intended  of  a  Quo(y)  minus,  or  other  action  in  which  the  king  is  party,  or 
is  to  have  benefit,  the  book  is  good  law. 

5.  It  icas  resolved,  (hat  the  house  of  any  one  is  not  a  castle  or  j^rivilege 
hut  for  himself,  and  shall  not  extend  to  2>rotect  anij[z)  persoji  it7ioy?tes  to 
his  house,  or  the  goods  of  any  other  which  are  brought  and  conveyed  into 

his  house,  to  prevent  a  lawful  ^execution ,  and  to  escaj^e  the  ordi- 
L  .  -•  nary  process  of  law;  for  the  privilege  of  his  house  extends  only  to 
him  and  ?iis  family,  and  his  own  jjroper  goods,  or  to  those  which  are 
lau-fully  and  icithout  fraud  and  covin  there;  and  therefore  in  such  cases 
after  denial  on  request  made,  the  sheriff  may  hrrah  the  Jiotise;  and  that  is 
proved  by  the  statute  of  West.  1,  c.(a)  17,  by  which  it  is  declared,  that  the 
sheriflF  may  break  an  house  or  castle  to  make  replevin,  when  the  goods  of 
anotlier  which  he  has  distrained  are  by  him,  i.  e.  conveyed  to  his  house  or 
castle,  to  prevent  the  owner  to  have  a  replevin  of  his  goods  ;  which  act  is 
but  an  afl&rmance  of  the  common  law  in  such  points.  But  it  appears  there, 
that,  before  the  sheriff  in  such  case  breaks  the  house,  he  ought  to  demand 
the  goods  to  be  delivered  to  him  :  for  the  words  of  the  statute  are,  "  after 
that  the  cattle  shall  be  solemnly  demanded  by  the  sheriffs,"  &c. 

6.  It  was  resolved,  admitting  that  the  sheriff  after  denial  made  might 
have  broke  the  house,  as  the  plaintiff's  counsel  pretend  he  might,  then  it 
follows  that  he  has  not  done  his(/^)  duty,  for  it  doth  not  appear,  that  he 
made  any  request  to  open  the  door  of  the  house.  Also  the  defendant,  as 
this  case  is,  has  done  that  which  he  might  well  do  by  the  law,  scil.  to  shut 
the  door  of  his  own  house. 

Lastly,  the  general  allegation,  (c)  premissorum  non  ignarus,  was  not  suf- 
ficient in  this  case,  where  the  notice  of  the  premises  is  so  material;  but  in 
this  case  it  ought  to  have  been  certainly,  and  directly,  alleged ;  for,  without 
notice  of  the  process  of  law,  and  of  the  coming  of  the  sheriff  with  the  jury 
to  execute  it,  the  shutting  of  the  door  of  his  own  house  was  lawful.  And 
judgment  was  given  against  the  plaintiff. 


Although  the  sheriff,  as  appears  from  P.  229,  explained  in  Hutchinson  v.  Birch, 

this   case,    may   justify   (after    request  4  Taunt.  627;  Com.  Dig.  Execution,  C. 

made)  the  breaking  open  the  doors  of  a  5.     See  White  v.  VVilsliire,  Palm.  52; 

third  person's  house  in  order  to  execute  2  Rolle,  138;  Biscop  v.  White,  Cro.  Eiiz. 

the  process  of  the  law  upTju  the  defen-  759;  and  judgment  in  Cooke  v.  Birt,  5 

dant, or  his  property,  removed  thither  in  Taunt.  769.     {See, also,  Burton  et  al.  v. 

order  to  avoid  an  execution,  still  he  does  Wilkinson  et  al.,  18  Vermont,  186,  189. } 

so  at  his  peril ;  for  if  it  turnout  that  the  But  his  right  to  enter  the  defendant's 

defendant  was  not  in  the  house,  or  had  own  house  does  not  depend  on  any  such 

no  property  there,  he   is  a   trespasser,  contingency,  for  that  is  the  most. natural 

Johnson    v.    Leigh,    1    Marsh,   56.5,  6  place  for  the  defendant  or  his  goods  to 

Taunt.;   {  Morrish  v.  Murrey,  13  M.  &  be.     jKneasv.  Fitler  and  others,  2  S.  & 

W.  52,  .57;}  Ratclitfe  v.  Burton,  3  B.  &,  11.  26.3.}      And  on  the  same  principle, 

(«)  Plowd.  208,  a.     2  Show.  87.  (z)  Or.  Car.  544. 

(a)  2  Ifist.  192,  193,  194.  {b)  Stile,  447. 

(c)  Hard.  2.     1  Mod.  Rep.  286.     See  Ilollingsworth  v.  Broderick,  7  A.  &  E.  40. 


semayne's  case. 


165 


where  there  is  a  judgment  against  an 
administrator  de  bonis  tesluloris,  and  slie 
marries,  the  sheriff  may  enter  her  hus-^ 
band's  house  to  search  for  the  goods  of 
r  ^..-  ,  the  testator.  Coolie  v.  Birt,  5 
^  J  Taunt.  *771;  and,  although  the 
sheriff  must  not  break  open  the  oulkr 


passer.  This  doctrine  has  been  carried 
still  farther:  for  it  has  been  tiiought  that 
he  cannot,  even  though  he  may  have 
grounds  for  suspicion,  justifying  entering 
tlie  dwelling-house  of  a  third  person,  al- 
though he  break  no  door,  unless  it  prove 
in  the  event  that  the  defendant  or  his 


door  of  the  defendant's  house  in  order  to  goods  were  actually  therein.     In  Cooke 

execute  the  process  (see  Kerbey  v.  Den-  v.  Birt,  5  Taunt.  765,  Dallas,  J.,  says, 

bey,  1   1\I.  «Si  VV.  336),  yet,  having  ob-  "  The  sheriff  may  enter  the  house  of  a 

tained  admission  to  the  house,  he  may  jus-  stranger  if  llie  door  be  open;  but  it  is 

tify  the  afterwards  breaking  open  inner  at  his  peril  whether  the  goods  be  found 

doors  in  order  to  execute  the  process,  as  there  or  not ;  if  they  be  not,  he  is  a  tres- 


he  may  cupboards,  trunks,  &c.  Lee  v. 
Gansel,  Cowp.  1 ;  { Williams  v.  Spencer, 

5  Johnson,  352;  The  State  v.  Thackam 

6  Mason,  1  Bay,  358;}  R.  v.  Bird,  2 
Show.  87;  Hutchinson  v.  Birch,  4  Taunt. 
619;  see  Ratcliffe  v.  Burton,  3  B.  &  P. 
223.  And  the  maxim,  that  "a  man's 
house  is  his  castle,"  only  extends  to  his 
dwelling-\\o\xse ;  therefore,  a  barn  or  out- 
house, not  connected  with  the  dwelling- 
house,  may  be  broken  open.  Penton  v. 
Browne,  1  Sid.  181, 186;  {but  a  request 
for  admittance  must  first  be  made  ;  Bur- 
ton et  al  V.  Wilkinson  et  al.  18  Vermont, 
186,  189. }  And  if  the  defendant,  after 
being  arrested,  escape,  the  sheriff  may 


passer."  The  expressions  of  Gibbs,  C. 
J.,  are  to  the  same  effect.  In  Johnson 
V.  Leigh,  6  Taunt.  245,  in  trespass  for 
breaking  and  entering  the  plaintiff's 
house,  and  breaking  the  inner  doors, 
locks,  &c.,  the  defendant,  as  sheriff,  jus- 
tified entering  under  a  testatum  capias, 
against  T.  Johnson,  the  outer  door  being 
open,  and  there  being  reasonable  and  suf- 
ficient cause  to  suspect  and  believe,  and 
the  defendant  suspecting  and  believing, 
that  T.  Johnson  was  in  the  house.  On 
demurrer,  Gibbs,  C.  J.,  said,  "  In  Hut- 
chinson V.  Birch,  4  Taunt.  619,  the  goods 
were  in  the  house,  here  the  defendant 
only  avers  a  suspicion   that  T.  Johnson 


break  open  either  his  own  house, or  that  was  in  the  house;    I   protest  that  the 

of  a  stranger,  for  the  purpose  of  retaking  court  have  not  decided  tiiis   point,  or 

him.     Anon.  6  Mod.  1U5,   Loftt.  390;  dropt,  in  the  case  of  Hutchinson  v.  Birch, 

vide  Lloyd  v.  Sandilands,  8  Taunt.  250.  anything  which  favours  the  opinion,  that 

[So,  where  a  bailiff  who  has  entered  the  it  may  not  go  abroad  to  the  world  that 


house  to  distrain,  or  execute  process,  is 
forcibly  ejected,  he  may  break  open  the 
door  in  order  to  re-enter,  Eaglelon  v. 
Gutleridge,  11  M.  &,  W.  465;  Pugh  v. 
Griffiths,  7  A.  &  E.  838,  Aga  Kurboolie 
Mahomed  v.  The  Queen,  4  Moore  (Privy 
Council),  239.]      |The   principle  is  the 


we  have  so  decided."  Leave  was  given 
to  amend  the  plea.  However  it  is  appre- 
hended that  circumstances  might  exist, 
under  which  the  sheriff"  would  be  justi- 
fied in  entering  the  house  of  a  stranger 
on  suspicion,  though  the  defendant  were 
not  actually  there.     Supposing,  for  in- 


same,  where  there  has  been  an  arrest  of  stance,  that  the  defendant  were  on  a  visit 

the  person,  and  a  levy  upon  goods  :  the  with  the  stranger,  the  dwelling-house  of 

rule,  in  its  true  form,  being,  thai,  for  the  the  stranger  would  seem  to  be,  pro  tem- 

purpose  of  serving  civil  process  in  the  pore,  the  defendant's  dwelling-house,  so 

first  instance,  whether  against  the  per-  as  to  entitle  the  sheriff  to  enter  it;  upon 


son  or  goods  of  the  defendant,  the  oflicer 
cannot  justify  the  breaking  of  the  outer 
Loor  of  the  defendant's  dwelling-house, 
but  where  the  execution  of  the  process 
has  been  properly  coinmenced,  iha  officer 


the  principle  on  which  Cooke  v.  Birt  was 
decided,  namely,  that  of  its  being  the 
place  where  it  would  be  natural  to  ex- 
pect the  defendant,  or  his  goods  to  be. 
I  iiave  seen  a  plea  framed  on  that  idea. 


may  afterwards  break  the  outer  door,  if    and  indeed  the  point  is  virtually  so  ruled 


necessary,  for  the  purpose  of  continuing 
and  completing  the  execution  ;  Glover  v. 
VVhittenhall,  6  Hill,  597;  Saunders  v. 
Mill  ward  etal,  4  Harrington,  246. }  it  is 
above  stated  that  thesheriffcannot  justify 
breaking  open  the  outer  door  of  a  stran- 
ger's house,  unless  it  prove  that  the  de- 
fendant or  his  goods  are  actually  there; 


by  Sheere  v.  Brooks,  2  H.  Bl.  120,  where 
it  was  held,  that,  when  the  defendant 
resided  in  the  house  of  a  stranger,  the 
bail  above  might  justify  entering  it  in 
order  to  seek  for  him,  the  outer  door 
being  then  open  ;  for,  said  Lord  Lough- 
borough, "  I  see  no  difference  between  a 
house  of  which  he  is  solely  possessed, 


if  they  be  not  there  he  will  be  a  tres-     and  a  house  in  which  he  resides  with  the 


166 


SMITHS  LEADING  CASES. 


consent  of  another."  It  seems  to  follow 
from  this,  that,  as  a  house  in  which  the 
defendant  habitually  resides  is  on  the 
same  footintr  with  respect  to  executions 
as  his  own  house,  the  sheriff  would  not 
be  justified  in  breaking  the  outer  door  of 
such  a  house,  even  after  demand  of  ad- 
mittance and  refusal.  There  may,  per- 
haps, be  another  case  in  which  die  sheriff 
might  justify  entering  the  house  of  a 
stranger,  upon  bare  suspicion,  viz.  if  the 
stranger  were  to  use  fraud,  and  to  in- 
veigle the  sheriff  into  a  belief  that  the 
defendant  was  concealed  in  his  house, 
for  the  purpose  of  favouring  his  escape, 
while  the  officers  should  be  detained  in 
searching,  or  for  any  other  reason,  it 
might  be  held  that  he  could  not  take  ad- 
vantage of  his  own  deceit  so  as  to  treat 
the  sheriff,  who  entered  under  the  false 
supposition  thus  induced,  as  a  trespasser ; 
or,  perhaps,  such  conduct  might  be  held 
to  amount  to  a  license  to  the  sheriff  to 
enter.  See  Price  v.  Harwood,  3  Camp. 
108;  Walker  v.  VVilloughby,  6  Taunt. 
r)30  ;  and  anaiionymousca.se  in  Chitty's 
Gen.  Prac.  of  Law,  1st.  Edit.  vol.  3,  p. 
354,  n,  X.  {But  in  Morrish  v.  Murrey, 
13  M.  &  W.  52,  a  plea  alleging  that  the 
defendant  in  an  execution  had  resided  in 
the  plaintiff's  house  for  six  months  next 
preceding  the  trespass,  and  tJiat  the 
sheriff  had  good  ground  to  suspect  and 
believe,  and  did  actually  suspect  and 
believe,  that  the  person  was  then  in  the 
house,  was  decided  to  be  insufficient  in  an 
action  against  the  sheriff  for  entering  the 
plaintiff's  house;  and  the  rule  was  laid 
down,  without  qualification  by  Alderson, 
B.,  that  "a  party  who  enters  the  house 
of  a  stranger  to  search  for  and  arrest  a 
defendant,  can  be  justified  only  by  the 
event."} 

r*4fi1  '^'^^  distinction  taken  in  this 
^  -I  case  ^between  process  at  the  suit 
of  the  king  and  that  of  an  individual,  is 
recognised  in  Burdett  v.  Abbott,  14  East, 
157;  La u nock  v.  Brown,  2  B.&,  A.  592 ; 
2  Hale,  P.  C.  117;  Foster  on  Homicide, 
p.  320. 

It  is  laid  down  in  the  text,  that,  before 
the  sheriff  breaks  the  outer  door  of  a 
stranger's  house,  in  those  cases  in  which 
he  has  right  to  do  so,  he  ought  to  demand 
adiriission;  and  this  is  also  necessary 
when  he  breaks  open  the  defendant's  own 
doors  in  order  to  execute  the  process  of 
the  crown,  Launock  v.  Brown,  2  B.  &.  A. 
592;  even  in  case  of  felony,  2  Hale,  P. 
C.  117  ;  Foster  on  Homicide,  p.  320  ;  or, 
in  order  to  retake  the  defendant  after  an 


escape ;  see  Genner  v.  Sparks,  1  Salk. 
79;  6  Mod.  173;  White  v.  Wilshire,  2 
Rolle's  Hep.  138.  [See  Palm.  52,  where 
the  bailiffs  were  imprisoned,  and  the 
door  broken  to  rescue  them.  On  a  simi- 
lar principle  in  De  Gondouin  v.  Lewis, 
10  A.  &  E.  120,  the  court  thought  that 
before  seizing  contraband  goods  from  the 
person  the  officers:,  ought  to  demand 
them.]  But  though  it  was  considered  in 
Ratclifie  v.  Burton,  3  B.  &  P.  223,  that 
admission  should  be  demanded  before 
breaking  an  zmier  door,  the  contrary  was 
decided  in  Hutchinson  v.  Birch,  4  Taunt. 
619.  {In  Kneas  v.  Fitler  and  others,  2 
Sergeant  &  Rawle,  263, 265,  the  opinion 
of  Foster,  that,  in  every  case,  civil  or 
criminal,  where  outer  doors  are  broken 
open,  there  must  be  a  previous  notifica- 
tion and  demand,  is  approved  of  by 
Yeates,  J. ;  and  the  dicta  in  Glover  v. 
Whittenhall,6  Hill,  597,599,  recognize 
the  necessity  of  a  reasonable  demand 
before  the  outer  door  is  forced  for  the 
purpose  of  recapturing  goods  that  have 
been  levied  upon.  But  in  Allen  v.  Mar- 
tin and  others,  10  Wendell,  300,  where 
it  was  decided,  that  if  one  arrested  es- 
cape into  his  own  house,  the  officer,  to 
retake  him,  may  break  the  outer  door,  it 
was  held,  that  the  party's  conduct  in 
having  violently  opposed  and  thrust  out 
the  officer,  dispensed  with  the  necessity 
of  a  previous  notification  and  demand, 
as  being,  in  snch  a  case,  "  a  senseless 
ceremony."}  [In  Pugh  v.  Grif-  r^.f:.^-, 
fiths,  *7  A.  &  E.  838,  the  sheriff's  L  ^°"J 
officer,  under  a  fieri  facias,  had  lawfully 
entered  a  house  and  seized  goods  there, 
and  the  outer  door  being  locked  upon 
him,  he  was  held  justified  in  breaking 
it  open  to  carry  away  the  goods,  there 
being  no  one  whom  he  could  request  to 
open  it.  In  Aga  Kurboolie  Mahomed 
V.  The  Queen,  4  Moore  (Privy  Council) 
239,  a  sheriff's  officer  in  the  execution 
of  a  bailable  writ  lawfully  entered  a 
house,  but  before  he  could  arrest  was 
forcibly  expelled;  he  obtained  assistance, 
and  without  demand  of  re-entry,  broke 
open  the  outer  door,  re-entered,  and 
made  the  arrest.  The  Judicial  Commit- 
tee of  the  Privy  Council  held  the  officer 
and  his  assistants  justified.  To  use  the 
pointed  languageof  the  judgment,  which 
was  delivered  by  Lord  Campbell,  "  'I'he 
outer  door  being  open,  they  were  entitled 
to  enter  the  house  under  civil  process, 
and  ihey  being  lawfully  in  the  house  to 
arrest  him,  he  was  guilty  of  a  trespass 
by  expelling  them.     The  act  of  locking 


SEMAYNE    S     CASE. 


167 


the  outer  door  was  unlawful,  and  he 
could  confer  no  privilege  upon  himself 
by  that  unlawful  act."] 

The  law  upon  this  subject  is  so  well, 
and,  at  the  same  time,  briefly  summed 
up  by  Sir  Michael  Foster,  in  his  Dis- 
course of  Homicide,  pp.  319,  20,  that  I 
cannot  forbear  inserting  his  account  of 
it  in  his  own  words;  it  is  as  follows: — 

"The  officer  cannot  justify  breaking 
open  an  outward  door  or  window  in  order 
to  execute  process  in  a  civil  suit ;  if  he 
do  he  is  a  trespasser.  But  if  he  findeth 
the  outward  door  open,  and  entereth  that 
way,  or  if  the  door  is  opened  to  him  from 
within,  and  he  entereth,  he  may  break 
open  inward  doors  if  he  findeth  that 
necessary  in  order  to  execute  his  process. 

"The  rule, that  ^ every  man' s house  is 
his  castle.^  when  applied  to  arrests  in 
legal  process,  hath  been  carried  as  far  as 
the  true  principlesof  political  justice  will 
warrant;  perhaps  beyond  what,  in  the 
scale  of  sound  reason  and  good  policy, 
they  will  warrant.  But  this  rule  is  not 
one  of  those  that  will  admit  of  any  ex- 
tension ;  it  must,  therefore,  as  I  have  be- 
fore hinted,  be  confined  to  the  breach  of 
windows  and  outward  doors,  intended 
for  the  security  of  the  house  against  per- 
sons from  without  endeavouring  to  break 
in. 

"It  must  likewise  be  confined  to  a 
breach  of  the  house  in  order  to  arrest 
the  occupier,  or  any  of  his  family,  who 
have  their  domicile,  their  ordinary  resi- 
dence, there;  for,  if  a  stranger,  whose 
ordinary  residence  is  elsewhere,  upon  a 
pursuit  taketh  refuge  in  the  house  of 
another,  this  is  not  his  castle,  he  cannot 
claim  the  benefit  of  sanctuary  in  it. 

"The  rule  is  likewise  confined  to 
cases  of  arrests,  in  the  first  instance ; 
for,  if  a  man,  being  legally  arrested 
(and  laying  hold  of  the  prisoner  and  pro- 
nouncing the  words  of  arrest  is  an  actual 
r*4661  ^'■'■^st),  ^escapes  from  the  officer 
-*  and  takes  shelter,  though  in  his 
own  house,  the  officer  may,  upon  fresh 
suit,  break  open  doors,  in  order  to  retake 
him  ;  having  first  given  due  notice  of  his 
business  and  demanded  admission,  and 
been  refused. 

"And  let  it  be  remembered  that  not 
only  in  this,  but  in  every  case  where 
doors  may  be  broken  open  in  order  to 
arrest,  whether  in  cases  criminal  or 
civil,  there  must  be  such  notification, 
demand,  atjid  refusal,  before  the  parties 
concerned  proceed  to  that  extremity. 

"The  rule  already  mentioned  must 


also  be  confined  to  the  case  of  arrest 
upon  process  in  civil  suits;  for,  where 
a  felony  hath  been  committed,  or  a 
dangerous  wound  given,  or  even  where 
a  minister  of  justice  comes  armed  with 
process  founded  on  a  breach  of  the  peace, 
the  party's  own  house  is  no  sanctuary 
for  him  ;  doors  may,  in  any  of  these 
cases,  be  forced  ;  the  notification,  de- 
mand, and  refusal  before-mentioned  hav- 
ing been  previously  made.  In  these 
cases,  the  jealousy  with  which  the  law 
watches  over  the  public  tranquillity  (a 
laudable  jealousy  it  is,)  the  principles  of 
political  justice,  I  mean  the  justice  which 
is  due  to  the  community,  ne  maleficia 
remaneant  impunita,  all  conspire  to 
supersede  every  pretence  of  private  in- 
convenience, and  oblige  us  to  regard  the 
dwellings  of  malefactors,  when  shut 
against  the  demands  of  public  justice,  as 
no  better  than  the  dens  of  thieves  and 
murderers,  and  to  treat  them  accord- 
ingly. But  bare  suspicion  touching  the 
guilt  of  the  party  will  not  warrant  a  pro- 
ceeding to  this  extremity,  though  a 
felony  has  been  actually  committed, 
unless  the  officer  comes  armed  with  a 
warrant  from  a  magistrate,  grounded  on 
such  suspicion." 

[It  is  laid  down  in  the  principal  case 
that  the  sheriff  breaking  an  outer  door 
to  do  execution  "  is  a  trespasser  by  the 
breaking,  and  yet  the  execution  which 
he  then  doth  in  the  house  is  good."  The 
authority  referred  to  for  this  proposition 
is  the  year  book  of  18  E.  4,  Pasch.  4  a. 
In  that  case,  after  fieri  facias  issued,  the 
defendant  locked  up  all  his  goods  in  his 
house,  whereupon  the  sheriff  broke  open 
the  outer  door  of  the  house,  entered,  and 
seized  the  goods ;  and  the  question, 
which  appears  to  have  been  raised  on  a 
motion,  though  the  form  of  the  proceed- 
ing is  not  distinctly  stated,  was,  whether 
the  sheriff  had  done  any  wrong  or  not. 
"  Littleton  and  all  his  companions  held, 
that  the  party  may  have  a  writ  of  tres- 
pass against  the  sheriff'  for  the  breaking 
of  the  house,  notwithstanding  this  fieri 
facias,  for  the  fieri  facias  shall  not  ex- 
cuse him  of  the  breaking  of  the  house, 
but  of  the  taking  of  the  goods  only."  It 
is  laid  down  accordingly,  in  Bacon's 
Abridgment,  Execution  (N),  "  that  if 
the  sheriff  in  executing  a  writ  break 
open  a  door,  where  he  has  no  authority 
for  *so  doing  by  la\y,  yet  the  ex-  mmq^i 
ecution  is  good,  and  the  party  has 
no  other  remedy  but  an  action  of  tres- 
pass against  the  sheriff"     This,  so  far 


1G8 


SMITHS    LEADING     CASES. 


as  relates  to  an  execution  against  goods, 
IS  consistent  with  the  doctrine  acted 
upon  by  tiic  Court  of  Queen's  Bench  in 
De  Gondouin  v.  Lewis,  10  A.  &  E.  120, 
where  the  defendant,  a  custom-house 
officer,  without  demand,  or  any  circum- 
stance to  justify  the  use  of  torce,  vio- 
lently took  contraband  goods  from  the 
manual  possession  of  the  plaintiff.  An 
action  of  trespass  was  brought  for  that 
seizure,  not  complaining  of  the  assault. 
The  Court  of  Queen's  Bench  held,  that 
the  fact  of  the  goods  being  forfeited  was 
an  answer  to  that  action,  notwithstand- 
ing that,  if  the  plaintiff  had  sued  in 
trespass  for  an  assault,  there  would  have 
been  no  justification.  And  the  reason  of 
the  thing,  as  well  as  the  authority  of 
Coke  and  of  Littleton,  seems  to  be  with 
the  decisions,  for  the  execution  creditor 
not  taking  part  in  the  execution  has 
been  guilty  of  no  wrong,  and  the  maxim 
nullus  commodum  capere  potest  de  in' 
juria  Slid  propria  (see  Co.  Litt.  148  b), 
is  therefore  not  violated  by  holding  so 
much  of  the  acts  of  the  sheriff  as  was 
for  the  benefit  of  the  execution  creditor 
valid,  and  the  rest  illegal.  However,  in 
Yates  V.  Delamayne,  Trin.  T.,  17  Geo. 
3,  Bacon's  Abridgment,  Execution  (N), 
an  execution  against  the  goods  is  stated 
to  have  been  set  aside  on  the  ground 
that  an  outer  door  had  been  illegally 
broken  open  for  the  purpose  of  making 
the  seizure.  That  case,  though  hard  it 
may  be  considered,  if  interfering  with  a 
strict  legal  right  of  the  execution  credi- 
tor, is  perhaps  not  irreconcileable  with 
the  doctrine  under  discussion  ;  because, 
it  is  quite  consistent  with  the  validity 
of  the  execution  in  point  of  law,  that 
the  court,  to  prevent  an  abuse  of  its 
process  and  the  danger  of  collusion  be- 
tween the  execution  creditor  and  the 
sheriff  should,  in  the  exercise  of  its  sum- 
mary jurisdiction,  undo  the  proceedings, 
according  to  the  principle  acted  on  in 
Barrett  v.  Price,  9  Bing.  566,  and  other 
cases.  It  is  the  practice  in  like  manner, 
to  discharge  persons  taken  under  process 
against  tiie  person,  by  means  of  an  ille- 
gal entry  into  a  dwelling  house;  Hodg- 
son V.  Towning,  W.  VV.  &  D.  53 ;  5 
Dowl.  410,  S.  C.  And  there  is  autho- 
rity for  saying,  that  an  arrest  of  the 
person  by  means  of  an  illegal  breaking 
of  the  outer  door,  is  altogether  void,  and 
that  the  sheriff  is  liable,  in  case  of  such 
arrest,  not  merely  for  the  breaking  and 
entering  of  the  house,  but  also  for  the 
assault  and  imprisonment;  for,  in  Kerbey 


V.  Dcnbey,  1  M.  &  W.  330 ;  Tyrw.  & 
Gr.    6S8,    S.    C,   to  a   declaration   for 
breaking  and  entering  a  house  and  as- 
saulting  and   imprisoning  the   plaintiff, 
the    defendant     amongst    other    pleas, 
pleaded,  except  as  to  the  breaking  and 
entering  the  house,  a  justification  under 
a  capias  ad  satisfaciendum  stating  the 
arrest  *to  have  been  in  a  dwelling  r^.p  i-. 
house,  and  the  outer  door  to  have  ^         ■' 
been  open.     The  Court  of  Exchequer 
hold,  that  the    fact  of  the  outer   lioor 
being  open   was  a  material   averment, 
and  that  fact  being  disproved,  that  the 
judge  was  right  in  directing  a  verdict  for 
iho  plaintiff"  on  the  plea  of  justification, 
(which  it  has  been  seen,  was  pleaded 
to  the  assault  and  imprisonment  only) 
with   damages    for   all   the    trespasses. 
This  decision,  if  consistent  with  the  doc- 
trine in  the  principal  case,  points  to  a 
distinction  between  the  cases  of  process 
against  the  goods  and  against  the  person, 
and  one  which  may  be  thought  to  spring 
from  the  intention  of  the  rule  in   Se- 
mayne's  case,  viz.,  to  preserve  the  secu- 
rity and  repose  of  the  person,  an  inten- 
tion directly,  immediately,  and  entirely 
violated    by   the    arrest  of  the    body, 
whereas  the  seizure  of  the  goods  which 
are  bound  by  the  writ,  and  in  which  the 
execution  creditor  has  an  interest,  only 
defeasible  after  the  delivery  of  the  writ 
to  the  sheriff  bv  a  sale  in  market  overt, 
(see  Samuel  v.'Duke,  3  M.  &  W.  022), 
may  be  considered  as  but  an  indirect 
and  remote  disturbance  of  the  repose  of 
the  debtor.    It  may  be  doubted,  however, 
whether  in  Kerbey  v.  Denbey  the  court 
of  Exchequer  meant  to   proceed  upon 
such   a   distinction;    and    in    Brooke's 
Abridgment,  Trespass,  390,  18  E.  4  P.  4 
a-  is  stated  thus,  "  Trespass,  the  sheriff 
cannot  break  house  or  chest  to  do  exe- 
cution by  fieri  facias,  per  curiam;  but 
he   may  take  the  goods  or  the  body  tor 
(pur)  execution,"  (an  abridgment  which 
extends  the  original  in  two  particulars, 
the  first  obviously  erroneous),  and  the 
passage   above  referred   to   in    Bacon's 
Abridgment   is  to  the  same  effect.     See 
too  as  to  a  distress,  Viner's  Abridgment, 
tit.  Replevin,  A.  a.  8,  9.     These  obser- 
vations must  therefore  be  considered  as 
merely  suggestive  upon  a  point  which 
seems  likely  to  be  the  subject  of  further 
discussion. 

It  may  here  be  added,  that  in  a  case 
like  Yates  v.  Delamayne,  supra,  inas- 
much as  the  seizure  by  the  slltriff  under 
a  fieri  facias,  of  goods  to  the  value  of 


semayne's   case.  1G9 

the  judrrmpiit  drbt,  is  s:iid  to  operate  by  it  would   perliaps  be  difficult  to  suggest 

way  of  satisfaction,  (Wilbraham  V.  Snow,  wiiat   valnl    defence   the    sherifT   could 

2  VVtns.  Saund.  47,  a,  note  (1),  and   per  make.     It  would,  however,  be  a  p^Qgi 

cur.  Holmes  v.  Newlands,  5  Q.  B.  370),  wild  sort  of  ^justice  to  make  him  •-         •* 

a  question  may  ari.'-e  as  to  the  defence  of  pay  the  debt  and  costs  by  way  of  addi- 

the  e.xecution  creditor  to  an  audita  que-  tiotial  punishment  of  his  illegal   entry, 

rela,  after  the  goods  have  been  ordered  for  which   he  would,   at  all   events,   be 

to  be  restored  to  the  execution  debtor,  liable    to    answer    in   damages    to    the 

Probably,  the  bringing  of  an  flWr/(7a  (/?<e-  debtor.     At   least,   it  would   seem   that 

rela  would  be  considered  as  a  breach  of  the  jurisdiction    exercised   in   Yates   v. 

good  faith,  after  a  successful  application  Delamnyne,  (except  in  cases  where  the 

to  restore  the  goods.    If  not,  the  alterna-  execution  creditor  has  employed  a  spe- 

tive  would  be,  to  hold  tlie  sherilT  liable  cial   bailiff,  or  been   privy  to  the  illegal 

to  the  execution  creditor  as  upon  a  law-  entry,)  ought  to   be  adriiinistcred   with 

ful  seizure;  and,  indeed,  in  such  a  case  great  caution.] 


The  principles  of  Semayne's  case,  were  adopted  in  the  State  v.  Armfield 
&  Wright,  2  Hawks,  24G;  and  it  was  there  decided,  that,  where  one  of 
the  family,  upon  the  approach  of  the  officer,  had  run  into  the  house,  and 
attempted  to  close  the  door,  and  before  the  door  was  entirely  closed,  the 
officer  had  forced  it  open  and  entered,  the  officer  was  not  justified,  but  was 
liable  to  an  indictment.  In  Curtis  v.  Hubbard,  1  Hill's  N.  Y.  337,  it  is 
decided,  that  to  make  the  sheriff  a  trespasser,  it  is  enough  that  the  outer 
door  be  shut;  merely  opening  is  a  breaking  in  law;  lifting  a  latch  is  as 
much  a  breaking,  in  law,  as  the  forcing  of  a  door  bolted  with  iron ;  what- 
ever would  be  a  breaking  of  the  outer  door  in  burglary,  is  a  breaking 
by  the  sheriff;  sliding  down  a  window  fastened  by  pulleys,  would  in  both 
cases,  be  a  breaking:  it  is  decided  also,  that  a  guest,  or  mere  visitor  at  the 
house,  is  justified  in  resisting  the  sheriff,  and  rescuing  goods  which  he  has 
seised:  and  this  case  was  affirmed  in  the  Court  of  Errors.  4  id.  437.  See 
Dent  V.  Hancock,  5  Gill,  120,  126. 

It  is  said,  in  the  Year  Books,  the  principal  case,  and  elsewhere,  that 
though  the  entry  of  the  officer  is  illegal,  yet  the  execution  of  the  writ  is 
good.  The  point  is  examined  at  some  length  by  Shaw,  C.  J.,  in  Ilsley  v. 
Nichols  et  al.,  12  Pickering,  270,  and  it  is  shown  that  this  notion  is  erro- 
neous, and  that  the  execution  is  void :  and  this  case  is  adopted  and  acted 
upon,  in  The  People  v.  Hubbard,  24  Wendell,  3G9,  and  by  the  Court  of 
Errors,  in  Curtis  v.  Hubbard,  4  Hill's  N.  Y.  437  :  and  again,  in  State 
V.  Hooker,  17  Vermont,  659,  672,  it  is  decided,  that  if  the  sheriff  break 
open  the  party's  outer  door,  and  proceed  to  arrest  him,  the  latter  may  for- 
cibly resist  him,  and  will  not  be  indictable  for  an  assault  and  battery  ;  and 
both  the  sheriff  and  his  assistants  will  be  trespassers;  Hooker  v.  Smith  et 
al,  19  id.  152,  154.  But  the  merit  of  correcting  this  venerable  error,  is 
due  to  Theron  Metcalf,  Esquire,  to  whose  able  and  excellent  note  to  Se- 
mayne's case,  as  reported  by  Yelverton,  the  reader  is  referred, — Metcalf's 
Yelverton,  29. 

H.  B.  W. 


170  smith's  leading  cases. 


[=:=47]  =^CALYE'S  CASE. 

PASCH.  2r.  ELIZ.— IN  THE  KING'S  BENCH. 

[reported  8   COKE,   32.] 

Liability  of  Innkeepers. 

It  was  resolved,  jjer  totam  curiam,  that  if  a(a)  raan  comes  to  a  common  inn, 
and  delivers  his  horse  to  the  hostler,  and  requires  him  to  put  him  to  pasture, 
■which  is  done  accordingly,  and  the  horse  is  stolen,  the  innholder  shall  not 
answer  for  it;  for  the  words  of  the  writ,  which  lieth  against  the  hostler  are, 
Cum  secundum  legem  et  consuetud'  regni  nostri  AngJix(b)  hospitatores  qui 
hospitia  com'  tcnent  ad  hospitandos  homines  per  2^c-rtes  tihi  hujusmodi  hos- 
pitia  existunt  transeunfes,  et  in  eisdem  hospitantes,  eorum  bona  et  catalla 
infra  hospitia  ilia  existentia  ahsque  suhtractione  sen  amissione  custodire  die 
et  nocte  tenentur,  ita  quod  pro  defectu  hujusmodi  hospitatoritm  seu  servien- 
tium  suorum  hospitibus  hujusmodi  damnum  non  eveniat  ullo  modo,  quidajn 
malefactores  quendam  equum  ipsius  A.  precii  40s.  infra  hospitium  cjusdem 
B.  dec.  inventum,  jjro  defectu  ipsius  B.  ceperunt,  ^'C.  Vide  Registr.  fol. 
105,  inter  Brevia  de  Transgr'  and  F.  N.  B.  94,  a.  b.,  by  which  original 
writ  (which  is  in  such  case  the  ground  of  the  common  law)  all  the  cases 
concerning  hostlers  may  be  decided.  For,  1.  It  ought  to  be  a(c)  common 
inn ;  for  if  a  man  be  lodged  with  another  (who  is  not  an  innholder)  upon 
request,  if  he  be  robbed  in  his  house  by  the  servants  of  him  who  lodged 
him,  or  any  other,  he  shall  not  answer  for  it;  for  the  Vfovds  nvehoqyitatores 
qui  com'  hospitia  tenent,  d:c.  And  so  are  the  books  in((Z)  22  Hen.  6, 
21,  b,(e)  38 ;(/)  2  Hen.  4,  7,  b  ^{g)  11  Hen.  4,  45,  a,  b  ){h)  42  Ass.  pi. 
17  ;(i)  42  E.  3,  11,  a;  10  YA.;[k)  Dyer,  266  ;  5  Mar.  Dyer,  lo8.(/)  And 
the  writ  need  not  mention  that  the  defendant  keeps  commune  hospitiiwi,  for 
r  *19.  1  *^^  words  of  the  writ  in  the  *Register  are,  i7ifra  hospitium  ejusdem 
L  -I  ^.,  but  it  is  to  be  so  intended  in  the  writ;  for  the  recital  of  the  writ  is, 
hospitatores  qui  communia  hosjjitia  tenent,  cC'c,  and  the  one  part  ought  to 
agree  with  the  other,  and  the  latter  words  depend  on  the  other,  and  the 

(ff)  1  Roll.  3,  4.     4  Leon.  96.     2  Drownl.  255. 

(6)  Plowd.  9  b,  the  Register  is  false  printed,  scilicet,  Distraclione  pro  subtractione. 
F.  N.  B.  94,  a  &,  b,  Book  of  Entries,  tit.  Hosteler,  f,  3GC  &,  377.  1  And.  29.  3  Keb.  73. 
Dyer,  26G,  b. 

(c)  1  Roll.  2,  d,  1.     Dr.  &.  Stud.  137,  b.  Hob.  245. 

(d)  Fitz.  Hosteler,  2.     Br.  Action  sur  le  Case,  58. 

(e)  22  Hen.  6,  38  b.     Fitz.  Hosteler,  1.     Br.  Action  sur  le  Case,  59. 

(/)  Fitz.  Hosteler,  4.     Br.  Action  sur  le  Case,  28.     Br.  Action  sur  le  Statute,  39. 

{g)  Br,  Action  sur  le  Case,  41.     Br.  General  Brief,  16.     Fitz.  Hostler,  5. 

(A)  Br.  Action  sur  le  Case,  86.     Palm.  523.     1  Roll.  3. 

(«')  Fiti.  Hosteler,  6.     Br.  Action  sur  Ic  Case,  15.     Stalham  Action  sur  le  Case,  6. 

{k)  Dyer,  266,  pl.  9,  Postea,  33,  a.     3  Keb  73. 

(/)  Dyer,  138,  pl.  52.     1  And,  29,  30.     3  Keb.  73.     1  Roll.  3,  4. 


oalte's   case.  171 

plaintiflf  ought  to  declare  that  he  keeps  commune  hospitium  :  and  so  the  said 
books  in(m)  22  Hen.  6,  21  ;{n)  11  Hen.  4,  5,  a,  b ;  40  Eliz.  Dyer,(o)  266, 
&c.  are  well  reconciled. 

2.  The  words  are,  ad  hospitandos  homines  per  partes  ubi  Jwjusmodi 
liospitia  existunt  transeunfes,  ct  in  eisdeni  hospitantcs ;  by  which  it  appears 
that  common  inns  are  instituted  for  passengers  and  wayfaring  men  ;  for  the 
Latin  word  for  an  inn  is,  diversorium,  because  he  who  lodges  there  is  quasi 
divertens  se  a  via  ;  and  so  diversorium.  And  therefore,  if  a(j9)  neighbour, 
who  is  no  traveller,  as  a  friend,  at  the  request  of  the  innholdcr  lodges  there, 
and  his  goods  be  stolen,  &c.  he  shall  not  have  an  action ;  for  the  writ  is  ad 
hospitandes  hom-ines,  &c.  tra7iseu7ites  in  eisdem,  hosjntantes,  &c. 

3.  The  words  are,  eorum  bona  et  catalla  infra  hospitia  ilia  existentia,  &c. 
So  that  the  innholder,  by  law,  shall  answer  for  nothing  that  is  out  of  his 
inn,  but  only  for  those  things  which  are  infra  Jiospitium.  And  because  the 
horse,  which  at  the  request  of  the  owner  is  put  to  pasture,  is  not  infra  hos- 
pitium, for  this  reason  the  innholder  is  not  bound  by  law  to  answer  for  him, 
if  he  be  stolen  out  of  the  pasture  ;  for  the  thing  with  which  the  hostler  shall 
be  charged  ought  to  be  iitfra  hospitium ;  and  therewitb  agree  the  books 
in(5)  11  Hen.  4,  45,  a,  b;  22  Hen.  6,  21,  b;  42  E.'S,  11,  a,  b  ;  42  Ass. 
pi.  17,  where  Knivet,  C.  J.,  saith,  that  the  innholder  is  bound  to  answer 
for  himself,  and  for  his  family,  of  the  chambers  and  stables,  for  they  are 
infra  hospitium :  and  with  this  resolution  in  this  point  agreed  the  opinion 
of  the  Justices  of  Assize  (viz.  the  two  Chief  Justices,  Wray  and  Anderson) 
in  the  county  of  Suffolk  in  Lent  vacation,  26  Eliz.  that  if  an(r)  innholder 
lodges  a  man  and  his  horse,  and  the  owner  requires  the  horse  to  be  put  to 
pasture,  and  there  he  is  stolen,  the  innholder  shall  not  answer  for  him.(s) 
But  it  was  held  by  them,  that  if  the  owner  doth  not  require  it,  but  the  inn- 
holder of  his  own  head  puts  his  guest's  horse  to  grass,  he  shall  answer  for 
him  if  he  be  stolen,  &c.  And  it  is  to  be  observed,  that  this  word  ^  ^,f.  -. 
hostler  is  derived*  ah  hostle  ;  and  hosjntator,  which  is  used  in  writs  L  -• 
for  an  innholder,  is  derived  ab  hospitio,  and  hospes  est  quasi  hospitium 
petens. 

4.  The  words  are,  ita  quod  pro  defectu  hospitator'  seu  servientum  suorum, 
&c.  hospitihus  hujusmodi  damn'  non  eveniat,  &c.,  by  which  it  appears  that 
the  innholder  shall  not  be  charged,  unless  there  be  a  default  in  him  or  his 
servants,  in  the  well  and  safe  keeping  and  custody  of  their  guest's  goods 
and  chattels  within  his  common  inn  ;  for  the  innkeeper  is  bound  in  law  to 
keep  them  safe  without  any  stealing  or  purloining ;  and  it  is  no  excuse  for 
the  innkeeper  to  say,  that  he  delivered  the(<)  guest  the  key  of  the  chamber 
in  which  he  is  lodged,  and  that  he  left  the  chamber-door  open ;  but  he 
ought  to  keep  the  goods  and  chattels  of  his  guest  there  in  safety ;  and 
therewith  agrees,  22  Hen.  6,  21  b  ;  11  Hen.  4,  45,  a,  b;  42  Edw.  3,  11,  a. 
And  although  the  guest  doth  not  deliver  his  goods  to  the  innholder  to  keep, 
nor  acquaints  him  with  them,  yet  if  they  be  carried  away,  or  stolen,  the 

(m)  Antea,  32,  a.     Filz.  Hostler,  2.     Br.  Action  sur  le  Case,  58. 

(7?)  1  Roll.  4.     Br.  Action  sur  le  Case,  41.     Br.  Gen.  Brief,  16.     Fitz.  Hosteler,  5. 

(0)  Dyer,  266,  pi.  9.     3  Keb.  73. 

{p)  1  Roll.  3.  E.  4.     2  Brown,  254.  (q)  1  Roll.  4. 

(r)  1  Roll.  3,  4.    4  Leon.  96.     2  Brownl,  255. 

(s)  1  Roll.  3,  4.     4  Leon.  96.     2  Brownl.  255. 

(0  Moor,  78,  pi.  207.     158,  pi.  299.    2  Brownl.  255. 


172  smith's   leading   cases. 

innkeeper  shall  be  cliarged,  and  therewith  agrees,  42  Edw.  3,  11,  a.  And 
although  they  who  stole  or  carried  away  the  goods  be  unknown,  yet  the 
innkeeper  shall  be  charged.  22  Hen.  G,  38.  8  R.  2,  Hostler  7.  Vide  22 
Hen.  6,  21.  But  if  the  guest's  servant,  or  he  who(^<)  comes  with  him,  or 
he  whom  he  desires  to  be  lodged  with  him,  steals  or  carries  away  his  goods, 
the  innkeeper  shall  not  be  charged ;  for  there  the  fault  is  in  the  guest  to 
have  such  a  companion  or  servant ;  and  the  words  of  the  writ  are,  ])ro  de- 
fcctu  hospitator'  sen  servientium  suorum.  Vide  22  Hen.  6,  21,  b.  But  if 
the  innkeeper  appoints  one  to  lodge  with  him,  he  shall  answer  for  him,  as 
it  there  appears.  The  inukeeper(r)  requires  his  guest  that  he  will  put  his 
goods  in  such  a  chamber  under  lock  and  key,  and  then  he  will  warrant 
them,  otherwise  not,  the  guest  lets  them  lie  in  an  outer  court,  where  they 
are  taken  away,  the  innkeeper  shall  not(H')  be  charged,  for  the  fault  is  in 
the  guest,  as  it  is  held,  10  Eliz.  Dyer,  266. 

5.  The  words  are,  hospitibus  damnum  non  eveniat :  these  words  are  gen- 
eral, and  yet  forasmuch  as  they  depend  on  the  precedent  words  they  will 
produce  two  effects,  viz.  1.  They  illustrate  the  first  words.  2.  They  are  re- 
strained by  them  :  for  the  first  words  are,  eorum  bona  et  cataV  infra  hos- 
r  *'S0  ~\P^^^^  ^'^^^  cxistentia  absque  subtractione  custodire,  &c.,  which  words* 
I-  -^  {bona  et  catalla)  by  the  said  words,  iia  quod,  &c.  hospitibus  dam- 
num non  eveniat,  although  they  do  not  of  their  proper  nature  extend  Xo[x) 
charters  and  evidences  concerning  freehold  or  inheritance,  or{y)  obligations, 
or  other  deeds  or  specialties,  being  things  in  action,  yet  in  this  case  it  is 
expounded  by  the  latter  words  to  extend  to  them;  for  by  them  great  dam- 
ages happen  to  the  guest :  and  therefore,  if  one  brings  a  bag  or  chest,  &c., 
of  evidences  into  the  inn,  or  obligations,  deeds,  or  other  specialties,  and  by 
default  of  the  innkeeper  they  are  taken  away,  the  innkeeper  shall  answer 
for  them,  and  the  writ  shall  be  bona  et  catalla  generally;  and  the  declara- 
tion shall  be  special.  2.  These  words,  bona  et  catalla,  restrain  the  latter 
words  to  extend  only  to  moveables :  and  therefore,  by  the  latter  words,  if 
the  guest  be  beaten  in  the  inn,  the  innkeeper  shall  not  answer  for  it ;  for 
the  injury  ought  to  be  done  to  his  moveables,  which  he  brings  with  him; 
and  by  the  words  of  the  writ,  the  innholder  ought  to  keep  the  goods  and 
chattels  of  his  guest,  and  not  his  person ;  and  yet  in  such  case  of  battery, 
hosjnti  damnum  evcnit,  but  that  is  restrained  by  the  former  words,  as  hath 
been  said.  And  these  words  aforesaid,  absque  subtractione  seu  omissione, 
extend  to  all  moveable  goods,  although  of  them  felony  cannot  be  committed; 
for  the  words  are  not  absque  felonica  cap)tione,  d-c,  but  absque  subtractione, 
which  may  extend  to  any  moveables,  although  of  them(2)  felony  cannot  be 
committed,  as  of  charters,  evidences,  obligations,  deeds,  specialties,  &c. 

[If  a  horse  is  at  livery,  and  eats  more  than  he  is  worth,  an  action  lies 
against  the  owner;  but  the  horse  cannot  be  used  or  sold,  Moor,  876,  877; 
but  by  the  custom  of  London  and  Exeter  the  horse  may  be  sold ;  but  see 
Popham,  127,  Robinson  v.  Waller.] 

{u)  Cro.  El.  285.  {v)  Moor,  158.  (»r)  Vide  Salk.  19. 

(a:)  2  Roll.  58.    22  E.  4,  12.  a,  b.  (y)  Dy.  5,  pi.  2.     2  Roll.  58.     Yd  v.  68. 

(«)  3  Inst.  109.     10  E.  4.  14,  a.    Fiiz.  Endict.  19.    Br.  Coron.  155. 


calye's    case. 


173 


This  is  the  leading  case  upon  the 
subject  of  tiie  liabilities  of  inn-keepers 
in  respect  of  their  guests'  property  :  in 
a  subsequent  case,  goods  belonging  to  a 
factor  were  lost,  out  of  a  private  room 
in  the  inn,  chosen  by  the  factor  for  the 
purpose  of  exhibiting  them  to  his  cus- 
tomers for  sale,  the  use  of  which  was 
granted  to  him  by  the  inn-keeper,  who, 
at  the  same  time,  told  him  that  there 
was  a  key,  and  that  he  might  lock  the 
door,  which  the  guest  however  neglect- 
ed to  do,  although  on  two  occasions, 
while  he  was  occupied  in  showing  part 
of  the  goods  to  a  customer,  a  stranger 
had  put  his  head  into  the  room.  The 
judge,  Richards,  C.  B.,  told  the  jury, 
that  prima  facie  the  inn-keeper  was  an- 
swerable for  the  goods  of  his  guest  in 
his  inn,  but  that  the  guest  might,  by  his 
r*-i  -1  own  conduct, discharge  him  from 
'-  -I  *responsibility,  and  left  it  to  them 
to  say  whether  he  had  done  so  here :  the 
jury  found  that  he  had :  and,  on  a  mo- 
tion for  a  new  trial,  the  court  approved 
of  the  direction  of  the  learned  judge, 
and  thought  the  verdict  was  correct. 
"The  law,"  said  Lord  Ellenborough, 
"obliges  the  inn-keeper  to  keep  the 
goods  of  persons  coming  to  his  inn, 
causa,  hospitandi,  safely,  so  that,  in  the 
language  of  the  writ,  pro  defectu  hospi- 
tatoris  hospitibus  damnum  non  eveniat 

ullo  modo But  there  may  no 

doubt  be  circumstances,  as  where  the 
guest,  by  his  own  misconduct,  induces 
the  loss,  which  form  an  exception  to  the 
general  liability,  as  not  coming  within 
the  words,  pro  defectu  hospilatoris. 
Now,  let  us  consider,  1st,  whether  the 
plaintift'  came  to  the  inn  causa  hospi- 
tandi; and,  2dly,  whether  by  his  con- 
duct he  did  not  induce  the  loss.  It  does 
not  appear  whether  he  had  a  sleeping- 
room,  but  I  think  we  may  presume  he 
had,  but  he  desires  a  private  room  up 
some  steps  in  order  to  show  his  goods. 
Now,  an  inn-keeper  is  not  bound  by  law 
to  find  show-rooms  for  his  guests,  but 
only  convenient  lodging-rooms  and  lodg- 
ing. As  to  what  is  laid  down  in  Calye's 
Case,  respecting  the  delivery  of  the  key 
to  the  guest,  it  plainly  relates  only  to 
the  chamber-door  in  which  he  is  lodged  ; 
and  r  agree  that  if  an  inn-keeper  gives 
the  key  of  the  chamber  to  his  guest,  this 
will  not  dispense  with  his  own  care,  or 
discharge  him  from  his  general  responsi- 
bility as  inn-keeper  .  .  .  The  cases," 
contmues  his  lordship,  "show  that  the 
rule  is  not  so  inveterate  ajrainstlhe  inn- 


keeper, but  that  the  guest  may  exone- 
rate him  by  his  fault,  as  if  the  goods  are 
carried  away  by  the  guest's  servant,  or 
the  companion  whom  he  brings  with 
him,  for  so  it  is  laid  down  in  Cayle's 
Case.  Now,  what  is  the  conduct  of  the 
plaintiff  in  this  case?  The  inn-keeper 
not  being  bound  to  find  him  more  than 
lodging,  and  a  convenient  room  for  re- 
freshment, this  does  not  satisfy  his  ob- 
ject, but  he  inquires  for  a  third  room, 
for  the  purpose  of  exposing  in  it  his 
wares  to  view,  and  introducing  a  num- 
ber of  persons,  over  whom  the  inn-keeper 
can  have  no  check  or  control,  and  thus 
for  a  purpose  wholly  alien  from  the  ordi- 
nary purpose  of  an  inn,  which  is  ad  hos- 
pitandos  homines.  Therefore,  the  care 
of  these  goods  hardly  falls  within  the 
limits  of  the  defendant's  duty  as  inn- 
keeper. Besides,  after  the  circumstan- 
ces relating  to  the  stranger  took  place, 
which  might  well  have  awakened  the 
plaintiff's  suspicion,  it  became  his  duty, 
in  whatever  room  he  might  be,  to  use, 
at  least,  ordinary  diligence  :  and  parti- 
cularly so,  as  he  was  occupying  the 
chamber  for  a  special  purpose:  for 
though,  in  general,  a  traveller  who  re- 
sorts to  an  inn  may  rest  on  the  protec- 
tion which  the  law  casts  around  him, 
yet,  if  circumstances  of  suspicion  arise, 
he  must  exercise  ordinary  care.  It 
seems  to  me  that  the  room  was  not 
merely  entrusted  to  the  plaintiff  in  the 
ordinary  character  of  a  guest  frequent- 
ing an  inn,  but  that  he  must  be  under- 
stood as  having  taken  a  special  charge 
of  it,  and  that  he  was  bound  to  exercise 
ordinary  care  in  the  safe  keeping  of  his 
goods,  and  it  is  owing  to  his  neglect, 
and  not  to  the  fault  of  the  inn-keeper, 
that  the  accident  happened  :  and  this 
was  a  question  proper  to  leave  to  the 
jury."  Burgess  v.  Clements,  4  M.  & 
S.  306,  accord.  Farnworth  v.  Packwood, 
1  Stark.  249.  [Sn,  where  the  defend- 
ant's ostler  placed  the  plaintiff's  horse 
in  a  stable  with  another  horse  that  kick- 
ed him,  and  the  defendant  to  rebut  the 
presumption  of  negligence  gave  evi- 
dence to  show  that  the  horse  had  been 
properly  taken  care  of;  the  judge,  Cress- 
well,  J.,  told  the  jury  that  the  defen- 
dant was  liable,  if  he  or  his  servants 
had  been  guilty  of  direct  injury  or  of 
negligence,  otherwise  not;  the  jury 
found  for  the  defendant;  and  the  court, 
(though  they  held  that  evidence  of  any 
damage  or  loss  of  the  goods  of  a  guest, 
prima  facie,  raises  a  presumption  of  neg- 


174 


smith's    leading   cases 


lig^ence  in  the  inn-keopcr,)  considered 
the  direction  proper.  Dawson  v.  Cham- 
ney,  5  Q.  B.  104.]  But  in  another  case, 
where  a  traveller  went  to  an  inn  with 
several  packages,  one  of  which  was,  by 
his  desire,  taken  into  the  commercial 
room,  into  which  he  was  shown,  and  the 
others  into  his  bed-room,  which,  accord- 
ing- to  the  usual  practice  of  that  inn, 
was  the  place  to  which  goods  were 
taken,  unless  orders  were  given  to  the 
contrary,  and  the  package  taken  into  the 
commercial  room  was  stolen,  the  inn- 
keeper was  held  responsible,  and  Hol- 
royd,  J.,  distinguished  the  case  from 
Burgess  v.  Clements,  by  saying,  that 
lliere  the  plaintiff  asked  to  have  a  room 
which  he  used  for  the  purposes  of  trade, 
not  merely  as  a  guest  in  the  inn. 
Richmond  v.  Smith,  8  B.  &  C.  9.  So 
in  Kent  v.  Shuckard,  2  B.  &  Ad.  808, 
the  plaintiff  and  his  wife,  with  Miss  S., 
arrived  at  the  defendant's  inn,  and  took 
a  sitting  room  and  two  bed-rooms  so 
situated  that,  the  door  of  the  sitting- 
room  being  open,  a  person  could  see  the 
entrances  into  both  bed-rooms.  On  the 
following  day  the  plaintiff's  wife  went 
into  the  bed-room,  and  laid  on  the  bed  a 
reticule,  which  contained  money,  and 
r  ^f-n  -I  returned  into  the  sitting-room, 
^  J  *leaving  the  door  between  that 
and  the  bed-room  open.  About  five 
minutes  afterwards  she  sent  Miss  S.  for 
the  reticule,  which  was  not  to  be  found. 
The  inn-keeper  was  held  responsible 
for  it,  and  it  was  held  that  there  was  no 
distinction  between  money  and  goods  as 
to  the  liability  of  inn-keepers.  So  when 
the  plaintiff  drove  his  gig  to  the  defen- 
dant's inn  on  Bewdley  fair-day,  and  ask- 
ed whether  there  was  room  for  the 
horse,  the  ostler  of  the  defendant  took 
the  horse  out  of  the  gig  and  put  him  into 
a  stable,  and  the  plaintiff  carried  his 
coat  and  whip  from  the  gig  into  the 
house,  and  took  some  refreshment  there, 
the  ostler  placed  the  gig  outside  of  the 
inn-yard,  in  a  part  of  the  open  street  in 
which  the  defendant  was  in  the  habit  of 
placing  the  carriages  of  his  guests  on 
fair-days.  The  gig  was  stolen  thence  : 
and  the  court  held  the  inn-keeper  res- 
ponsible, for  it  did  not  appear  that  the 
defendant  put  the  gig  in  the  street  at 


the  request  or  instance  of  the  plaintiff: 
the  place  was,  therefore,  a  part  of  the 
inn,  for  the  defendant  by  his  conduct 
treated  it  as  such.  If  he  wished  to  pro- 
tect himself,  he  should  have  told  the 
plaintiff  that  he  had  no  room  in  his 
yard,  and  that  he  would  put  the  gig  in 
the  street,  but  could  not  be  answerable 
for  it.  Jones  v.  Tyler,  11  Ad.  &  Ell. 
522. 

It  is  not  necessary,  in  order  that  a 
man  may  be  a  guest,  so  as  to  fix  the 
inn-keeper  with  this  sort  of  liability, 
that  he  should  have  come  for  more  than 
a  temporary  refreshment,  Bennett  v. 
Mellor,  5  T.  R.  273;  and  in  York  v. 
Grindstone,  1  Sal.  388,  2  Lord  Raym. 
860,  three  judges  held,  against  Lord 
Holt's  opinion,  that  if  a  traveller  leave 
his  horse  at  an  inn,  and  lodge  elsewhere, 
he  is,  for  the  purpose  of  this  rule,  to  be 
deemed  a  guest ;  "  because,"  said  they, 
"  it  must  be  fed,  by  which  the  inn-keeper 
hath  gain  ;  otherwise  if  he  had  left  a 
dead  thing."  But  it  is  clear  that  if  the 
inn-keeper  receive  goods  as  a  bailee, 
and  not  in  the  character  of  an  inn- 
keeper, they  do  not  fall  within  it.  Hyde 
V.  Mersey  and  Trent  Navigation  Com- 
pany, 5  T.  R.  389;  Jelly  v.  Clarke, 
Cro.  Jac.  188 ;  Bac.  Abr.  Inns,  C.  5. 
Williams  v.  Gesse,  3  Bingh.  N.  C.  849. 
{See  Smith  v.  Dearlove,  6  C.  B.  132.} 
The  length  of  time  for  which  the  guest 
has  resided,  seems  not  to  affect  his  right 
as  such,  provided  he  live  there  in  the 
transitory  condition  of  a  guest.  But  if 
he  came  on  a  special  contract  to  board 
and  lodge  there,  the  law  does  not  con- 
sider him  a  guest,  but  a  boarder,  Bac. 
Abr.  Inns,  C.  5;  Parkhurst  v.  Foster, 
Sal.  388. 

The  definition  of  an  inn  is,  "  a  house 
where  the  traveller  is  furnished  with 
every  thing  he  has  occasion  for  while 
on  his  wayy  Thompson  v.  Lacy,  3  B. 
&L  A.  263.  See  Bac.  Abr.  Inns,  B. ; 
but  a  mere  coffee-house  is  not  an  inn,  at 
least  not  within  the  meaning  of  a  fire 
policy.     Doe  v.  Laming,  4  Camp.  77. 

[As  to  duties  of  inn-keepers  in  receiv- 
ing guests,  &c.,  see  Fell  v.  Knight,  8 
M.  &  W.  269 ;  R.  v.  Ivens,  7  C.  &.  P. 
213  ;  Hawthorn  v.  Hammond,  1  Car.  & 
Kir.  404.] 


For  references  to  the  American  decisions  on  the  subject  of  the  liability 
of  Inn-keepers,  see  the  note  to  Coggs  v.  Bernard,  infra. 


croqate's    case.  175 


*CROGATE'S    CASE.  [===53] 

MICH.— 6JAC0BI  1. 

[REPORTED    8    COKE,    66.] 

Replication  De  InjuriA  when  allowable. 

Edward  Crogate  brought  an  action  of  trespass  against  Robert  Marys, 
for  driving  bis  cattle  in  Town-Barningham  in  Norfolk,  &c.(a)  The  defen- 
dant pleaded,  that  a  house  and  two  acres  in  Bassingham  in  the  said  county, 
were  parcel  of  the  manor  of  Thurgarton  in  the  same  county,  and  demised 
and  demisable,  &c.  by  copy,  &c.  in  fee-simple,  &c.  according  to  the  custom 
of  the  manor,  of  which  manor  William  late  Bishop  of  Norwich  was  seised  in 
fee  in  the  right  of  his  bishoprick,  and  prescribed  to  have  common  of  pasture 
for  him  and  his  customary  tenants  of  the  said  house  and  two  acres  of  land  in 
magna,  pecid  pasturce  vocaf  Bassingham  common,  p>ro  omnibus  averiis,  Sc. 
omni  tempore  anni,  and  the  said  Bishop  at  such  a  court,  &c.  granted  the 
said  house  and  two  acres  by  copy  to  one  William  Marys,  to  him  and  his  heirs, 
&c.  And  the  plaintiff  put  his  said  cattle  in  the  said  great  piece  of  pasture, 
wherefore  the  defendant,  as  servant  to  the  said  William,  and  by  his  com- 
mandment, molUter  drove  the  said  cattle  out  of  the  said  place,  where  the 
said  William  had  common  in  prccd'  villam  Town-Barningham,  adjoining 
to  the  said  common  of  Bassingham,  &c.  The  plaintiff  replied,  de  injuria 
Slid  propria  absque  tali  causa  :  upon  which  the  defendant  demurred  in  law. 
And  it  was  objected  on  the  plaintiff's  part,  that  the  said  replication  was  good 
because  the  defendant  doth  not  claim  any  interest,  but  justified  by  force 
of  a  commandment  ;  to  which  de  injuria  sua  p>'>'op>ria  absque  tali  causa,  may 
be  fitly  applied  ;  and  this  plea,  De  injuria  sua  propria,  shall  refer  only  to  the 
commandment,  and  to  no  other  part  of  the  plea,  and  they  cited*  r  ;j.r4^  -i 
the  books  in  10  H.  3.  3.  a.  b.  9.  a.  16  H.  7,  3.  a.  b.  &c.  3  H.  6.  35  L  -^ 
a.  19  H.  6.  7.  a.  b.  &c.  But  it  was  adjudged,  that  the  replication  was  in- 
sufficient. And  in  this  case  divers  points  were  resolved.  1.  That  absque 
tali  causct,  doth  refer  to  the(i)  whole  plea,  and  not  only  to  the  command- 
ment, for  all  maketh  but  one  cause,  and  any  of  them,  without  the  other,  is 
no  plea  by  itself.  And  therefore  in  (c)  false  imprisonment,  if  the  defendant 
justifies  by  a  capias  to  the  sheriff,  and  a  warant  to  him,  there,  de  injuria 
sua  2iroprid  generally  is  no  good  replication,  for  then  the  matter  of  record 
will  be  parcel  of  the  cause  (for  all  makes  but  one  cause),  and  matter  of  ((/) 

(o)  Doct.  pi.  114.  See  2  Salk.  fi28.  1  Ld.  Raym.  700.  12  Mod.  580.  Comyns  582,  583. 
pi.  254.  2  Lutw.  1347,  1350.  7  Viner,  503.  2  Saund.  295.  3  Lev.  65.  Hard.  6.  and  see  6 
E.  4.  6.  a. 

(6)  Cr.  Jac.  599.  2  Leon.  81.2  Saund.  235.     Doct.  pi.  114.  3  Bulstr.  285.  Cr.  Car.  138. 

(c)  Doct.  pi.  114.  2  Leon.  81.  2  E.  4.  6.  b.      (d)  4  Co.  71.  b.  9  Co.  25.  a.  Co.  Lit.  260.  a. 


176  smith's   leading  cases. 

record  ought  not  to  be  put  in  issue  to  the  common  people  but  in  such  case  he 
may  reply,  de  injun'd  sad  propria,  ami  traverse  the  warrant,  which  is  matter 
in  fact.  (J)  But  upon  such  justification  by  force  of  any  proceeding  in  the  Admi- 
ral Court,  hundred  or  county,  &c.,  or  any  other  which  is  not  a  court  of  record, 
there  de  injuria  sua  propria  generally  is  good,  for  all  is  matter  of  fact,  and 
all  makes  but  one  cause.  And  by  these  diflerences  you  will  agree  your  books 
in  2  H.  7.  3  b.  5  H.  7.  G.  a.  b.  16  H.  7.  3.  a.  21  H.  7.  22.  a.  (33).  19  H. 
6.  7.  a.  b.  41E.3.  29.b.  17  E.  3.  44.  18E.3.10.  b.  2  E.  4.  G.  b.  12 
E.  4.  10.  b. .  14  H.  G.  IG.     21  H.  6.  5.  a.  b.     13  II.  2.     Issue  163. 

2.  It  was  resolved,  that  when  the  defendant  in  his  own  right,  or  as  a  ser- 
vant to  another,  claims  any(e)  interest  in  the  land",  or  any  common,  or  rent 
going  out  of  the  land  ;  or  any(/)  way  or  passage  upon  the  land,  &c.,  there 
de  injuria  sua  propria  generally  is  no  plea,  (y)  But  if  the  defendant  justi- 
fies as  servant,  there  de  injuria  sud  propria  in  some  of  the  said  cases,  with 
a  traverse  of  the  commandment,  that  being  made  material,  is  good ;  and  so 
you  will  agree  all  your  books,  scil.  14  H.  4.  32.  33  H.  6.  5.  44  E.  3.  18. 
2  H.  5.  1.  10  H.  6.  3.  9.  39  H.  6.  32.  9  E.  4.  22.  16  E.  4.  4.  21 
E.  4.  6.  28  E.  3.  98.  28  H.  6.  9.  21  E.  3.  41.  22  Ass.  42.  44  E.  3. 
13.  45  E.  3.  7.  24  E.  3.  72.  22  Ass.  85.  33  H.  G.  29.  42  E.  3.  2. 
For  the  general  plea  de  injuria  sua  propria,  &c.  is  properly  when  the  defend- 
ant's plea  doth  consist  merely  upon  matter  of(/t)  excuse,  and  of  no  matter 
of  interest  whatsoever  ;  et  dicitur  de  injurid  sua  proprid,  ^'C,  because  the 
injury  properly  in  this  sense  is  to  the  person,  or  to(i)  the  reputation,  as 
P  ^- ,  -.  battery  or  imprisonment*  to  the  person ;  or  scandal  to  the  reputation ; 
L  J  there,  if  the  defendant  excuse  himself  upon  his  own  assault,  or  upon 
hue  and  cry  levied,  there,  properly(J)  de  injurid  sua  p)ropr id  generally  is 
a  good  plea,  for  there  the  defendant's  plea  consists  only  upon  matter  of  ex- 
cuse. 3.  It  was  resolved,  that(7i!)  when  by  the  defendant's  plea  any  au- 
thority or  power  is  mediately  or  immediately  derived  from  the  plaintiff,  there, 
although  no  interest  be  claimed,  the  plaintifi"  ought  to  answer  it,  and  shall 
not  reply  generally  (Ze  iHji'Mrui  swdpropna.  The  same  law  of  an(/)  authority, 
given  by  the  law ;  as  to  view  waste.  &c.  Vide  12  E.  4.  10.  9  Ed.  4.  31 
20  Ed.  4.  4.    42  Edw.  3.  2.     16  H.  7.  3. 

Lastly  it  was  resolved,  that  in  the  case  at  bar,  the  issue  would  be  full  of 
multiplicity  of  matter,  where  an  issue  ought  to  be  full  and  single  :  for  par- 
cel of  the  manor,  demisable  by  copy,  grant  by  copy,  prescription  of  common, 
&c.  and  commandment,  would  be  all  parcel  of  the  issue.  And  so,  by  the 
rule  of  the  whole  court,  judgment  was  given  against  the  plaintiff. 


"From   the    time  of  Crogate's  case  Per  Tindal,  C.  J.,  Bnrdons  v.  Selby,  3 

down  to  the  present  day,  llie  resokitions  Tyrwh.  435.     See  White  v.  Slubbs,  2 

of  the  court   made  in  that  case  have  as  \Vms.   Saund.  293,  b.  and   the    notes; 

to  the  greater  part  been  considered  law."  Cockerel    v.  Armstrong,  B.  N.  P.,  93, 

{d)  Doct.  pi.  114. 

(e)  Doct.  PI.  114.  Cr.  Eliz.  53D,  540.    Cr.  Jac.  225.  Yelv.  157.  1  Brownl.  215. 

r/)  Cr.  Jac.  5lt9.  ^o-)  Doct.  pi.  114.  g.  (A)  Doct.  pi.    115. 

(i)  Doct.  pi.  115.  Cr.  Eliz.  607.        (j)  Doct.  pi.  1 15.        (Jk)  Doct.  pi.  1 15.  Cro.  Car.  164. 

{I)  Doct.  pi.  115. 


CROOATES     CASE. 


177 


Willes,  99;  Jones  v.  Kitchin,  1  B.  &  P. 
76;  Langford  v.  Waghnrn,  7  Price,  670; 
Cooper  V.  Monke,  Willes,  52  ;  Bell  v. 
Warden,  Willes,  202 ;  Hooker  v.  Nye, 
4  Tyrwh.  777.  See  also  the  notes  to 
Craft  V.  Boite,  1  Wms.  Saund.  244,  c. ; 
Com.  Dig.  Pleader,  F.  18  ;  3  M.  29.  It 
is  unnecessary  to  do  more  here  than  refer 
to  the  above  cases,  because  they  are  fully 
canvassed  and  explained,  and  the  nature 
and  applicability  of  this  replication  set- 
tled, in  the  cases  of  Selby  v.  Bardons,  3 
Barnewall  &  Adolphus,  1;  affirmed  in 
error,  3  Tyrwh.  431 ;  Pigot  v.  Kemp,  3 
Tyrwh.  128,  and  Hooker  v.  Nye,  4 
Tyrwh.  777.  In  Selby  v.  Bardons,  the 
declaration  was  in  replevin  for  goods  and 
chattels.  Avowry,  that  the  plaintiff  was 
an  inliabitantof  that  part  of  St.  Andrew's, 
Ilolbfirn,  which  is  above  the  bars,  and 
occupiers  of  a  tenement  in  the  parish  of 
St.  George  the  Martyr  ;  that  a  rate  was 
duly  made  and  published  for  those  dis- 
tricts, in  which  the  plaintiif  was  rated  at 
71.,  of  which  the  defendant,  who  was 
collector,  gave  him  notice,  and  demand- 
ed payment,  which  being  refused,  he 
summoned  him  before  two  justices, 
where  he  appeared,  but  showing  no  cause 
for  his  refusal,  the  justices  made  there 
warrant  to  defendant  to  distrain,  under 
which  he  and  the  other  defendant,  as  his 
bailiff,  took  the  goods  and  chatties  in  the 
declaration  mentioned  as  a  distress. 
Plea  in  Bar,  de  injuria  sua  propria 
absque  tali  causa,  and  to  this  a  demurrer. 
There  were  other  pleas  in  bar  to  the 
same  effect,  and  demurred  to.  Upon 
argument  the  plea  was  held  good.  Pat- 
teson,  J.,  remarked,  that,  if  bad,  it  must 
be  so  either  because  the  avowry  claimed 
some  interest,  or  because  the  defendant 
justified  under  authority  in  law  within 
third  resolution  in  Crogate's  case,  or 
tor  multiplicity. 

"  In  the  first  place,"  said  his  lordship, 
"as  to  any  claim  of  interest,  it  is  plain 
that  the  avowries  claim  no  interest  what- 
ever in  land,  the  sort  of  interest  to  which* 
r  *.'^(j  1  '•hs  second  resolution  is  in  words 
L  J  confined.  But  supposing  any  in- 
terest in  goods  were  within  the  spirit  of 
that  resolution,  still  I  apprehend  that  it 
must  be  an  interest  existing  antecedent 
to  the  seizure  complained  of,  and  not  one 
which  arises  merely  out  of  that  seizure, 
otherwise  this  plea  never  could  be  good  in 
replevin,  when  a  return  of  goods  is  claim- 
ed, and  of  course  an  interest  in  them  is  as- 
serted  As,  therefore,  the  avowries 

in  this  case  show  no  interest  in  lands  or  in 
Vol.  I 12 


the  goods  seised  except  that  which  arises 
from  claiming  a  return  ;  and  as  I  find  no 
authority  f  )r  saying  that  such  claim  of  re- 
turn is  an  interest  within  the  second  reso- 
lution in  Crogate's  case;  it  seems  to  me 
that  the  avowries  show  matter  of  excuse 
only,  and  that  as  to  this  ground  of  objec- 
tion, the  general  pleas  in  bar  of  tZe  injuria 
are  good. 

"  In  the  next  place — Are  the  general 
pleas  bad,  on  account  of  any  authority  in 
law  shown  by  the  avowries  ? 

"  It    is  certainly  stated  in  the  third 
resolution  in   Crogate's  case,  that  the 
replication  de  injuria  is  bad  where  the 
plea  justifies  under  an  authority  in  law  : 
but  this,  if  taken  in  the  full  extent  of  the 
term  used,  is  quite  inconsistent  with  part 
of  the  first  resolution  which  states,  that 
where  the  plea  justifies  under  the  pro- 
ceedings of  a  court  not  of  record,  the 
general    replication    may  be   used,    or 
where    it  justifies   under  a  capias  and 
warrant  of  sheriff,  all  may  be  traversed 
except  the  capias,  which  cannot,  because 
it  is  matter  of  record,  and  cannot  be 
tried  by  a  jury.     Now  the  proceedings 
of  a  court  not  of  record,  and  the  warrant 
of  a  sheriff  and   seizure    under  it,   are 
surely  as  complete  authorities  in  law  as 
any  authority  disclosed  by  the  present 
avowries;  [see  Bowler  v.  Nicholson,  12 
A.  &  E.  354,  where  Patteson,  J.,  inti- 
mated, that  the  authority  in  law  must  be 
mediately  or  immediately  derived  from 
the  plaintiff,  as,  for  instance,  resulting 
from  the  relation  of  landlord  and  tenant 
or  the  like].     With  respect  to  the  pro- 
ceedings of  a  court  not  of  record  a  quaere 
is  made,  in  Lane  v.  Robinson,  whether 
a  replication  de  injuria  would  be  good ; 
but  the  point  did  not  arise  in  the  case, 
and  the  year  books  referred  to  in  Cro- 
gate's case  warrant  the  conclusion  that 
it  would.     In  Bro.  Ab.  tit.  De  son  tort 
Demesne,  there  are  instances  of  this  rep- 
lication to  a  plea  justifying  by  authority 
of  law.     There  is  also  the  case  referred 
to  in  the  argument  at  the  bar  ofChancey 
V.  Win  and  others,  12  Mod.  lO'J,  in  which 
it  is  laid  down  by  Lord  Holt  that  de  inju- 
ria is  a  good  replication  in  many  cases, 
where  the  plea  justifies  under  an  authori- 
ty in  law.     I  do  not  therefore  think  that 
the  present  pleas  are  objectionable  on 
that  ground. 

"  In  the  last  place — Are  the  pleas  bad 
on  account  of  the  issue  tendered  by  them 
being  multifarious  1 

"  If  this  were  res  integra,  I  should 
have  no  hesitation   in  holding  that  they 


178 


S  M  I  T  H'  S    L  E  A  D  I  NO    CASES. 


were  bad  ;  and  it  cannot,  I  think,  be  de- 
nied that  iJie  present  issues  are  as  full  of 
multiplicity  as  that  in  Crogate's  case, 
and  to  which  the  fourth  resolution  there 
applied.  But  I  am  unable  to  find  any 
instance  in  which  this  general  replica- 
tion has  been  held  bad  on  that  ground.  . 

The  cases  of  Robinson  v. 

Raley,  1  Bnrr.  316,  and  O'Brian  v.  Sax- 
on, 2  B.  &-  C.  908,  are  authorities  to  show 
that  it  cannot  be  objected  to  on  that  ac- 
count, provided  the  several  facts  so  put 
in  issue,  constitute  one  cause  of  defence, 
which,  as  it  seems  to  me,  they  always 
will,  where  the  plea  is  properly  pleaded, 
however  numerous  they  may  be,  since, 
if  they  constitute  more  than  one  cause, 
the  plea  will  be  double.  The  present 
avowries  state  many  facts,  undoubtedly, 
but  they  are  all  necessary  to  the  defence, 
and,  combined  together,  they  show  but 
one  cause  of  defence,  namely,  that  the 
plaintiff's  goods  were  rightfully  taken 
under  a  distress  for  poor  rates  ;  and  if  the 
general  replication  be  held  bad  in  this 
case,  I  am  at  a  loss  to  see  in  what  case 
such  a  replication  can  be  held  good  where 
it  puts  more  than  one  fact  in  issue.  I  am 
compelled,  therefore,  however  reluctant- 
ly, to  come  to  the  conclusion  that  the 
pleas  in  bar  are  good."  See  also  the  judg- 
ment of  L.  C.  J.  Tindal  in  the  court  above, 
3  Tyrwh.  431.  1  C.  &  M.  500,  S.  C. 

In  Pigott  v.  Kemp,  3  Tyrwh.  128,  1 
C.  &  M.  157,  S.  C,  in  trespass  for  assault 
and  battery,  the  plea  alleged  that  J.  E. 
and  S.  B.  were  possessed  of  a  dwelling- 
house  and  close,  and  being  so  possessed, 
the  plaintiff  was  wrongfully  there  mak- 
ing a  noise,  &c.,  and  that  the  defendants, 
as  the  servants  of  J.  E.  and  S.  B.,  and 
by  their  command,  requested  him  to  de- 
part, which  he  refuseil,  whereupon  the 
P  ^c--,  -J  defendants,  as  such  servants, 
L  J  *gently  laid  their  hands  upon 
him,  &c.,  and  because  he  was  armed 
with  pistols,  and  assaulted  them,  they,  as 
such  servants,  necessarily  a  little  laid 
hold  of  him  and  hurt  him.  Quce  sunt 
eadern,  &c.  Replication,  (/e?n;'i?ria  sua 
propria  absque  tali  causa.  Upon  demur- 
rer, it  was  contended  with  great  learn- 
ing by  Mr.  Byles,  on  the  part  of  the  de- 
fendant, that  the  authorities  showed  that 
command  derived  from  a^nother  could 
not  be  traversed  in  this  form  of  replica- 
tion. However,  the  court  expressed  so 
strong  an  opinion  that  the  rule  which 
forbids  the  traverse  of  an  authority  in 
this  form,  related  only  to  authorities  de- 
rived mediately  or  immediately  from  the 


plaintiff  himself,   that  the  learned  coun- 
sel elected  to  amend. 

Upon  the  whole,  the  exceptions  sub- 
ject to  which  the  general  replication  is 
admissible,  may  be  reduced  to  the  follow- 
ing four : — 

1.  When  matter  of  record  is  parcel  of 
the  issue  ;  and  that  for  the  obvious  rea- 
son, that  if  it  were  permitted,  it  would 
lead  to  a  wrong  mode  of  trial. 

2.  When  the  defendant  derives  any 
authority  mediately  or  immediately  from 
the  plaintiff.  [For  instance,  in  trespass 
quare  clausum  fregit,  a  plea  justifying  by 
reason  of  a  clause  in  the  defendant's 
lease,  authorizing  the  landlord  or  incom- 
ing tenant  to  enter  for  certain  purposes, 
is  not  properly  met  by  the  replication  de 
injuria.  Milner  v.  Jordan,  8  Q.  B.  615. 
This  exception  also  includes  the  case  of 
an  authority  given  by  the  law,  but  de- 
rivable from  the  plaintiff's  act.  Thus  in 
trespass,  to  a  plea  justifying  by  reason  of 
a  fraudulent  removal  of  goods  to  avoid  a 
distress  for  rent,  de  injuria,  is  not  a  good 
replication.  Bowler  v.  Nicholson,  12 
A.  &  E.  341.  But  a  right  to  drive  plain- 
tiff's  cattle  pursuant  to  a  custom,  though 
rendered  necessary  to  be  exercised  by 
the  plaintiff's  having  wrongfully  sur- 
charged a  common,  is  not  an  authority 
derived  mediately  or  immediately  from 
the  plaintiff  within  the  rule.  Mortimer 
V.  Moore,  8  Q.  B.  294.] 

3.  When  the  defendant,  in  his  own 
right,  or  as  servant  to  another,  claims 
any  interest:  for  de  injuria,  says  Lord 
Coke,  is  properly  when  the  defendant's 
plea  doth  consist  merely  upon  matter  of 
excuse,  and  of  no  matter  of  interest  what- 
ever. "  By  this,"  says  Mr.  Justice  Parke, 
in  Selby  v.  Bardons,  "I  understand  him 
to  mean,  an  interest  in  the  realty,  (see 
Vivian  v.  Jenkins,  3  A.  &  E.  741,)  or  an 
interest  in,  or  title  to,  chattels,  averred 
in  the  plea,  and  existing  prior  to,  and 
independently  of,  the  act  complained  of, 
which  interest  or  title  would  be  in  issue 
on  the  general  replication ;  and  I  take 
the  principle  of  the  rule  to  be,  that  such 
alleged  interest  or  title  shall  be  specially 
traversed,  and  not  involved  in  a  general 
issue."  [According  to  Edmunds  v.  Pin- 
niger,  7  Q,.  B.  558,  this  rule  does  not  ex- 
tend to  every  case  where  any  interest 
whatever  in  land,  even  a  seisin  in  fee  is 
alleged  in  any  one,  and  is  necessary  to 
be  proved.  That  was  an  action  of  tres- 
pass quare  clausum  fregit.  The  defend- 
ant justified  as  constable,  in  the  execu- 
tion of  a  warrant  granted  by  magistrates 


CROGATES     CASE 


179 


to  restore  possession  to  a  landlord  under 
the  Small  Tenements'  Act,  1  &  2  Vict. 
0.74.  The  plea  averred  a  seisin  in  fee 
in  the  landlord,  the  tenancy  and  its  ex- 
piration, an  application  to  mag-istrates 
under  the  Act,  the  warrant  and  its  exe- 
cution. It  did  not  aver  any  authority 
from  the  landlord.  Replication  de  in- 
juria. The  court  held,  that  even  assum- 
ing the  seisin  in  fee  of  the  landlord  to  be 
a  material  averment,  and  put  in  issue  by 
tiie  replication  de  injuria,  the  replication 
was  yet  correct,  no  interest  in  land  be- 
ing averred  in  the  defendant,  or  those 
under  whom  he  justified.] 

4.  Where  the  plea  is  not  in  excuse  of 
the  injury  contained  in  the  declaration  ; 
as,  for  instance,  if  it  were  a  plea  of  re- 
lease, or  of  accord  and  satisfaction,  or  in 
denial.  See  Crisp  v.  Griffiths,  comment- 
ed on  in  the  latter  part  of  this  note,  Whit- 
taker  V.  Mason,  and  the  principal  case. 
[See  Mortimer  v.  Moore,  8  Q.  B.  294. 
In  trespass  for  seizing  cattle,  a  plea  of  a 
custom  to  drive  the  cattle  on  a  certain 
common  to  a  pound,  for  the  purpose  of 
seizing  estrays,  and  ascertaining  sur- 
charges, was  considered  in  excuse,  and 
the  replication  de  injuria,  correct.  Also 
in  Price  v.  Woodhouse,  16  M.  &  W.  1, 
de  injuria  to  a  plea  justifying  under  a 
heriot  custom  was  held  good.] 

Hitherto,  our  observations  on  this  tra- 
verse have  been  confined  to  its  applica- 
bility in  actions  of  tort.  But  the  rules  of 
court  made  in  Hilary  Term,  1834,  under 
the  power  given  to  the  judges  by  st.  3  & 
4  W.  4,  c.  42,  have  very  much  increased 
the  importance  of  de  injuria,  by  render- 
ing it  often  desirable  to  apply  it  to  actions 
of  contract.  Before  the  above-mentioned 
rules,  there  were  seldom  any  special 
pleas  in  actions  upon  contract,  on  ac- 
count of  the  comprehensive  nature  of  the 
general  issues  non  assumpsit  and  nil 
debet.  As  soon,  however,  as  the  extent 
of  general  issues  were  confined,  and  spe- 
cial pleas  began  to  be  of  every  day  oc- 
currence in  assumpsit,  it  became  desira- 
ble, that  the  plaintiff,  who  has  but  one 
replication,  should  be  enabled  to  put  in 
issue  several  of  the  numerous  allegations 
which  the  special  pleas  were  found  to 
contain;  otherwise  he  would  have  la- 
boured under  the  hardship  of  being  fre- 
quently compelled  to  admit  the  greater 
part  of  an  entirely  false  story.  It  be- 
came therefore,  important  to  ascertain 
whether  de  injuria  could  not  be  replied 
in  cases  of  this  description,  and  the  ques- 
tion of  Its  applicability  frequently  came 


before  the  courts.  Thus,  in  Crisp  v. 
Griffiths,  3  Dowl.  752,  5  Tyrwh.  619,  2 
C.  M.  &,  R.  159,  S.  C,  to  debt  on  a  pro- 
missory note  for  12Z.  by  the  payee  against 
the  maker,  the  defendant  pleaded  that, 
after  the  making  of  the  notO;  the  plain- 
tiff drew  a  bill  for  25Z.  on  the  defendant, 
who  accepted  it,  and  the  plaintiff  took  it 
on  account  of  the  promissory  note,  and 
afterwards  indorsed  it  to  a  third  person, 
who  was  still  entitled  to  sue  thereon. 
Replication,  de  injuria,  and  demurrer. 
The  court  seemed  strongly  of  opinion, 
that  the  plea  and  replication  vrere  both 
bad,  and  offered  the  parties  leave  to 
amend,  which  was  accepted  ;  the  Lord 
Chief  Baron  remarking  on  this  case,  in 
Isaac  V.  Farrar,  1  M.  &  W.  68,  puts  tJje 
opinion  of  the  court  as  to  the  badness  of 
the  replication,  on  the  ground,  that  the 
plea  was  not  in  excuse  for  the  breach  of 
promise,  but  of  satisfaction  for  it.  Noel 
V.  Rich,  4  Dowl.  228,  5  Tyrwh.  632,  2 
C.  M.  &  R.  365,  S.  C,  was  assumpsit  on 
a  bill  by  the  indorsee  against  the  drawer, 
who  was  stated  to  have  indorsed  to  New- 
ton, who  indorsed  to  Lewis,  who  indorsed 
to  plaintiff.  Plea,  that  the  defendant's 
indorsement  was  in  blank,  that  the  de- 
fendant delivered  the  bill,  not  to  Newton, 
but  to  Lewis  Levy,  to  be  *dis-  r  .^^^  -, 
counted  for  the  defendant's  own  '-  -' 
benefit ;  that  Lewis  Levy,  in  violation  of 
good  faith,  gave  it  to  Lawrence  Levy,  on 
other  terms  and  without  discounting  it; 
and  that  Newton,  Lewis,  and  the  plain- 
tiff, before  and  at  the  times  when  it  was 
respectively  indorsed  to  them,  had  notice 
of  the  premises;  replication,  de  injuria. 
The  court  held  the  plea  bad,  for  not 
averring  that  the  defendant  never  re- 
ceived any  consideration  for  the  bill. 
They  also  held  the  replication  good  in 
substance,  but  said,  that  whether  it  was 
right  in  point  of  form,  was  a  different 
question.  However,  in  Griffin  v.  Yates, 
2  Bing.  N.  C<  579,  4  Dowl.  647,  an 
opinion  was  expressed  by  the  Court  of 
Common  Pleas  on  the  point  of  form.  The 
declaration,  which  was  in  assumpsit, 
stated  that  W.  Lambert  drew  on  the  de- 
fendant, who  accepted,  and  that  W.  L. 
then  indorsed  to  plaintiff,  who  now  sued 
the  defendant  as  acceptor.  Plea,  that 
the  defendant  accepted  for  the  accommo- 
dation of  the  said  W.  Lambert ;  that  no 
consideration  was  ever  given  for  the  ac- 
ceptance ;  and  that  W.  Lambert  in- 
dorsed it,  after  it  became  due,  for  the 
accommodation  of  the  plaintiff,  and 
without  consideration   for   his    indorse- 


180 


SMITHS     LEADING    CASES. 


ment.  Replication,  that  the  defendanl  did 
not  accept  the  said  bill  for  the  accommo- 
dation of  W.  Lambert,  and  without  any 
consideration  being  given  for  the  accept- 
ance; and  that  W.  Lambert  did  not  in- 
dorse it,  after  it  became  due,  for  the 
plaintiff's  accommodation,  without  any 
consideration  for  his  indorsement.  De- 
murrer, assigning  special  cause,  viz, 
duplicity  and  multifariousness.  After 
argument,  curia  advisari  vult.  On  an- 
other day,  Tindal,  C.  J.,  after  stating  the 
pleadings,  said,  "  We  thought,  at  the 
time  of  the  argument,  that  there  might 
be  some  way  of  putting  in  issue  by  the 
replication  all  the  facts  alleged  in  the 
plea,  and  we  now  find  that  this  has  been 
decided  by  the  Court  of  Exchequer.  But 
as  it  has  been  hitherto  doubted,  whether 
this  could  properly  be  done,  under  the 
new  rules,  by  a  replication  of  de  injuria, 
the  plaintiff  may  have  leave  to  amend." 

Stephen,  Serj.  The  result  is,  that  de 
injuria  maybe  replied  in  assumpsit.  [As 
to  debt,  see  Cowper  v.  Garbett,  13  M.  &, 
W.  33] 

Tindal,  C.  J.  It  may,  where  the  plea 
consists  of  matter  of  excuse. 

Bosanquet,  J.  That  is,  subject  to  the 
same  rules  as  in  Crogate's  case. 

This  last  observation  of  Mr.  J.  Bosan- 
quet is  exemplified  by  the  case  of  Solly 
V.  JXeish,  4  Dowl.  248,  4  Tyr.  625,  2  C. 
M.  &  R.  355.  The  declaration  was  for 
money  had  and  received.  Plea,  That 
the  money  was  the  proceeds  of  goods 
consigned  to  the  defendant  for  sale  by 
p.  and  C,  as  their  own  goods  and  chat- 
tels, v^ith  the  knowledge  and  consent  of 
plaintiff,  (but  which  were  in  fact  the 
goods  and  chattels  of  P.  and  C,  and  of 
the  plaintiff,  jointly,)  on  the  terms  of  the 
said  goods  and  chattels  being  a  security 
for  any  money  the  defendant  might  ad- 
vance to  Messrs.  P.  and  C,  with  a  power 
of  sale;  and  that  the  defendant,  believ- 
ing the  goods  to  belong  to  P.  and  C,  and 
not  knowing  the  plaintiff  to  be  interested 
therein,  advanced  6,000Z.  on  the  security 
of  the  goods,  to  P.  and  C. ;  and  after- 
wards sold  them,  in  pursuance  of  the 
power  of  sale;  and  received  the  money 
mentioned  in  the  declaration  for  them  ; 
against  which,  the  defendant  averred,  he 
was  willing  to  set  off  the  money  still  due 
to  him  on  account  of  advances,  which 
exceeded  the  money  mentioned  in  the 
declaration.  Replication,  de  injuria,  wiih 
a  new  assignment.  Demurrer.  The 
court  thought  the  replication  bad,  be- 
cause the  plea  did  not  contain  matter  of 
excuse,  but  facta  amounting  to  an  argu- 


mentative denial  of  the  promise;  so  that 
the  replication,  which  assumed  that  a 
breech  of  promise  had  taken  place,  but 
stated  it  to  have  taken  place  without  the 
cause  alleged  by  the  defendant,  was  not  a 
traverse  of  the  plea,  which  stated  no  cause 
of  the  breach,  but  denied  the  promise, 
and  of  course  the  breach,"altogether.  The 
replication,  therefore,  neither  traversed 
the  plea  nor  confessed  it.  "Secondly," 
said  Lord  Abinger,  delivering  the  judg- 
ment of  the  court,  "  it  would  be  bad  if 
the  principles  of  pleading  in  trespass 
as  contained  in  Crogate's  case,  and 
other  authorities,  are  applied  to  an 
action  of  assumpsit:  for  the  defendant 
claims  an  interest  in  the  money,  and 
he  claims  a  right  to  retain  it  by  and  in 
consequence  of  an  authority  given  by 
the  plaintiff,  in  either  of  which  cases  the 
general  replication  is  not  allowed."  la 
Jones  v.  Senior,  4  M.  &  W.  123,  the  re- 
plication de  injuria  was  held  bad,  where 
the  plea  was  not  by  way  of  excuse,  but 
of  discharge.  [Hortley  v.  Manton,  5  Q,. 
B.  247 ;  Barnes  v.  Price,  1  C.  B.  214, 
ace.  And  where  the  plea  is  one  of  set- 
off, or  in  the  nature  of  set-off,  the  repli- 
cation is  equally  inadmissible  as  where 
the  plea  is  one  of  discharge  by  satisfac- 
tion or  release.  Cleworth  v.  Pickford, 
7  M.  &,  W.  314;  Purchell  v.  Salter  (in 
error),  1  Q.  B.  197.]  In  VVhittaker  v. 
Mason,  2  Bingh.  N.  C.  359,  a  replication 
de  injuria  to  a  plea  to  a  *declara-  r  ^^g  -, 
tion  in  assumpsit,  was  held  bad,  ^  J 
because  the  plea  was  not  in  excuse  for 
not  performing  the  contract  stated  in  the 
declaration,  hut  amounted  to  a  denial 
thereof.  S.  P.  El  well  v,  G.  J.  Railway, 
5  M.  &  VV.  669;  [Cleworth  v.  Pickford, 

7  M.  &  W.  314  ;  see  Schild  v.  Kilpin, 

8  M.  &  VV.  672,  where  the  plea  showed 
that  a  third  person  was  the  holder  of  the 
bill  sued  on;  Pelley  v.  Rose,  12  M.  & 
VV.  435;  Fisher  v.  Wood,  1  Dowl.  & 
L.  95,  stated  post  59  c]  Parker  v. 
Riley,  3  Mee.  &.  Welsh.  230,  6  Dowl. 
379;  in  that  case  the  court  hinted  that 
de  injuria  would  probably  be  inadmissi- 
ble, where  the  plea  showed  the  contract 
to  be  void  ab  initio  for  illegality.  Vide 
tamen  Curtis  v.  M.  of  Headlord,  6  Dowl. 
502,  [in  which  Coleridge,  J.,  held  de  in- 
juria to  be  a  good  replication  to  a  plea 
of  gaming:  a  decision  now  confirmed  by 
Humphreys  v.  O'Connell,  7  M.  &  VV. 
370;  Scott  v.  Chappelow,  4  Man.  &.  Gr. 
336,  5  Sc.  N.  R.  148;  Cowper  v.  Gar- 
belt,  13  M.  &  W.  33,  which  establish 
that  de  injuria  maybe  replied  to  a  plea 
of  illegality,  see  post  59  b.]     The  case 


crogate's   case. 


181 


in  the  Exchequer  alluded  to  by  Tindal, 
C.  J.,  in  which  de  injuria  was  decided  to 
be  a  good  replication  in  assumpsit,  was 
Isaac  V.  Farrar,  since  reported,  1  M.  «fe 
W.  65.  Assumpsit  on  a  note  indorsed 
by  payee  to  R.  H.,  and  by  him  to  plain- 
tift'.  Plea,  that,  before  the  making,  an 
advertisement  was  inserted  in  tlie  news- 
papers, offering  to  lend  money  to  persons 
of  responsibility,  in  consequence  of  which 
the  defendant  called  on  advertiser,  who 
fraudulently  procured  from  him  the  note 
in  question,  under  pretence  of  getting  it 
discounted  for  him ;  that  there  never  was 
any  consideration  between  any  of  the 
parties,  and  that  they  were  all  privy  to 
the  fraud.  Replication,  de  injuria.  De- 
murrer, and  the  replication  was  held 
good.  "  This  form,"  said  the  Lord  Chief 
pt-q  -]  *Baron,  delivering  the  judgment 
'■  -I  of  the  court,  "  though  most  com- 
monly used  in  actions  of  trespass,  or  tres- 
pass on  the  case  for  an  injury,  is  not  in- 
appropriate to  an  action  of  trespass  on 
the  case  for  a  breach  of  promise,  where 
the  plea  admits  a  breach,  and  contains 
only  matter  of  excuse  for  committing 
that  breach.  The  defendant's  breach  of 
promise  may  be  considered  as  a  wrong 
done,  and  the  matter  included  under  the 
general  traverse  absque  tali  causa,  and 
thereby  denied,  as  a  matter  of  excuse 
alleged  for  the  breach."  Accord.  Wat- 
son v.  Wilks,  5  A.  &  E.  247,  where  a 
failure  of  consideration  averred  in  the 
plea  was  held  to  be  well  answered  by  de 
injuria.  [In  actions  by  indorsees  against 
acceptors  of  bills  of  exchange,  or  makers 
of  promissory  notes,  the  replication  de 
injuria  has  been  held  sufficient  in  answer 
to  pleas,  that  the  bill  had  been  presented 
for  acceptance,  dishonoured  and  protest- 
ed, that  plaintiff  took  the  bill  with  notice 
of  that  fact,  and  that  the  defendant  had 
not  notice  of  non-acceptance,  Whitehead 
V.  Walker,  9  M.  &,  W.  5U6 ;  that  the 
bill  was  accepted  for  the  accommodation 
of  the  drawer  to  be  deposited  with  R.  as 
a  collateral  security  for  a  debt  due  from 
the  drawer,  that  the  drawer  before  ma- 
turity paid  R.  part  of  the  debt,  and  ten- 
dered the  rest  which  R.  refused  to  accept, 
and  that  R.  afterwards  indorsed  the  bill 
to  the  plaintiff  in  order  that  he  conspir- 
ing and  colluding  with  R.  might  recover 
of  the  defendant  as  trustee  for  R.,  Her- 
bert V.  Sayer,  o  Q.  B.  965 ;  that  the  note 
was  given  as  a  collateral  security  for 
payment  of  a  bill  of  exchange  of  the 
same  amount,  subject  to  an  agreement 
with  the  payee,  that  the  note  should  not 


be  negotiated,  and  that  the  defendant 
had  paid  tlie  holder  of  the  bill  of  ex- 
change, of  which  the  plaintiff  had  notice 
at  the  time  of  the  indorsement.  Gibbons 
V.  Mottram,  7  Scott,  .535,  1  Dowl.  &  L. 
810,  S.  C.  See  also  Basan  v.  Arnold, 
6  M.  &  W.  559,  where  the  pleadings 
were  very  similar  to  those  in  Is.iac  v. 
Farrer.]  Reynolds  v.  Blackburne,  6 
Dowl.  21,  where  the  plea  was  bad  for 
duplicity,  but  both  the  defences  being  by 
way  of  excuse,  it  was  held  to  be  pro- 
perly answered  by  de  injuria.  See 
Hemingway  v.  Hamilton,  4  M.  &,  W. 
117. 

[The  replication  de  injuria  may  be  em- 
ployed in  debt  on  simple  contract.  Pur- 
chell  v.  Salter,  1  Q.  B.  197;  Cowper  v. 
Garbett,  13  JVIee.  &  W.  33.  And  it  has 
been  employed  without  objection  in  ac- 
tions of  covenant,  where  the  pleas  con- 
sisted of  matter  of  excuse.  It  seems 
also  to  be  the  better  opinion  that  it  is  in 
the  option  of  the  plaintiff,  where  de  in- 
juria is  appropriate,  either  to  employ  that 
form  of  traverse,  or  to  traverse  the  ma- 
terial facts  which  would  be  put  in  issue 
by  de  injuria,  in  the  terms  in  wliich  they 
are  alleged.  Garten  v.  Robinson,  2 
Dowl.  N.  S.  41.  But  *in  such  p-gi-] 
cases  the  replication  de  injuria  is  '-  -' 
obviously  preferable,  as  its  use  may  save 
the  pleader  from  special  demurrers  on 
the  ground  of  the  traverse  being  too 
large,  too  narrow,  in  the  conjunctive,  of 
some  immaterial  averment,  negative 
pregnant,  or  what  not;  see  Flight  v. ■ 
Cooke,  1  Dowl.  &  L.  714.  It  is  hardly 
necessary  to  observe,  that  a  traverse  in 
general  terms,  as  that  the  averments  in 
a  plea  "  are  not  true,"  or  the  like,  is  im- 
proper, if  there  be  any  single  averment 
in  the  plea  the  truth  or  falsehood  of 
which  is  not  material.  Mitchell  v. 
Cragg,  10  M.  &  W.  367. 

The  replication  de  injuria  may  be 
pleaded  in  an  action  ex  contractu  to  a 
plea  of  fraud  or  of  illegality  of  the  con- 
tract, whether  the  plea  is  pleaded  in  an 
action  at  suit  of  the  original  contractor, 
or  of  any  person  claiming  under  him,  as 
for  instance,  an  indorsee,  Humphreys  v. 
O'Connell,  7  Alee.  &  W.  370 ;  Scott  v. 
Chappelow,  4  Man.  &  Gr.  536,  5  Sc.  N. 
R.  148,  where  the  Court  of  Couunon 
Pleas  laid  down,  as  a  general  rule,  that, 
in  all  cases  where  the  contract  is  avoided 
by  matter  of  law,  the  replication  de  in- 
juria is  proper,  Cowper  v.  Garbett,  13  M. 
&.  W.  33  ;  Lansdale  v.  Clarke,  1  Exch. 
76.     In  Cowper  v.  Garbett  the  plea  was 


I 


182 


smith's   leading   cases. 


one  of  fraud  to  a  declaration  in  debt  on 
simple  contract.  In  the  course  of  the 
judgment,  Pollock,  C.  B.,  observed :  "  It 
may  be  that,  where  the  fraud  or  illegality 
is  between  the  parties  to  the  action,  tlie 
case  may  not  fall  within  the  principle 
on  which  Crogate's  Case  is  presumed  to 
be  founded,  which  is,  that  the  plaintiff 
may  include  in  a  general  traverse  mat- 
ters which  do  not  presumably  lie  within 
his  own  cognizance,  and  must  traverse 
separately  those  which  do ;  but  the  case 
is  within  the  express  words  of  the  rule 
laid  down  in  that  case  and  universally 
adopted,  and  not  within  any  of  the  ex- 
ceptions, and  we  think  we  ought  to  abide 
by  the  terms  of  it,  and  not  to  introduce 
any  further  distinctions."  This  seems 
to  have  closed  the  door,  and  very  wisely, 
against  speculative  discussions  upon  the 
reason  of  the  rule  in  Crogate's  Case,  and 
to  admit  the  use  of  the  replication  de  in- 
juria in  all  cases  in  whicii  it  is  not  in 
terms  excluded  by  that  rule. 

It  has  been  already  stated  that  the  re- 
plicatian  de  injuria  cannot  properly  be 
pleaded  to  a  plea  denying,  or  amounting 
to  a  denial,  of  a  material  averment  in 
the  declaration.  For  instance,  not  in 
an  action  against  a  railway  company, 
charged  as  common  carriers,  to  a  plea 
setting  forth  facts  which  bring  the  case 
within  a  section  of  the  railway  com- 
pany's act  exempting  them  from  liability, 
Elwell  v.  Grand  Junction  R.  Co.,  5  M.  & 
W.  669,  that  being  in  substance,  a  denial 
that  the  company  are  liable  as  alleged,  in 
the  capacity  of  common  carriers.  Nor,  in 
an  action  by  indorsee  against  the  accep- 
tor of  a  bill,  to  a  plea  stating  that  the 
j-^j-q  -,  ^plaintiff  had  indorsed  away  the 
•-  -I  bill,  and  that  it  was  outstanding  at 
the  commencement  of  the  suit.  Schild 
V.  Kilpin,  8  Mee.  &  W.  673;  the  plea 
being  an  argumentive  denial  of  any 
breach  of  contract,  for  which  the  plain- 
tiff could  sue.  Nor,  in  an  action  against 
the  acceptor  of  a  bill,  alleged  to  be  pay- 
able at  one  month,  to  a  plea  that  it  was 
accepted  in  blank,  with  an  authority  to 
draw  at  two  months.  Fisher  v.  Wood, 
1  Dowl.  N.  S.  55,  that  being  in  effect 
a  denial  of  the  acceptance.  And  in 
Pelley  v.  Rose,  12  M.  &  W.  435,  where, 
to  a  declaration  in  debt  for  Ramsgate 
Harbour  dues,  the  plea  stated  facts  which 
showed  the  vessels  to  be  within  an  ex- 
emption in  32  Geo.  3,  c.  74,  a  replication 
de  injuria  was  held  bad,  tlie  plea  amount- 
ing in  substance  to  a  denial  that  the  dues 
ever   became  payable.      In    Simons   v. 


Lloyd,  2  Dowl.  «fc  L.  981,  to  a  plea  that 
the  action  was  for  work  and  labour  as  an 
attorney,  and  that  no  signed  bill  had  been 
delivered,  the  replication  de  injuria  was 
holden  bad  on  the  ground  that  the  plea 
was  not  in  excuse. 

One  replication  de  injuria  may  be  re- 
plied to  several  pleas.  Price  v.  Wood- 
house,  16  M.  &,  W.  1. 

In  some  cases  it  is  advisable  both  to 
reply  de  injuria  and  new  assign  excess, 
and  that  course  may  in  general  be  fol- 
lowed where  the  declaration  is  large 
enough  to  cover  several  trespasses,  or 
the  continuance  of  one.  Worth  v.  Ter- 
rington,  13  M.  &  W.  781.  Alitor,  where 
it  states  only  one  trespass  on  a  single 
occasion  ;  Polkinhorn  v.  Wright,  8  Q. 
B.  197.] 

The  improper  use  of  de  injuria  was 
once  held  to  be  ground  of  general  de- 
murrer. Fursden  v.  Weeks,  3  Lev.  65; 
Hooker  v.  Nye,  4  Tyrwh.  777.  These 
cases  are  however  overruled  by  Parker 
V.  Riley,  3  Mee.  &,  Welsh.  230 ;  and  it 
is  held  now  to  be  ground  of  special  de- 
murrer only,  S.  P.  Curtis  v.  Marquis 
of  Headfort,  6  Dowl.  502. 

As  to  the  evidence  under  this  replica- 
tion— de  injuria  puts  in  issue  the  whole 
of  the  defence  contained  in  the  plea. 
Phillips  v.  Howgate,  5  B.  &  A.  220 ; 
Barnes  v.  Hunt,  11  East,  451 ;  Lucas  v. 
Nockels,  10  Bing.  157;  [that  is  to  say, 
all  the  averments  in  the  plea  necessary 
to  constitute  a  good  defence  and  not  ex- 
pressly admitted,  as  in  Renno  v.  Bennett, 
3  Q.  B.  768,  where  there  was  a  replica- 
tion de  injuria  absque  residio  causje,  ad- 
milting  part  of  the  plea;  but  not  imma- 
terial averments.  Shearn  v.  Burnard, 
10  Ad.  &  E.  593 ;  Davies  v.  Chapman, 
2  M.  &  G.  597,  3  So.  N.  R.  238  ;  except 
perhaps  where  all  the  averments  are 
equally  immaterial,  by  reason  of  the  plea 
being  substantially  insufficient,  even 
supposing  all  the  facts  averred  therein 
were  found  for  the  defendant,  in  which 
case  it  would  seem  that  all  the  facts 
must  be  proved  strictly  as  averred.  Al- 
so, it  seems  that  in  general,  to  sustain 
the  issue  raised  *by  that  replica-  p^qj-i 
tion,  the  defendant  must  prove  so  '-  ^ 
much  of  his  plea  as  furnishes  a  defence 
to  the  whole  of  the  causeof  action  plead- 
ed to ;  in  a  word,  that  the  issue  is  not 
divisible;  for  instance,  action  on  a  bill 
of  exchange,  plea  that  the  bill  was  ac- 
cepted by  a  co-partner  of  the  defen- 
dant without  authority,  for  moneys 
due  from  the  firm  before  the  defendant 


crogate's   case. 


183 


became  a  member,  replication  de  inju- 
ria;  on  proof  that  any  part  of  the  money 
was  a  debt  of  tlie  firm  after  the  defen- 
dant joined,  the  plaintiff  is  entitled  to 
the  verdict.  Wilson  v.  Lewis,  2  M.  & 
G.  197,  2  So.  N.  R.  115.]  But  if  the 
plea  state  some  authority  in  law,  which 
would  prima  facie  be  a  justification  of 
the  act  complained  of,  the  plaintiff  will 
not  be  allowed  under  de  injuria  to  show 
an  abuse  of  that  authority  such  as  would, 
according  to  the  doctrine  laid  down  in 
Six  Carpenters'  case,  convert  the  defen- 
dant into  a  tort-feasor  ab  initio.  Lam- 
bert V.  Hodson,  1  Bingh,  317;  Price  v. 
Peek,  1  Bingh.  N.  C.  387.  See  Okes 
v.  Wood,  3  Slee.  &  W.  150.  [Woods 
v.  Durrant,  16  M.  &.  W.  149.]  The 
reason  of  which  is,  that  the  defendant 
comes  to  prove  the  truth  of  the  justifica- 
tion stated  in  his  plea,  and  would  be  ta- 
ken by  surprise,  were  the  plaintiff  al- 
lowed to  make  a  new  case  at  Nisi  Prius 
by  a  species  of  confession  and  avoidance 
of  it.  And  in  analogy  to  this,  it  was 
held  in  Okes  v.  Wood,  2  Mee.  &  Wels- 
by,  792,  that  the  defendant's  motive  in 
committing  an  assault  which  he  had  justi- 
fied in  order  to  remove  a  riotous  person, 
could  not  be  inquired  into  under  de  in- 
juria, notwithstanding  Lucas  v.  Nockells, 
10  Bing.  1.57. 

But  if  the  defendant  state  in  his  plea 
some  fact  on  the  existence  or  non-exist- 
ence of  which  the  question  whether  he 
be  a  trespasser  ab  initio  or  no  depends, 
there  it  will  be  sufficient  to  reply  de 
injuria,  as  where  in  trespass  for  breaking, 
entering,  assaulting,  and  imprisoning, 
the  defendants  justified  [the  assault  and 
imprisonment]  under  a  ca.  sa.,  "  the  outer 
door  being  open,^'  tJie  plaintiff  was  al- 
lowed under  de  injuria  to  show  that  it 
was  shut,  so  as  to  render  them  trespas- 
sers ab  initio.  Kerby  v.  Denbey,  1  Mee. 
&  W.  336.  [See,  as  to  this  case,  the 
note  to  Semayne's  case,  ante  46  b.] 

There  is  a  point  of  very  frequent  oc- 
currence, to  which,  though  perhaps  not 
immediately  connected  with  the  main 
subject  of  this  note,  I  will  here  advert, 
inasmuch  as  it  mostly  arises  in  cases  in 
which  de  injuria  has  been  adopted  as  a 
replication.  It  often  happens,  that  a  de- 
fendant pleads  not  guilty  to  the  whole 
of  a  declaration,  and  then,  singling  out 
certain  parts  of  it  which  he  thinks  he  is 
able  to  justify,  pleads,  as  to  those,  a  spe- 
cial plea  stating  his  justification.  In  an- 
swering such  plea,  it  is  necessary  for  the 
plaintiff  to  consider  whether  the  special 


plea  cover  the  whole  of  the  substantial 
*injury  complained  of  in  the  de-  rf^Qp-i 
claration,  omitting  only  matter  of  ■-        -' 
aggravation ;  for  then,  if  he  rely  upon  the 
excess,  he  ought  to  new  assign  it,  instead 
of  merely  joining  issue  on  not  guilty, 
and  replying  de  injuria  to  the  special 
plea.     For  it  has  been  held,  that  in  such 
a  case,  if  the  defendant  prove  his  special 
plea,  the  plaintiff  will  not  be  at  liberty 
to  give  the  excess  in  evidence  under  the 
issue  joined  on  the  plea  of  not  guilty.  In 
Monprivatt  v.  Smithy  2  Camp.  175,  to 
trespass   for  breaking  and   entering  a 
house,  staying  therein  three  weeks,  and 
carrying    away   goods,   the   defendants 
pleaded,  1st.  Not  guilty;   2nd.    As   to 
breaking,    and    entering,   and    staying 
twenty-four  hours  parcel  of  the  three 
weeks,  and  also  as  to  carrying  away  the 
goods,  a  justification  under  a  fieri  facias. 
Replication  to  the  last  plea,  admitting 
the  writ,  de  injuria  sua  propria  absque 
residuo  causes.     The  defendants  proved 
the  justification,  but  it  appeared  that  they 
stayed  in  the  house  more  than  twenty- 
four  hours.     Garrow  and  Wigly,  for  the 
plaintiff,  submitted  that  the  excess  stood 
merely  on  the  plea  of  not  guilty,  and  that 
the  plaintiff  was  entitled  to  a  verdict  in 
respect  of  it.     But  Lord  Ellenborough 
ruled,  that,  if  the  plaintiff  intend-  r  ^gQ  -i 
ed    to  *rely  on    that  excess,  he  ■-         -■ 
should  have  done  so  by  a  new  assign- 
ment.    See  Okes  v.  Wood,  3  Mee.  & 
Welsh.    150;    Atkinson   v.    Warne,    5 
Tyrw.  481 ;  Penn  v.  Ward,5Tyrw.  980. 
In  a  learned  note  to  this  case  the  re- 
porter cites  Taylor  v.  Cole,  3  T.  R.  292  ; 
1  H.  Bl.  555;  Dye  v.  Leatherdale,  3 
Wils.  20  ;  Fisherwood  v.  Cannon,  3  T. 
R.    297;  Gales    v.    Bayley,   2  Wilson, 
313  ;  and  deduces  from  them,  as  a  gen- 
eral principle,  that  "  where  the  defend- 
ant answers  what  may  reasonably   be 
considered  the  gist  of  the  trespass  de- 
scribed in  the  declaration,  it  will  be  pre- 
sumed, that  the  action  is  carried  on  only 
for  that  which  the  defendant  has  thus 
attempted  to  justify,  unless  the  plaintiff 
intimates  by  a  new  assignment,  that  the 
defendant  has  overlooked  a  part  of  the 
grievances  he  complains  of,  or  has  al- 
together misapprehended  his  meaning." 
But   if  there   be  several  trespasses  al- 
leged in  one  and  the  same  count  in  the 
declaration,  and  the  defendant  plead  not 
guilty  to  some,  and  specially  to  others, 
and  at  the  trial  prove  his  special  plea  ; 
still,  if  the  plaintiff  prove  the  several  dis- 
tinct acts  of  trespass  stated  in  the  decla- 


184 


SMITHS    LEADING     CASES. 


ration,  he  must  have  a  verdict  for  as 
much  as  is  not  covered  by  the  special 
plea.  Stammers  v.  Yearsley,  10  Bing. 
37 ;  Bush  v.  Parker,  1  Bing.  N.  C.  T.i'i  ; 
Phillips  v.  Howgate,  5  B.  &  A.  220.  The 
difficulty  in  these  cases  is  in  deciding 
whether  the  matter  excluded  from  the 
plea  of  justification  forms  a  distinct 
wrong,  or  is  only  in  aggravation  of  what 
the  special  plea  professes  to  jpstify.  In 
Bush  v.  Parker,  the  action  was  in  tres- 
pass for  assaulting  the  plaintiff,  seizing, 
pulling,  and  dragging  him,  forcing  him 
into  a  pond,  and  there  imprisoning  him. 
— Pleas:  1.  Not  guilty ;  2.  As  to  the 
assaulting  and  seizing,  and  a  little  pull- 
ing and  dragging  the  plaintiff,  a  justifi- 
cation in  defence  of  possession.  The  jury 
having  found  the  defendants  guilty  on 
the  first  issue,  and  a  verdict  for  them  on 
the  second,  it  was  moved  to  enter  judg- 
ment for  them  on  the  whole  record,  but 
the  Court  of  Common  Pleas  refused  :  "I 
agree,"  said  Tindal,  C.  J.,  "in  the  rule 
of  law,  that  where,  in  trespass,  the  de- 
fendant pleads  a  justification  going  to 
the  gist  of  the  action,  it  is  not  necessary 
to  include  that  which  is  mere  matter  of 
aggravation;  and  this  brings  us  to  the 
application  of  the  rule,  and  to  the  inquiry 
whether  it  will  serve  the  defendants  or 
not;  and  we  have  only  to  look  at  the 
pleadings  here,  and  to  apply  our  com- 
mon sense  to  the  allegation,  that  the  de- 
fendants dragged  the  plaintiff  through 
the  pond,  to  see  that  it  is  a  distinct  and 
substantive  trespass,  and  not  part  of  the 
assault  of  which  tlie  plaintiff  first  com- 
plains." Lord  Loughborough,  in  Taylor 
V.  Cole,  uses  some  language  cited  by  the 
Chief  Justice  in  Bush  v.  Parker,  which 
may  prove  useful  in  distinguishing  be- 
tween statements  of  aggravation  and 
statements  of  several  trespasses,  such  as 
that  in  the  latter  case.  The  declaration 
was  for  breaking  and  entering  the  plain- 
tift''s  house,  and  expelling  him.  Plea — 
justifying  the  breaking  and  entering 
only. — "  Undoubtedly,"  said  his  Lord- 
ship, "  to  enter  into  a  house,  and  to  ex- 
pel the  possessor,  may  be  distinct  acts, 
and  they  may  be  also  connected.  But 
where  the  plaintiff  charges  them  as  parts 
of  one  trespass,  as  is  the  case  in  this  de- 
claration ;  and  the  defendant  sets  forth 
a  justification  to  the  principal  act,  the 
entry ;  it  is  just  that  the  plaintiff  should, 
either  by  replication  or  new  assignment, 
state,  that  he  insists  upon  the  expulsion 
as  a  substantive  trespass,  supposing  the 
entry  should  be  lawful.     If  he  does  not, 


it  is  just  to  consider  it  only  as  matter  of 
aggravation."  Tiiere  is  a  class  of  cases 
decided  upon  st.  22  &,  23  Car.  2,  c.  9, 
[repealed  as  to  costs  3  &  4  V.  c.  24], 
certainly  with  no  view  to  the  present 
question,  but  which  yet,  upon  examina- 
tion, seem  to  have  some  bearing  on  it. 
Tlieir  effect  is  thus  staled  by  Mr.  Tidd, 
in  his  Practice,  9th  edit.,  964 :  "  Where 
an  injury  is  done  to  a  personal  chattel, 
it  is  not  within  the  statute ;  or  where  an 
injury  to  a  personal  chattel  is  laid  in  the 
same  declaration  with  an  assault  and 
battery,  or  local  trespass  ;  and  conse- 
quently, in  these  cases,  though  the  da- 
mages be  under  forty  shillings,  the  plain- 
tiff is  entitled  to  full  costs  without  a  cer- 
tificate. But  then  it  must  be  a  substan- 
tive independent  injury  ;  for  where  it  is 
laid  or  proved  merely  in  aggravation  of 
damage,  as  a  mode  or  qualification  of 
the  assault  and  battery  or  local  trespass, 
or  there  is  a  verdict  for  the  defendant 
upon  that  part  of  the  declaration  which 
charges  him  with  injury  to  a  personal 
chattel,  it  is  within  the  statute.  So  where 
a  laceravit*  or  tearing  the  plain-  r  ^g,  -. 
tiff's  clothes,  is  laid  in  the  decla-  ^  -• 
ration,  or  found  by  the  jury,  to  be  merely 
consequential  to,  or  committed  at  the 
same  time,  as,  an  assault  and  battery,  the 
plaintiff,  recovering  less  than  forty  shil- 
lings damages,  is  not  entitled  to  full 
costs  without  a  certificate ;  and  in  a  late 
case  it  was  held  by  the  Court  of  Com- 
mon Pleas,  that  if  the  plaintiff  declare, 
in  one  count,  for  assaulting  him,  and 
beating  his  horse,  on  which  he  was  rid- 
ing, whereby  it  was  injured,  and  the 
jury  give  a  verdict  with  general  dam- 
ages under  forty  shillings,  the  plaintiff 
shall  have  no  more  costs  than  damages." 
In  the  cases  thus  collected  by  Mr.  Tidd, 
it  will  be  observed,  that  the  question,  as 
in  Monprivatt  v.  Smith,  Taylor  v.  Cole, 
and  Burh  v.  Parker,  was,  whether  a  par- 
ticular injury,  stated  in  the  declaration, 
was  part  of  the  gist  of  the  action,  or 
merely  in  aggravation.  And  the  deci- 
sions in  those  cases  may  therefore  be 
found  not  altogether  inapplicable  in  con- 
troversies arising  on  the  point  which  we 
have  just  been  discussing.  [In  Pritchard 
V.  Long,  9  M.  &  W.  666,  Baron  Parke 
expressed  his  opinion,  that  the  taking  of 
goods  laid  in  a  count  for  trespass  to  the 
realty  is  a  substantive  injury. 

In  Woods  V.  Durrant,  16  M.  &  W, 
149,  the  question  was  raised,  "  whether 
the  assuming  to  answer  matter  of  aggra- 
vation which  need  not  have  been  aver- 


crogate's    case.  185 

rod,  and  answering  it  imperfectly,  so  to  sucii  matter.  For,  the  plaintiff  may 
that  the  plea,  though  perfect  as  to  the  recover  in  respect  of  a  cause  of  action 
material  averments  in  the  declaration,  is  imperfectly  alleged  in  the  declaration,  if 
not  complete  in  omnibus,  makes  it  bad  the  imperfection  be  cured  or  supplied  by 
in  substance?"  The  point  vvasnot  decid-  the  plea,  Brooke  v.  Brooke,  1  !Sid.  184; 
ed.  It  seems,  that  the  imperfect  answer  but  not  in  respect  of  a  cause  of  action 
outjht,  in  such  a  case,  to  be  rejected  as  disclosed  by  the  plea  only,  and  not  al- 
surplusage,  there  being  as  yet  no  allega-  leged  as  a  cause  of  action  in  the  declara- 
tion of  the  plaintiff  upon  the  record  call-  tion.  Marsh  v.  Bulteel,  5  B.  &  Aid. 
ing  upon  the  defeudant  for  any  answer  507.] 


In  this  country,  wbere  costs  arc  seldom  large  iu  amount,  and  -where 
amendments  are  readily  allowed,  it  is  important  to  observe  that,  even  where 
the  replication  de  injuria  is  improperly  employed,  the  defect  will  be  cured 
by  verdict.  This  point  was  determined  in  New  York,  in  the  case  of  Lytle 
V.  Lee,  5  John.  112;  and  as  this  decision  agrees  with  the  English  cases 
cited  above,  it  must  be  taken  as  stating  the  law  on  this  subject,  throughout 
the  United  States. 

In  this  case,  however,  the  court  held  that  the  replication  would  have  been 
bad  on  special  demurrer,  as  the  plea  was  one  of  justification,  not  excuse,  and 
alleged  a  complete  right  in  the  defendants,  under  process  regularly  issued 
by  a  court  of  record.  This  doctrine  is  based  upon  the  obvious  distinction, 
that  a  replication  traversing  the  plea  of  the  defendant,  as  assigning  a  cause 
for  an  act  otherwise  wrongful,  cannot  be  properly  employed,  where  the 
defence  is  that  the  act  complained  of  is  right  in  itself;  and  was  again  recog- 
nised in  the  cases  of  Plumb  v.  M'Crea,  12  John.  491 ;  Grriswold  v.  Sedg- 
wick, 1  Wendell,  26 ;  and  Berry  v.  Cahanan,  2  Halsted,  277;  while  in  Coburn 
V.  Hopkins,  4  Wendell,  577,  and  Stickle  v.  Richmond,  1  Hill,  78,  it  was 
held  to  apply,  notwithstanding  Selby  v.  Bardons,  (supra,)  to  a  plea  of  justifi- 
cation, in  which  the  legal  authority  relied  on,  was  a  mere  warrant  from  a 
justice  of  the  peace,  because  the  justification  shown  by  the^plea,  was  equally 
complete,  whether  the  process  had  issned  from  a  court  of  record  or  froin  an 
inferior  source.  As  it  turns,  however,  on  a  question  between  abstract  right, 
and  right  derived  from  circumstances,  it  must  evidently  be  difficult  to  apply 
it  with  precision  in  practice.  In  Collier  v.  Moulton,  7  Johnson,  109,  the 
court  expressed  their  opinion  that,  "  moUiter  manus  imposuit,"  could  not 
be  given  in  evidence,  under  a  replication  de  injuria  to  a  plea  of  son  assault 
demesne ;  since  that  instead  of  traversing  the  plea  would  be  merely  in  con- 
fession and  avoidance.  This  decision  evidently  rests  on  the  same  general 
principle,  that  the  replication  de  injuria  sua  propria  can  never  avail,  except 
as  a  direct  denial  of  some  cause  alleged  as  an  execuse  by  the  defendant.  Of 
course  it  follows  that  it  must  be  equally  inadmissible,  where  the  plea  amounts 
to  a  denial  of  the  breach,  whether  directly  or  by  implication;  Schild  v.  Kil- 
piu,  8  M.  &  W.  675. 

In  Lytle  v.  Lee,  cited  above,  the  C.  J.  threw  out  a  doubt  whether  matter 
of  record,  when  so  averred,  in  connexion  with  matter  of  fact,  as  to  constitute 
but  one  plea,  might  not  be  traversed  in  a  replication  de  injuria;  and  Welch 
J.;  in  delivering  the  opinion  of  the  court  in  the  case  of  Sampson  v.  Henry, 


186  SMITU'S     LEADING     CASES. 

11  Pick.  379,  expressed  the  opinion,  that  tliis  replication  might  be  resorted 
to,  when  the  defendant  pleaded  in  excuse  for  an  assault  and  battery,  that  it 
was  committed  in  defence  of  the  possession  of  a  dwelling-house,  of  which  he 
was  seised,  and  which  the  plaintiff  attempted  to  enter  without  right.  This 
last  opinion  seems  not  to  be  law. 

In  order  that  a  plea  should  be  good,  it  is  necessary  that  it  should  present 
but  a  single  defence,  although  the  facts  which  go  to  make  up  the  point  may 
be  many,  and  it  might  consequently  be  supposed,  that  when  the  plea  is  good, 
and  the  defence  it  contains  single,  a  traverse  of  the  facts  constituting  the 
defence  would  not  be  bad  for  duplicity.  Such,  however,  is  not  in  all 
instances  the  case ;  and  in  Tubbs  v.  Caswell,  8  Wendell,  129,  where  the 
defendant  pleaded  to  an  action  on  a  promissory  note,  that  it  was  made  jointly 
with  another  party  whom  the  plaintiff  had  released,  and  the  plaintiff  in  reply 
traversed  both  the  making  and  release,  the  Court  of  Errors  held  that  the 
plea  was  good,  and  while  containing  two  points,  presented  only  a  single 
defence,  but  that  the  replication,  though  traversing  merely  the  matters  which 
went  to  make  up  that  defence,  was  bad  for  duplicity.  But  it  appears  from 
the  case  of  Griffin  v.  Yates,  cited  above  in  the  note  of  the  English  editor, 
that  when  a  direct  traverse  of  several  points  going  to  make  up  a  single 
defence  in  a  plea,  would  be  bad  for  duplicity;  the  traverse  absque  tali  causa, 
although  putting  the  same  number  of  points  in  issue,  will  be  good  as  far  as 
this  fault  is  concerned,  if  allowable  in  other  repects.  Whether  this  opinion 
be  consistent  with  the  last  resolution  in  Crogate's  case,  that  this  form  of 
replication  is  bad  when  multifarious  in  matter,  it  is  too  late  to  inquire, 
since  it  is  abundantly  supported  by  the  decision  in  Selby  v.  Bardons,  and 
by  many  other  cases.  Hence  arises  the  great  advantage  of  this  mode  of 
replying,  when  a  special  plea  has  been  resorted  to,  since  it  enables  the  plain- 
tiff to  traverse  all  the  facts  contained  in  any  single  point,  instead  of  being 
obliged  to  rest  the  fate  of  his  cause  on  an  issue  joined  on  one  fact  alone. 
This  has  caused  its  application  in  England  to  actions  of  assumpsit ;  and 
as  it  has  been  resorted  to  and  sanctioned  in  actions  nominally  in  case,  but 
really  of  contract,  there  does  not  appear  to  be  any  sufficient  reason  why 
it  should  not  be  employed,  even  in  those  actions  where  both  form  and  sub- 
stance are  of  the  latter  character.  This  opinion  is  supported  by  a  deci- 
sion of  the  Court  of  Queen's  Bench,  sustaining  a  replication  de  injuria 
in  an  action  of  debt;  Purehell  v.  Salter,  1  Q.  B.  197;  and  although  the 
decision  was  reversed  on  another  point  by  the  Exchequer  Chamber,  Ibid. 
209,  it  has  since  been  sustained  as  to  this,  by  the  court  of  Exchequer,  in 
the  case  of  Cowper  v.  Garbett,  13  M.  &  W.  333.  It  has  notwithstanding 
been  held  in  this  country,  that  this  replication  is  only  admissible  where  the 
action  is  founded  in  tort  and  not  in  contract ;  Coffin  v.  Bassett,  2  Pick. 
357. 

The  recent  eases  in  England  appear  to  determine,  that  in  actions  on  bills 
or  notes,  even  where,  from  the  nature  of  the  plea  as  setting  up  matter  in 
avoidance  of  the  contract,  de  injuria,  could  not  be  replied  were  the  suit 
between  the  original  parties  to  the  instrument,  it  will  be  good  in  an  action 
brought  by  the  indorsee,  for  the  law  will  intend  that  the  plaintiff  is  a  bona 
fide  holder  for  value,  and  prima  facie  entitled  to  recover,  notwithstanding 
the  fraud  or  want  of  consideration  which  may  have  existed  in  the  first 


croqate's   case.  187 

instance;  Humphreys  v.  O'Conuel,  7  M.  &  W.  870.     Scott  v.  Chapellon, 
5  Scott,  N.  R.  148.     Gibbons  v.  Mottram,  6  M.  &  G.  691. 

But  where  in  an  action  against  the  acceptor  of  a  bill  of  exchange,  the  plea 
set  forth  that  before  suit  brought,  the  plaintiff  endorsed  the  bill  to  a  third 
person,  to  whom  the  defendant  was  liable  for  its  amount,  a  replication  de 
injuria,  was  held  inadmissible ;  Schild  v.  Kilpin,  8  M.  &  W.  675 ;  and  in 
Gibbons  v.  Mottram,  6  M.  &  G.  691,  it  was  said  that  this  decision  rested 
on  the  ground,  that  the  indorsement  set  up  as  a  defence,  was  to  be  regarded 
as  an  averment  of  an  authority  given  by  the  plaintiff  to  a  third  person,  to 
receive  payment  from  the  defendant,  and  was  therefore  within  the  third 
resolution  in  Crogate's  case.  The  authority  of  the  plea  in  Schild  v.  Kil- 
pin, was  therefore  determined  to  be  inapplicable  to  the  plea  in  Gibbons  v. 
Mattram,  which  consisted  in  an  averment  that  the  bill  had  been  given  as 
collateral  security  for  a  debt,  which  had  been  paid  by  the  defendant  before 
the  indorsement  to  the  plaintiff,  of  which  he  had  notice,  as  the  defence  thus 
set  up,  rested  merely  in  excuse ;  and  contained  no  matter  of  authority  or 
justification. 

In  Oystead  v.  Shed,  12  Mass.  Reps.  506,  the  very  obvious  principle  was 
laid  down,  that  when  the  defendant  justified  under  a  writ  the  entering  upon 
a  house,  which  was  the  trespass  complained  of  in  the  declaration,  the  plain- 
tiff could  not  under  a  replication  admitting  the  writ  and  replying  de  injuria, 
&c.,  absque  residuo  causae,  give  in  evidence  new  matter  to  show  that  the 
defendant  had  broken  open  the  outer  door,  since  that  would  be  to  bring  for- 
ward a  distinct  cause  of  trespass,  which  could  not  be  insisted  on  without  a 
new  assignment.  Substantially  the  same  point  was  held  in  Stickle  v.  Rich- 
mond, already  cited.  But  where  disobedience  of  orders  has  been  pleaded 
by  the  defendant,  as  master  of  a  vessel,  in  excuse  for  assault  and  battery 
committed  by  tying  up  the  plaintiff  and  whipping  him,  the  latter  was  held 
entitled  to  prove  under  a  replication  de  injuria  that  the  whipping  was  immo- 
derate, and  thus  in  effect  disprove  the  cause,  by  showing  that  the  fact  was 
without  the  limits  of  its  operation;  Hannen  v.  Edes,  15  Mass.  341.  The 
distinction  between  this  case,  and  the  one  last  cited  is,  that  in  the  former, 
new  facts  were  insisted  on,  while  in  the  latter,  the  evidence  was  merely  given 
to  prove  excess  in  the  old.  The  same  principles  were  applied  in  the  case  of 
Sampson  v.  Smith,  15  Mass.  365. 

The  two  cases  last  cited,  appear  to  point  out  an  exception  to  the  doctrine 
of  new  assignment,  under  which  it  is  ordinarily  held,  that  when  the  plain- 
tiff relies  upon  an  excess,  he  must  re-assign  it  instead  of  replying  de  inju- 
ria, by  establishing,  that  if  the  excess  take  the  trespass  altogether  out  of 
the  operation  of  the  cause,  it  will  be  admissible  in  evidence  under  the 
general  replication  de  injuria  sua  propria;  Curtis  v.  Carson,  2  New  Hamp- 
shire, 539. 

H. 


188  smith's   leading   oases. 


[- :i:C2  ]  =i=T  H  E    SIX    CARPENTERS'    CASE. 

MICH.— 8  JACOBI  1. 

[REPORTED,  8  COKE,  146  a.] 

If  a  man  abuse  an  authority  given  him  by  the  law  he  becomes  a  trespasser  ab 
initio. — Contra  of  an  authority  given  by  the  party. — The  abuse  is  good  matter 
of  replication. — Mere  nonfeasance  does  not  amount  to  such  abuse  as  makes  a 
man  a  trespasser  ab  initio. 

In  trespass  brought  by  John  Vaux  against  Thomas  Newman,  carpenter, 
and  jBve  other  carpenters,  for  breaking  his  house,  and  for  an  assault  and 
battery,  1  Sept.  7  Jac,  in  London,  in  the  parish  of  St.  Giles  extra  Cripple- 
gate,  in  the  ward  of  Cripplegate,  &c.,  and  upon  the(i)  new  assignment,  the 
plaintiff  assigned  the  trespass  in  a  house  called  the  Queen's  Head.  The 
defendants  to  all  the  trespass  prseter  fractionem  domus  pleaded  not  guilty  ; 
and  as  to  the  breaking  of  the  house,  said,  that  the  said  house,  prxd'  tempore 
quo,  &c.,  et  dill  antea  et  postea,  was  a  common  wine  tavern  of  the  said  John 
Vaux,  with  a  common  sign  at  the  door  of  the  said  house  fixed,  &c.,  by  force 
whereof  the  defendants,  preed'  tempore  quo,  &c.,  viz.  hord  quarta  post  meri- 
diem, into  the  said  house,  the  door  thereof  being  open,  did  enter,  and  did 
there  buy  and  drink  a  quart  of  wine,  and  there  paid  for  the  same,  &c.  The 
plaintiff,  hy  way  of  replication,  did  confess,  that  the  said  house  was  a  com- 
mon(c)  tavern,  and  that  they  entered  into  it,  and  bought  and  drank  a  quart 
of  wine,  and  paid  for  it ;  but  further  said,  that  one  John  Ridding,  servant 
of  the  said  John  Vaux,  at  the  request  of  the  said  defendants,  did  there  then 
deliver  them  another  quart  of  wine,  and  a  pennyworth  of  bread,  amounting 
to  8c?.,  and  then  they  there  did  drink  the  said  wine,  and  eat  the  bread, 
po  -I  and  upon  request  did  refuse  to  pay  for  the  same  :  *upon  which  the 
L  -I  defendants  did  demur  in  law :  and  the  only  point  in  this  case  was, 
if  the  denying  to  pay  for  the  wine,  or  non-payment,  which  is  all  one  (for 
every  non-payment,  upon  request,  is  a  denying  in  law,)  makes  the  entry 
into  the  tavern  tortious.  And  first,  it  was  resolved  when  entry,  autliority 
or{(l"^  Uce7ise  is  given  to  any  one  hy  the  law,  and  he  doth  abuse  it,  he  shall  be 
a  trespasser  ab  initio  :  but  ivhere  an  entry,  authority,  or  license  is  given  by 
thc[e^  p>arty,  and  he  abuses  it,  there  he  must  be  jnmished  for  his  abuse,  but 
shall  not  be  a  tresjKisser  ab  initio.  And  the  reason  of  this  difference  is, 
that  in  the  case  of  a  general  authority  or  license(/)  of  law,  the  law  adjudges 
by  the  subsequent  act,  quo  animo,  or  to  what  intent  he  entered,  for  acta 

(a)  See  6  Mod.  70.  216.     Fitzgib.  86.  185.  (i)  2  Co.  5,  a,  18,  b.     (c)  Kelw.  38,  a. 

(rf)  2  Roll.  561.     Yelv.  96,  97. 

(c)  5  H.  7,  ll,a.     Perk.  sect.  191.     Yclv.  96,  97.     21  E.  4,  19,  b. 
if)  2  Roll.  561.     21  E.  4,  19,  b.  76,  b,  per  Catesby.     Yelv.  96,  97.     Perk.  sect.  191. 
5H.  7  11,  a. 


SIX   carpenters'   case.  189 

extcriora  indicant  interiora  secreta.  Vide  11  H.  4,  75,  b.  But  when  the 
party  gives  an  authority  or  license  himself  to  do  any  thing,  he  cannot,  for 
any  subsequent  cause,  punish  that  which  is  done  by  his  own  authority  or 
license,  and  therefore  the  law  gives  authority  to  enter  into  a  common  inn, 
or  tavern  :  so  to  the  lord  to  distrain ;  to  the  owner  of  the  ground  to  distrain 
damage-feasant ;  to  him  in  reversion  to  see  if  waste  be  done ;  to  the  com- 
moner to  enter  upon  the  land  to  see  his  cattle ;  and  such  like.  Vide  12  E. 
4,  8,  b.  21  E.  4,  19,  b.  5  H.  7,  11,  a.  9  H.  6,  29,  b.  11  H.  4,  75,  b. 
3  H.  7,  15,  b.  28  H.  6,  5,  b.  But  if  he  who  enters  into  the  inn  or  tavern 
doth  a  trespass,  as  if  he(^)  carries  away  any  thing;  or  if  the  lord  who  dis- 
trains for  rent,  or  the  owner  for  damage-feasant,  works  or  kills  the(/A  dis- 
tress ;  or  if  he  who  enters  to  see  waste  breaks  the  house,  or(i)  stays  there  all 
night ;  or  if  the  commoner  cuts  down  a  tree ;  in  these  and  the  like  cases, 
the  law  adjudges  that  he  entered,  for  that  purpose;  and  because  the  act 
which  demonstrates  it  is  a  trespass,  he  shall  be  a  trespasser  ah  initio,  as  it 
appears  in  all  the  said  books.  So  if(_;')  a  purveyor  takes  my  cattle  by  force 
of  a  commission,  for  the  king's  house,  it  is  lawful ;  but  if  he  sells  them  in 
the  market,  now  the  first  taking  is  wrongful;  and  therewith  agrees  18  H. 
6,  19,  b.      Et  sic  de  similihus. 

2.  It  was  resolved  per  totam  curiam,  tJiat(^k^  not  doing  cannot  make  the 
jparti/,  who  has  authority/  or  license  hy  the  law,  a  trespasser  ah  initio,  because 
not  doing  is  no  trespass,  and  therefore  if  the  lessor  distrains  for  his  rent,  and 
thereupon  the  lessee  tenders  him  the  rent  and  arrears,  &c.,  and  requires  his 
beasts  again,  and  he  will  not  deliver  them,  this  not  doing  *cannot  ^^,  -, 
make  him  a  trespasser  ah  initio  ;  and  therewith  agrees  33  H.  6,  L  -^ 
47,  a.  So  if  a  man  takes  cattle  damage-feasant,  and  the  other  oiFer  suffi- 
cient amends,  and  he  refuses  to  re-deliver  them,  now  if  he  sues  a  replevin, 
he  shall  recover(/)  damages  only  for  the  detaining  of  them,  and  not  for  the 
taking,  for  that  was  lawful ;  and  therewith  agrees  F.  N.  B.  69,  g.  temp.  E. 
1.  Replevin,  27.  27  E.  3,  88.  45  E.  3,  9.  So  in  the  case  at  bar,  for  not(m) 
paying  for  the  wine,  the  defendants  shall  not  be  trespassers,  for  the  deny- 
ing to  pay  for  it  is  no  trespass,  and  therefore  they  cannot  be  trespassers  ah 
initio ;  and  therewith  agrees  directly  in  the  point(?i)  12  E.  4,  9,  b.  For 
there  Pigot,  Serjeant,  puts  this  very  case,  if  one  comes  into  a  tavern  to 
drink,  and  when  he  has  drunk  he  goes  away,  and  will  not  pay  the  taverner, 
the  taverner  shall  have  an  action  of  trespass  against  him  for  his  entry.  To 
which  Brian,  Chief  Justice,  said,  the  said  case  which  Pigot  has  put  is  not(o) 
law,^  for  it  is  no  trespass,  but  the  taverner  shall  have  an  action  of  debt :  and 
there  before(p)  Brown  held,  that  if  I  bring  cloth  to  a  tailor,  to  have  a  gown 
made,  if  the  price  be  not  agreed  in  certain  before,  how  much  I  shall  pay  for 
the  making,  he  shall  not  have  an  action  of  debt  against  me ;  which  is  meant 
of  a  general  action  of  debt :  but  the  tailor  in  such  a  case  shall  have(2')  a 
special  action  of  debt ;  scil.  that  A.  did  put  cloth  to  him  to  make  a  gown 

{g)  Perk.  sect.  1 19.     2  E.  4,  5,    Cro.  Car.  196.     Yelv.  96. 
(A)  12  E.  4,  8,  b,     9  Co.  11,  a.     1  And.  6.5.     Cro.  Jac.  148.     Perk.  sect.  191. 
1)2  Roll.  561.     11H.4,  75,  b.     Fitz.  Tresp.  176.     Br.  Tresp.  97.     Br.  Replica.  12. 
(j)  2  Roll.  561.     18H.  6,  9,b.    2  Inst.  546. 
(A-)  Cr.  ('ar.  196.     2  Bulstr.  312.     1  Roll.  Rep.  130. 
■I)  Lit.  Rep.  34.     Dr.  &,  Stud.  lib.  2,  112,  b.     Hctl.  16. 

(m)  1  Roll.  Rep.  60.    2  Bulst.  312.  (n)  1  Sid.  5.     12  E.  4,  9,  a.  b. 

(0)  12  E.  4,  9,  b.  ( p)  12  E.  4,  9,  b.  (5)  1  Sid.  5. 


190  smith's   leading   cases. 

thereof  for  the  said  A.,  and  that  A.  would  pay  him  as  much  for  making, 
and  all  necessaries  thereto,  as  he  should  deserve,  and  that  for  the  making 
thereof,  and  all  necessaries  thereto,  he  deserves  so  much,  for  which  he  brings 
his  action  of  debt :  in  that  case,  the  putting  of  his  cloth  to  the  tailor  to  be 
made  into  a  gown,  is  sufficient  evidence  to  prove  the  said  special  contract, 
for  the  law  implies  it :  and  if  the  tailor  over-values  the  making,  or  the  neces- 
saries to  it,  the  jury  may  mitigate  it,  and  the  plaintiff  shall  recover  so  much 
as  they  shall  find,  and  shall  be  barred  for  the  residue.  But  if  the  tailor 
(as  they  use)  makes  a  bill,  and  he  himself  values  the  making  and  the  neces- 
saries thereof,  he  shall  not  have  an  action  of  debt  for  his  own  value,  and 
declare  of  a  retainer  of  him  to  make  a  gown,  &c.  for  so  much,  unless  it  is 
so  especially  agreed.  But  in  such  case  he  may(r)  detain  the  garment  until 
he  is  paid,  as  the  hostler  may  the  horse.  Vide  Br.  Distress,  70,  and  all 
pr  -,  this  was  resolved  by  the  court.  Vide  the  Book  in  *30  Ass.  pi.  38, 
L  -^  John  Matrever's  case,  it  is  held  by  the  court,  that  if  the  lord,  or 
his  bailiff  comes  to  distrain,  and(s)  before  the  distress  the  tenant  tenders 
the  arrears  upon  the  land,  there  the  distress  taken  for  it  is  tortious.  The 
same  law  for  damage-feasant,  if  before  the  distress  he  tenders  sufficient 
amends ;  and  therewith  agrees  7  E.  8,  8,  b.  in  the  Mr.  of  St.  Mark's  ease, 
and  so  is  the  opinion  of  Hull  to  be  understood  in  13  H.  4,(<)  17,  b.,  which 
opinion  is  not  well  abridged  in  title  Trespass,  180.  Note  reader  this  differ- 
ence, that  tender  ujyon  the{tC\  land  hefore  tJie(v\  distress  mahes  the  distress 
tortioiis ;  tender  after  the  distress,  and  hefore  the  impounding,  makes  the 
detainer,  and  not  the  tahing,  wrongful:  tender  afteriiD\  the  imjMunding 
maJces  neither  the  one  nor  the  other  wrongful ;  for  then  it  comes  too  late,  because 
then  the  cause  is  put  to  the  trial  of  the  law,  to  be  there  determined.  But 
after  the  law  has  determined  it,  and  the  avowant  has  return  irreplevisable, 
yet  if  the  plaintiff  makes  him  a  sufficient  tender,  he  may  have  an  action  of 
Detinue  for  the  detainer  after :  or  he  may,  upon  satisfaction  made  in  court, 
have  a  writ  for  the  re-delivery  of  his  goods  ;  andjtherewith  agree  the  said 
books  in  13  H.  4,  17,  b.  14  H.  4,  4.  Begistr' Judic'  37.  45  E.  3,  9, 
and  all  the  books  before.  Vide  14  Ed.  4,  4,  b. ;  2  H.  6,  12 ;  22  Hen.  6, 
56 ;  Doctor  and  Student,  lib.  2,  cap.  27 ;  Br.  Distress,  72,  and  Pilking- 
ton's  case,  in  the  Fifth  Part  of  my  Reports,  fol.  76,  and  so  all  the  books 
which  prima  facie  seem  to  disagree,  are  upon  full  and  pregnant  reason  well 
reconciled  and  agreed. 

(r)  Hob.  42.  Yelv.  67.  Cro.  Car.  271, 272.  Br.  Distress,  71!  Palm.  223.  Hut.  101. 
22E.  4,  49,  b.  Moor,  877.  5  Ed.  4,2,  b.  1  Roll.  Kep.  44.  2  Roll.  Rep.  439.  2  Roll. 
85.  928.     3  Bulslr.  269.  (s)  Br.  Distr.  37.    Br.  Tender,  &c.  18. 

(0  2  Roll.  561.  See  Anscombe  v.  Sliorc,  1  Camp.  285.  I  Taunt.  261.  Replevin  for 
taking  and  impounding,  pica  a  tender  afier  tbe  taking  and  before  impounding :  held 
good,  for  the  detaining  after  tender  is  a  new  taking.     Evans  v.  Elliott,  5  Ad.  &  Ell.  142. 

(u)  2  Sid.  40.  («)  5  Co.  76,  a.     2  Inst.  107. 

(w?)  2  Roll.  561.  1  Brownl.  173.  2  Inst.  107.  5  Co.  76,  a.  [It  seems  to  have  been 
thought  in  the  case  of  Smith  v.  Goodwin,  4  B.  &  Ad.  415,  that  this  doctrine  does  not  apply 
to  the  case  of  a  distress  for  rent,  but  that  a  tender  of  the  rent  and  charges  after  impound- 
ing would  make  the  subsequent  detainer  tortious.  In  that  case,  however,  there  was  a 
seizure,  an  impounding  upon  the  premises,  then  a  tender  of  the  rent  and  charges,  then  a 
relinquishment  of  the  distress,  and  then  a.  second  seizure.  In  Thomas  v.  Harries,  1  M.  & 
Gr.  695, 1  Sc.  JN.R.  524,Maule,  J.,  thought  that  under  the  11  Geo.  2,  c.  19,  s.  22,  the  right 
of  tender  remained  as  long  as  the  distress  was  on  the  premises  ;  but  the  other  judges  differ- 
ed from  him.  The  doctrine  laid  down  in  the  Six  Carpenters'  Case  is  affirmed  by  Ellis  v. 
Taylor,  8  M.  &  W.  415;  and  Ladd  v.  Thomas,  4  Perr.  &  D.  9  ;  12  Ad.  &  El.  117,  S.  C] 


SIX  carpenters'   case. 


191 


From  this  case,  which  is  one  of  the 
most  celebrated  in  Lord  Coke's  Reports, 
three  points  are  to  be  collected  : 

1.  That  if  a  man  abuse  an  atUhority 
given  to  him  by  the  law,  he  becomes  a 
trespasser  ab  initio. 

2.  That  in  an  action  of  trespass,  if  the 
authority  be  pleaded,  the  subsequent 
abuse  may  be  replied. 

3.  That  a  mere  nonfeasance  does  not 
amount  to  such  an  abuse  as  renders  a 
man  a  trespasser  ab  initio. 

The  first  of  these  points  has  been  fre- 
quently confirmed.  In  Oxley  v.  Watts, 
1  T.  R.  12,  the  plaintiff"  sued  the  defen- 
dant in  trespass  for  taking  a  horse ;  the 
defendant  justified  taking  him  as  an  es- 
tray.  Replication,  that,  after  the  taking 
mentioned  in  the  declaration,  the  defen- 
dant worked  the  horse,  and  so  became  a 
trespasser  ab  initio.  On  motion  in  ar- 
rest of  judgment,  the  court  held  the  re- 
plication good,  and  the  defendant  a 
trespasser  ab  initio.  The  same  point, 
precisely,  was  decided  in  Bagshaw  v. 
Goward,  B.  N.  P.  81;  Cro.  Jac.  147, 
where  it  arose  on  demurrer ;  accord. 
Gargrave  v.  Smith,  Salk.  221 ;  Sir  Ralph 
Bovey's  case,  1  Vent.  217;  Aitkenhead 
V.  Blades,  5  Taunt.  198.  One  conse- 
quence of  this  doctrine  was,  that,  if  a 
party,  entering  lawfully  to  make  a  dis- 
tress, committed  any  subsequent  abuse, 
he  became  a  trespasser  ab  initio.  In  Gar- 
r  *fiflT  gi'^ve  v.*  Smith,  Salk.  221,  and 
L  ^  J  Dye  v.  Leatherdale,  3  Wilson, 
20,  this  was  expressly  decided.  [But,  if 
there  be  a  seizure  of  several  chattels, 
some  of  which  are  by  law  seizable,  and 
some  not,  or  some  of  which  are  subse- 
quently abused,  and  the  rest  not,  the 
seizure  is  or  becomes  illegal,  only  as  to 
the  part  which  it  was  unlawful  to  seize, 
or  which  was  subsequently  abused,  and 
the  seizure  of  the  rest  continues  legal ; 
Dod  V.  Monger,  6  Mod.  215 ;  Harvey  v. 
Pocock,  11  M.  &  W.  740.]  As  it  was 
found  however  that  this  doctrine  [of  tres- 
pass ab  initio]  bore  extremely  hard  on 
landlords;  to  relieve  them,  stat.  11  G. 
2,  c.  19,  s.  19,  provided,  "  That  where 
any  distress  shall  be  made  for  any  rent 
justly  due,  and  any  irregularity  or  un- 
lawful act  shall  be  afterwards  done  by 
the  party  distraining,  or  his  agent,  the 
distress  shall  not  be  deemed  unlawful, 
nor  the  distrainer  a  trespasser  ab  initio ; 
but  the  party  grieved  may  recover  satis- 
faction tor  the  damage  in  a  special  ac- 
r*pR  ■]  tion  of  trespass  or  6n  the  case, 
L  "°"-i  at  the  election  of  the  *plaintifi; 


and,  if  he  recover,  he  he  shall  have  full 
costs."  The  true  construction  of  the  above 
words,  "trespass,  or  the  case,"  is,  that  the 
party  injured  must  bring  trespass  if  the 
injury  be  a  trespass,  and  case,  if  it  be  the 
subject  matter  of  an  action  on  the  case. 
The  natureofthe  irregularity  determines 
the  form  of  action.  Hence,  case  ought  to 
be  brought  for  an  irregularity  in  omit- 
ting to  appraise  the  goods  before  selling 
them,  and  trespass  for  remaining  in  pos- 
session beyond  the  five  days.  Winter- 
bourne  V.  Morgan,  11  East,  395;  see 
Etherton  v.  Popplewell,  9  East,  139. 
[Note  the  diversity  between  such  cases 
and  Miles  v.  Bough,  3  Q.  B.  845,  where 
a  statute  gave  an  option  to  sue  by  action 
of  debt,  or  on  the  case.]  By  17  G.  2,  c. 
38,  s.  8,  where  any  distress  shall  be  made 
for  money  justly  due  for  the  relief  of  the 
poor,  the  party  distraining  shall  not  be 
deemed  a  trespasser,  ab  initio,  on  ac- 
count of  any  act  subsequently  done  by 
him  ;  but  the  party  grieved  may  recover 
satisfaction  for  the  special  damage  in  an 
action  of  trespass  or  on  the  case,  with 
full  costs,  unless  tender  of  amends  is 
made  before  action  brought. 

As  to  the  right  of  a  plaintifl^to  reply 
the  abuse,  where  it  is  such  as  renders 
the  defendant,  who  has  pleaded  the  au- 
thority which  he  has  abused,  a  trespasser 
ab  initio:  that  is  established  by  several 
cases.  In  the  principal  case  it  seems  to 
have  been  assumed  :  for  no  objection  was 
taken  to  the  replication  as  being  a  de- 
parture :  but  Lord  Coke  says,  that  the 
only  point  was,  whether  the  denying  to 
pay  made  the  first  entry  into  the  tavern 
tortious.  In  Gargrave  v.  Smith,  Salk. 
221,  B.  N.  P.  81,  trespass  for  taking 
goods.  Plea,  that  defendant  distrained 
them  damage-feasant.  Replication,  that 
he  afterwards  converted  them  to  his  own 
use.  "  On  demurrer,  it  was  holden  to 
be  no  departure,  but  to  make  good  the 
declaration  :  for  he  that  abuses  a  distress 
is  a  trespasser  ab  initio  ;  and  it  would  be 
of  no  avail  to  the  plaintiff"  to  state  the 
conversion  in  his  declaration,  for  it  is  in 
no  ways  necessary  to  his  action,  and,  if 
alleged,  need  not  be  answered.  It  would 
be  out  of  time  to  state  it  in  the  declara- 
tion, but  it  must  come  in  in  the  replica- 
tion." [Ace.  Roberts  v.  Taylor,  3  Dovvl. 
«Si  L.  1.]  See  too  Sir  R.  Bovey's  case, 
1  Vent.  217,  where  Hale,  C.  J.,  said, 
that  to  state  it  in  the  declaration  would 
be  "  like  leaping  before  you  came  to  the 
stile  ;"  and  see  Taylor  v.  Cole,  3  T.  R. 
292,     And  the  only  proper  course  is  to 


192  smith's  leading  cases. 

reply   specially;    for  if  tlic   defendant  plaintifl''s  case  it  was  not  averred  the 

plead  an  autliority  in  law,  and  tlie  plain-  Sheriff"  had   notice,)   he  ought  to  have 

tiff  rely  on  an  abuse,  he  must  not  reply  been  detained.     In  that  case,  a  distinc- 

de  injuria,  as  will  be  seen  in  the  note  to  tion  was  drawn  by  Littledale,   J.,   be- 

Crooate's  case,  ante,  p.  59,  and  Price  v.  tween  cases  in  which  the  excess  may 

Peek,  1  Bing.  N.  C.  380.  have  been  contemplated  at  the  time  of 

It  has  been  lield  that  the  sheriff,  if  in-  the  original  act,  and  those  in  which  it 

deed  he  be  a  trespasser  at  all,  is  not  at  could  not  possibly  have  been  so.     Smith 

r*Rfi/l  all  events  so  ab  initio,  on  ^account  v.    Eggington,  7   A.  &   E.   161.     [See 

L        J  of  his  detaining  a  prisoner  who  Magnay  v.  Burt,  5  Q.  B.  381. 
came  into  liis  custody  lawfully  beyond         As  to  becoming  a  trespasser  ab  initio 

the  time  at  which,  according  to  the  prac-  by  nonfeasance,  see  the  dicta  in  Jacob- 

tice  of  the  Court  as  regulated  by  Statute  son  v.  Blake,  6  Man.  &  Gr.  925,  7  Scott, 

(but  of  the  applicability  of  which  to  the  N.  R.  772.] 


1.  The  first  of  the  three  points  above-mentioned,  that  the  abuse  of  an 
authority  given  by  law,  makes  the  party  a  trespasser  ab  initio,  is  confirmed 
in  Hazard  v.  Israel,  1  Binney,  240  ;  Colby  v.  Jackson,  12  New  Hampshire, 
526,  533;  Stephens  v.  Lawson,  7  Blackford,  275,  27G ;  dicta  in  Wilt  v. 
Welsh,  6  Watts,  9,  13,  in  Van  Brunt  and  another  v.  Schneck,  13  Johnson, 
414,  and  in  Nelson  v.  Miriam,  4  Pickering,  249.  Any  irregularity  in  the 
conduct  of  a  legal  agent,  whereby  any  of  his  acts  are  without  the  pre-requi- 
sites  appointed  by  the  law — as,  if  cattle  seized  damage-feasant,  are  impounded 
without  previous  assessment  of  damages,  or  goods  taken  under  warrant  of 
distress  for  fines  incurred,  or  for  duties,  are  sold  without,  or  after  too  brief 
an  advertisement,  or  goods  distrained  for  rent  are  sold  without  appraisement 
and  advertisement,  where,  as  in  Pennsylvania,  the  statute  11  Geo.  2,  c.  19, 
s.  19,  is  not  in  force — makes  a  trespasser  ab  initio;  Sackriderv.  M'Donald, 
10  Johnson,  253 ;  Blake  v.  Johnson,  1  New  Hampshire,  91 ;  Purrington 
V.  Loring,  7  Massachusetts,  388 ;  Kerr  and  another  v.  Sharp,  14  Sergeant 
&  Rawle,  399  ;  Barrett  v.  White,  et  a.,  3  New  Hampshire,  210,  228.  An 
officer  entering  a  house  to  serve  legal  process  on  goods,  becomes  a  trespasser 
ab  initio,  by  putting  an  unfit  person  in  keeping  of  the  goods,  against  the 
owners  consent ;  Maleom  v.  Spoor,  12  Metcalf,  279.  See  also  Rowley  v. 
Rice,  11  Id.  337.  A  sheriif  selling  the  whole  interest  in  goods,  owned  by 
two  jointly,  upon  an  execution  against  one,  is  a  trespasser,  ab  initio  ;  Mel- 
ville V.  Brown,  15  Massachusetts,  82 ;  Waddell  v.  Cook,  2  Hill's  N.  Y.  47. 
— It  is  otherwise  where  the  authority  is  given  by  the  party ;  Allen  v.  Ci'D- 
foot,  5  Wendell,  506,  where  a  difi"erent  reason  is  given  from  that  in  the 
principal  case. 

2.  The  point  of  pleading,  mentioned  above,  is  confirmed  in  Hopkins  v. 
Hopkins,  10  Johnson,  369,  and  decided  to  be  applicable  also  to  replevin; 
in  that  case,  replevin  was  brought,  avowry  made,  and  the  abuse  specially 
replied ;  it  was  held  that  the  original  taking  was  thereby  rendered  unlawful, 
and  replevin  lay. 

3.  Mere  non-feasance  does  not  make  a  trespasser  ab  initio  ;  G-ardener  v. 
Campbell,  15  Johnson,  401 ;  Gates  v.  Lounsbury,  20  id.  427 ;  Hale  v. 
Clark,  18  Wendell,  498  ;  Bell  v.  North,  4  Littell,  133 ;  Waterbury  v. 
Lockwood,  4  Day,  257.     There  must  be  such  a  positive  act,  as  if  done  with- 


LAMPLEIGII    V.    BRATHWAIT.  193 

out  authority  would  be  a  trespass ;  Shorland  v.  Govett,  5  B.  &  C.  485  ; 
Ferrin  v.  Symonds,  11  New  Hampshire,  363. 

The  principle  that  the  abuse  of  a  legal  authority  to  enter  renders  the 
original  entry  unlawful,  does  not  extend  to  criminal  law  ;  and  the  fact  that 
one  who  has  entered  an  inn  and  the  bar-room,  as  he  had  a  right  by  law  to 
do,  afterwards  commits  a  larceny  in  the  bar  room,  cannot  relate  back  so  as 
to  make  his  entry  into  the  house  criminal,  and  render  him  subject  to  an 
indictment  for  entering  the  house  with  intent  to  steal;  The  State  v.  Moore, 
12  New  Hampshire,  42,  where  the  reason  of  the  rule  in  the  principal  case, 
is  said  to  be  the  policy  of  the  law  for  preventing  its  authority  being  turned 
into  an  instrument  of  oppression  and  injustice. 

H.  B.  W. 


LAMPLEIGH    v.    BRATHWAIT.      [==G7] 


,.  MICH.  13  JACOB!.— ROT.  712. 

[REPORTED  HOBART,  105.] 

A  mere  voluntary  Courtesy  will  not  uphold  an  Assumpsit;  but  a  Courtesy  moved 
by  a  previous  request  will. — Labour,  though  unsuccessful,  is  a  good  considera- 
tion.    Of  Assumpsit  and  Considerations  generally. 

Anthony  Lampleigh  brought  an  assumpsit  against  Thomas  Brathwait 
and  declared,  that  whereas  the  defendant  had  feloniously  slain  one  Patrick 
Mahume ;  the  defendant,  after  the  said  felony  done,  instantly  required  the 
plaintiff  to  labour, (a)  and  do  his  endeavour  to  obtain  his  pardon  from  the 
king,  whereupon,  the  plaintiff,  upon  the  same  request  did,  by  all  the  means 
he  could  and  many  days'  labour,  do  his  endeavour  to  obtain  the  kinf^'s 
pardon  for  the  said  felony,  viz.  in  riding  and  journeying  at  his  own  charges 
from  London  to  Boston,  when  the  king  was  there,  and  to  London  back,  and 
so  to  and  from  Newmarket,  to  obtain  pardon  for  the  defendant  for  the  said 
felony.  Afterwards,  sc.  &c.,  in  consideration  of  the  premises,  the  said 
defendant  did  promise  the  said  plaintiff  to  give  him  100?.,  and  that  he  had 
not,  &c.,  to  his  damage  120?. 

To  this  the  defendant  pleaded  non  assumpsit,  and  found  for  the  plaintiff, 
damage  100?.  It  was  said  in  arrest  of  judgment,  that  the  consideration  was 
passed. 

But  the  chief  objection  was,  that  it  doth  not  appear  that  he  did  any  thing 

(fl)  In  a  case  in  Espinassc,  this  consideration  was  held  illeiral,  viz,  Norman  v.  Cole,  3 
Esp.  253.  " 


Vol.  l— 1 


o 


194  smith's   leading   cases. 

towards  the  obtaining  of  the  pardon,  but  riding  up  and  down,  and  nothing 
when  he  came  there.  And  of  this  opinion  was  my  brother  (Warburton), 
but  myself  and  the  other  two  Judges  were  of  opinion  for  the  plaintiff,*  and 
so  he  had  judgment. 

r  *fift  T  F^rst,  it  was  agreed,  that  a  mere  voluntary  courtesy  will  *D0t 
L  J  have  a  consideration  to  uphold  an  assumpsit.  But  if  that  courtesy 
were  moved  by  a  suit  or  request  of  the  party  that  gives  the  assumpsit,  it 
will  bind;  for  the  promise,  though  it  follows,  yet  it  is  not  naked,  but  couples 
itself  with  the  suit  before,  and  the  merits  of  the  party  procured  by  that  suit, 
which  is  the  difference.  Pasch.  10  Eliz.,  Dyer,  272.  Hunt  and  Bates. 
See  Oneley's  case,  19  Eliz.,  Dyer,  355. 

Then,  as  to  the  main  point,  it  is  first  clear,  that  in  this  case  upon  the 
issue  non  assumpsit,  all  these  points  were  to  be  proved  by  the  plaintiff: 

1.  That  the  defendant  had  committed  the  felony,  prout,  &;c. 

2.  Then  that  he  requested  the  plaintiff's  endeavour,  prout,  &c. 

3.  That  thereupon  the  plaintiff  made  his  proof,  prout,  &c. 

4.  That  thereupon  the  defendant  made  his  promise,  prout,  &c. 

For  wheresoever  I  build  my  promise  upon  a  thing  done  at  my  request,  the 
execution  of  the  act  must  pursue  the  request,  for  it  is  like  a  case  of  commis- 
sion for  this  purpose. 

So  then  the  issue  found  ut  supra  is  a  proof  that  he  did  his  endeavour 
according  to  the  request,  for  else  the  issue  could  not  have  been  found  :  for 
that  is  the  difference  between  a  promise  upon  a  consideration  executed  and 
executory,  that  in  the  executed  you  cannot  traversB  the  consideration  by 
itself,  because  it  is  passed  and  incorporated  and  coupled  with  the  promise.f 
And  if  it  were  not  indeed  then  acted,  it  is  nudum  jyactum. 

But  if  it  be  executory,  as,  in  consideration  that  you  shall  serve  me  a 
year,  I  will  give  you  ten  pounds,  here  you  cannot  bring  your  action,  till  the 
service  performed.  But  if  it  were  a  promise  on  either  side  executory,  it 
needs  not  to  aver  performance,  for  it  is  the  counter-promise,  and  not  the 
performance,  that  makes  the  consideration  ;|  yet  it  is  a  promise  before, 
though  not  binding,  and  in  the  action  you  shall  lay  the  promise  as  it  was, 
and  make  special  averment  of  the  service  done  after. 

Now,  if  the  service  were  not  done,  and  yet  the  promise  made,  prout,  &e., 
the  defendant  must  not  traverse  the  promise,  but  he  must  traverse  the  per- 
formance of  the  service,  because  they  are  distinct  in  fact,  though  they  must 
concur  to  the  bearing  of  the  action. 

^  *Then  also  note   here,  that  it  was  neither  required,  nor  pro- 

L  -'  mised  to  obtain  the  pardon,  but  to  do  his  endeavour  to  obtain  it ; 
the  one  was  his  end,  and  the  other  his  ofl&ce. 

Now  then,  he  hath  laid  expressly,  in  general,  that  he  did  his  endeavour 
to  obtain  it,  viz.  in  equitando,  &c.,  to  obtain.  Now,  then,  clearly,  the  sub- 
stance of  this  plea  is  general,  for  that  answers  directly  the  request,  the  spe- 
cial assigned  is  but  to  inform  the  court ;  and  therefore,  clearly,  if,  upon  the 
trial,  he  could  have  proved  no  riding  nor  journeying,  yet  any  other  effectual 

*  See  1  Wms.  Saund.  211,  c.  in  notis.     2  Wms.  Saund.  136,  in  notis. 
+  See  R.  H.  1834,  Passenger  v.  Brookse,  1  Bing.  N.  C.  587. 

X  See  notes  to  Pordage  v.  Cole,  1  Wms.  Saund.  320,  and  to  Peters  v.  Opie,  2  Wms. 
Saund. 352. 


LAMPLEIGH     V.     BRATHWAIT. 


195 


endeavour  according  to  the  request  would  have  served  :*'  and  therefore,  if, 
the  consideration  had  been,  that  he  should  endeavour  in  the  future,  so  that 
he  must  have  laid  his  endeavour  expressly,  and  had  done  it  as  he  doth  here, 
and  the  defendant  had  not  denied  the  promise,  but  the  endeavour,  he  must 
have  traversed  the  endeavour  in  the  general,  not  in  the  riding,  &c.,  in  the 
special ;  which  proves  clearly,  that  it  is  not  the  substance,  and  that  the 
other  endeavour  would  serve.  This  makes  it  clear,  that  though  particulars 
ought  to  be  set  forth  to  the  court,  and  those  sufficient,  which  were  not  done, 
which  might  be  cause  of  demurrer;  yet  being  but  matter  of  form,  and  the 
substance  in  the  general,  which  is  herein  the  issue  and  verdict,  it  were  cured 
by  the  verdict;  but  the  special  is  also  well  enough;  for  all  is  laid  down  for 
the  obtaining  of  the  pardon  which  is  within  the  request ;  and  therefore, 
suppose  he  had  ridden  to  that  purpose,  and  Brathwait  had  died,  or  himself, 
before  he  could  do  any  thing  else,  or  that  another  had  obtained  the  pardon 
before,  or  the  like,  yet  the  promise  had  holden. 

And  observe  that  case,  22  E.  4,  40.  Condition  of  an  obligation,  to  show 
a  sufficient  discharge  of  an  annuity,  you  must  plead  the  certainty  of  the  dis- 
charge to  the  court.f  The  reason  whereof,  given  by  Brian  and  Choke,  is, 
that  the  plea  there  contains  two  parts,  one  a  trial  j>e7'  pais  scil.  the  writing 
of  the  discharge,  the  other  by  the  court,  scil.  the  sufficiency  and  validity  of 
it,  which  the  jury  could  not  try,  for  they  agree,  that  if  the  condition  had 
been  to  build  a  house  agreeable  to  the  state  of  the  obligee,  because  it  was  a 
case  all  proper  for  the  country  to  try,  it  might  have  been  pleaded  generally  : 
and  then  it  was  a  demurrer,  not  an  issue,  as  is  here. 


T^-rn-^  *\Vhenevee  the  considera- 
•'  tion  of  a  promise  is  executory, 
there  must  ex  necessitate  rei  have  been 
a  request  on  the  part  of  the  person  pro- 
mising. For  if  A.  promise  to  remunerate 
B.,  in  consideration  that  B.  will  perform 
something  specified,  that  amounts  to  a 
request  to  B.  to  perform  the  act  for  which 
he  is  to  be  remunerated.  See  King  v. 
Sears,  2  C.  M.  &  R.  53.  5  Tyrwh.  .537. 
The  only  difficulty  that  can  arise  in  such 
cases  is  on  the  question  which  some- 
times occurs  whether  the  consideration 
move  from  the  plaintiff:  as,  for  instance, 
if  A.  in  consideration  of  something  to  be 
done  by  B.,  were  to  promise  something 
to  C,  in  this  case,  C,  being  a  stranger 
to  the  consideration,  unless  he  in  some 


way  had  intervened  in  the  agreement 
between  A.  and  B.,  could  not  sustain  an 
action  on  the  promise.  See  Price  v. 
Easton,  4  B.  &,  Adol.  433 ;  Osborne  v. 
Rogers,  1  Wms.  Saund.  264.  See 
Thomas  v.  Shillibeer,  1  Mee.  &  VVelsb. 
126.  But  if  the  plaintiff  have  intervened 
in  the  agreement,  that  is  sufficient. 
Tipper  v.  Bicknell,  3  Bingh.  N.  C.  710; 
Webb  V.  Rhodes,  ib.  734.  And  in  Lilly 
v.  Hayes,  5  A.  &  E.  549,  A.  transmitted 
money  to  B.  and  afterwards  informed 
him  that  it  was  for  C. :  B.  having  as- 
sented to  this,  and  C.  having  been  in- 
formed of  it,  it  was  held  that  C.  might 
maintain  assumpsit  for  money  had  and 
received  against  B.  See  also  Dutchman 
V.  Tooth,  5   Bing.  N.  C.  577.     {The 


*  Sec  the  notes  to  Bristow  v.  Wright,  post. 

t  So  to  a  plea  of  nul  agard  in  an  action  on  a  bond  to  perform  an  award,  the  replica- 
tion must  set  out  the  award  in  order  that  the  court  may  judge  of  its  sufficiency.  See  I 
Wms.  Saunders,  327,  n.  d. 


196 


SMITHS     LEADING    CASES. 


rule  seems  to  be,  that  where  the  third 
person  is  the  only  one  interested  in  the 
consideration, — as,  where  one  pays  mo- 
ney to  another  for  tlie  use  of  the  third 
person,  or  Iiaving'  money  of  another  pro- 
mises him  to  pay  it  to  the  third, — l\erc, 
the  ripfht  of  action  is  in  tlie  third  person  : 
but,  if  the  contract,  though  to  be  per- 
formed to  a  third  person,  is  for  the  bene- 
fit of  the  promisee,  and  the  third  is  a 
stranger  to  the  consideration,  as,  where 
the  promisee  owes  the  tliird  person,  and 
another  promises  him  that  he  will  pay 
that  person,  here  the  promisee  alone  has 
the  right  of  action.     BIymire  v.  Boistle, 

6  Watts,  182;  confirmed  in  Morrison  v. 
Berkey,  id.  349;  Hubbert  v.  Borden  and 
another,  6  Wharton,  79,  94;  Ramsdale 
V.  Morton,  3  Barr,  330;  Esling  v.  Zant- 
zinger,  1  Harris,  50,  5.5 :  see,  also,  Ed- 
mundson  V.  Penny,  1  Barr,  334;  Beers 
V.  Robinson,  9  id.  229;  Comfort  v. 
Eisenbeis,  1  Jones,  13,  16;  Ovvings's 
Ex'rs  V.  Owings,  1  Harris  &  Gill,  465; 
Carnegie  and  another  v.  jMorrison  and 
anotheV,  2  Metcalf,  381 ;  Sailly  v.  Cleve- 
land, 10  Wendell,  156,  1-59;  Barker  v. 
Bucklin,  2  Dejiio,  45;  Treat  v.  Stanton, 
14  Connecticut,  446,  451 ;  Hall  v.  Hun- 
toon,  17  Vermont,  244,  251  ;  Motley  v. 
Manuf  Ins.  Co.  29  Maine,  337 ;  Todd 
V.  Tobey,  id.  220,  224;  Farlow  v.  Kemp, 

7  Blackford,  544  ;  Huckabee  v.  May,  14 
Alabama,  263,  265.}  Where  the  con- 
sideration is  executed,  unless  there  have 
been  an  antecedent  request,  no  action  is 
maintainable  upon  the  promise  ;  for  a 
request  must  be  laid  in  the  declaration, 
and  proved,  if  put  in  issue  at  the  trial. 
Child  V.  Morley,  8  T.  R.  610  ;  [see  Sut- 
ton V.  Tatham,  10  A.  &  E.  27 ;]  Stokes 
V.  Lewis,  1  T.  K.  20  ;  Naish  v.  Tatlock, 
2  H.  Bl.  319;  Hayes  v.  Warren,  2  Str. 
933;  Richardson  v.  Hall,  1  B.  &  B.  50; 
Durnford  v.  Messiter,  5  M.  &  S.  446. 
{Livingston  v.  Rogers,  1  Caines,  584, 
and  sec  note  to  edition  of  1813;  Corn- 
stock  v.  Smith,  7  Johnson,  87;  Parker 
V.  Crane,  6  Wendell,  647.}  See  Reg. 
Gen.  Ilil.  1832,  pi.  8.  For  [although 
courts  of  law  will  not,  in  the  absence  of 
fraud,  enter  into  the  question  of  ade- 
quacy of  consideration,  Skeate  v.  Boale, 
11  A.  &  E.  983;  England  v.  Davison, 
11  A.  &  E.  856,  yet]  a  mere  voluntary 
courtesy  is  not  sufficient  to  support  a 
subsequent  promise  ;  but  when  there  was 
r*-n  -]  previous  *request,  the  courtesy 
'  "-'  was  not  merely  voluntary,  nor  is 
the  ^xomiiQ  nudum  imclum,  but  couples 


itself  with,  and  relates  back  to,  the  pre- 
vious request,  and  the  merits  of  the  par- 
ty which  were  procured  by  that  request, 
and  is  therefore  on  a  good  consideration. 
See  Pawle  v.  Gunn,  4  Bing.  N.  C.  448. 
[When,  however,  it  is  above  said  that 
the  request  must  be  laid  and  proved,  it 
must  be  understood  that  there  are  some 
cases  in  which  the  consideration,  though 
executed,  is  of  such  a  nature  that  it 
must  have  been  moved  by  a  previous  re- 
quest, and  in  which,  therefore,  as  in  a 
case  of  e.xecutory  consideration,  the 
statement  liiat  what  was  done  was  at 
the  dejendant's  request,  is  merely  ex- 
jiressio  eorum  qucs  tacite  insunt,  and, 
therefore,  unnecessary.  Such,  for  in- 
stance, is  the  case  of  money  lent,  which, 
if  lent  at  all,  must  obviously  have  been 
so  with  the  borrower's  concurrence. 
But  the  demand  for  money  paid  to  the 
defendant's  use  stands  on  a  different 
footing,  for  it  may  be  so  paid  without 
his  request,  which,  consequently,  ought 
to  be  averred  in  terms,  and  proved,  ei- 
ther directly  or  by  circumstances  from 
which  it  may  be  implied  by  law.  Vic- 
tor v.  Davies,  12  M.  &  W.  758;  1  M. 
&  Gr.  265,  note.l  Such  a  request  may 
be  either  express  or  implied.  If  it  have 
not  been  made  in  express  terms,  it  will 
be  implied  under  the  following  circum- 
stances : — First,  Where  the  considera- 
tion consists  in  the  plaintiff"'s  having 
been  compelled  to  do  that  to  which  the 
defendant  was  legally  compellable.  Jef- 
freys V.  Gurr,  2  B.  &  Ad.  833  ;  Povvnall 
V.  Ferrand,  6  B.  &  C.  439 ;  Exall  v. 
Partridge,  8  T.  R.  308;  Toussaint  v. 
Martinnant,  2  T.  R.  100 ;  Grissel  v  Rob- 
inson, 3  Bingh.  N.  C.  13.  {Draughan 
V.  Bunting,  9  Iredell,  10,  13.}  Second- 
ly, Where  the  defendant  has  adopt- 
ed and  enjoyeil  the  benefit  of  the  consi- 
deration, for  in  that  case  the  maxim  ap- 
plies omnis  ratihibitio  retrotrahiiur  et 
mandato  cequiparatur.  Vide  Pawle  v. 
Gunn,  4  Bing.  N.  C  448.  {Doty  v. 
Wilson,  14  Johnson,  378;  Kenan  v. 
Ilolloway,  16  Alabama,  54,  58  ;  Gue- 
rard  v.  Jenkins,  1  Strobhart,  171.} 
Thirdly,  Where  the  plaintiff  voluntari- 
ly does  that  whereunto  the  defendant 
was  legally  compellable,  and  the  defend- 
ant afterwards,  in  consideration  tiiereof, 
expressly  i^rom'xsGS.  Wennell  v.  Adney, 
3  B.  &  P.  2.50  in  notis  ;  Wing  v.  Mill, 
1  B.  &  A.  104 ;  S.  N.  P.  8  ed.  p.  57,  n, 
11.  Paynter  v.  Williams,  1  C,  &  M. 
818.    But  it  must  be  observed  that  there 


LAMPLEIGH     V.      BRATHWAIT. 


197 


is  this  distinction  between  this  and  the 
two  former  cases,  viz.  that  in  eacli  of  the 
two  former  cases  the  law  will  imply  the 
'promise  as  well  as  the  request,  whereas 
in  this  and  the  following-  case,  ihc pro- 
mise is  not  implied,  and  the  request  is 
only  then  implied  when  there  has  been 
an  express  promise.  Atkins  v.  Banwell, 
2  East,  505.  [Without  a  ratification  of 
the  payment,  one  who  pays  the  debt  of 
another  without  his  request,  cannot  re- 
cover ;  Winsor  v.  Savage,  9  Metcalf, 
347,343;  Young  v.  Dibbrell,  7  Hum- 
phreys, 270  ;  Lewis  v.  Lewis,  3  Strob- 
hart,  530;  Matthews  v.  Colburn,  1  Id. 
258,  270.}  Fourthly,  In  certain  cases, 
where  the  plaintiff  voluntary  does  that 
to  which  the  defendant  is  morally, 
though  not  legally,  compellable,  and  the 
defendant  afterwards,  in  consideration 
thereof,  expressly  promises.  See  Lee  v. 
r^-^,-,  Muggeridge,  *5  Taunt.  36*; 
L  '^«J  Walson  v.^Turner,  B.  N.  P.  129, 
147,  281.  Truman  v.  Fenton,  Gowp. 
544.  Atkins  v.  Banwell,  2  East,  505, 
But  every  7norfiZ  obligation  is  not  pet- 
haps  sufficient  for  this  purpose.  See 
per  Lord  Tenterden,  C.  J.,  in  Littlefield 
V.  Shee,  2  B.  &,  Add.  811.  [Indeed  it 
seems  to  be  now  clearly  settled  by  the 
elaborate  judgment  of  the  Court  of 
Queen's  Bench  in  Eastwood  v.  Kenyon, 
11  Ad.  &  E.  452,  3  Per.  &  D.  270,  S. 
C,  that  a  mere  moral  obligation,  how- 
ever sacred,  is  not  a  sufficient  foundation 
for  a  binding  promise,  and  that  the  class 
of  considerations  derived  from  moral  obli- 
gation includes  only  those  cases  in  which 
there  has  been  a  legal  right  which  is 
become  devoid  of  legal  remedy.  Such, 
for  instance,  is  the  case  of  a  bankrupt 
discharged  by  his  certificdte  of  liabili- 
ties which  he  is  nevertheless  bound  in  ho- 
nesty to  satisfy  ;  in  such  a  case,  the  law 
considers  his  moral  obligation,  though 
devoid  of  legal  sanction,  as  capable  of 
sustaining  a  new  express  promise  to  dis- 
char^re  the  former  liability,  and  such  a 
promise  may  be  made  either  before  or 
after  certificate;  see  Trueman  v.  Fen- 
ton, Cowp.  544;  Kirkpatrick  v.  Tatter- 
sall,  13  M.  &  VV.  766,  {and  Earle  v. 
Oliver,  2  Exch.  71,  83.}  Of  the  same 
nature  is  a  promise  made  by  a  debtor 
whose  liability  has  been  barred  by  the 
statute  of  limitations.  See  note  to 
Whitcombe  v.  Whiting,  poAY.  And  see 
what  is  said  as  to  infancy,  Williams  v. 
Moor,  11  M.  &  W.  263.  The  tenden- 
cy of  modern  decisions  has  been  to  con- 
fine the  legal  efficacy  of  moral  obliga- 


tion to  such  cases.  Thus,  where  a  man 
seduced  a  woman,  and,  after  cohabita- 
tion had  ceased,  by  way  of  compensa- 
tion, expressly  promised  to  pay  a  yearly 
sum  for  her  support,  that  promise  was 
held  not  to  be  bindincia  law.  Beaumont 
T.  Reeve,  8  Q.  B.  4^3.] 

{See  Mills  v,  Wyman,  3  Pickering, 
207;  Valentine  v.  Foster,  1  Metcalf, 
521 ;  Dearborn  and  another  v.  Bowman, 
3  Id.  155;  Wheaton  v.  Wilmarth,  13 
Id.  422,  427;  Ehe  v.  Judson,  24  Wen- 
dell, 97;  Stafford  v.  Bacon,  25  Wendell, 
384;  S.  C,  1  Hill,  533;  2  Id.  453; 
Nash  V.  Russell,  5  Barbour's  S.  C, 
556 ;  Vanderveer  v.  Wright,  6  Id.  547, 
551;  Snevely  v.  Reed,  9  Watts,  396; 
Kennedy's  Ex'ors  v.  Ware,  1  Barr,  445, 
451  ;  Carman  v.  Noble,  9  Id.  367,  371 ; 
Briggs  and  Ely  v.  Sutton,  Spencer, 
581. } 

Whether  a  father  impliedly  under- 
takes to  repay  any  person  supporting 
his  child  whom  he  deserts.  Dubitatur; 
Urmston  v.  Newcomen,  4  A.  &  Ell. 
899.  [It  seems  that  no  such  undertak- 
ing would  be  implied  by  law.  Parke, 
B.  in  Seaborne  v.  Maddy,  9  Car.  &  P. 
497,  said  "  No  one  is  bound  to  pay  ano- 
ther for  maintaining  his  children,  either 
legitimate  or  illegitimate,  except  he  has 
entered  into  some  contract  to  do  so. 
Every  man  is  to  maintain  his  own  chil- 
dren as  he  himself  shall  think  proper; 
and  it  requires  a  contract  to  enable  ano- 
ther person  to  do  so,  and  charge  him  for 
it  in  an  action."  The  same  law  was 
laid  down  in  Mortimorev.  Wright,  6  M. 
&,  W.  432,  where,  per  Lord  Abinger,  "  in 
point  of  law,  a  father  who  gives  no  au- 
thority, and  enters  into  no  contract,  is 
no  more  liable  for  goods  supplied  to  his 
son  than  a  brother  or  an  uncle,  or  a 
mere  stranger  would  be;"  and  Parke, 
B.  said,  "  It  is  a  clear  principle  of  law, 
that  a  father  is  not  under  any  legal  obi/- 
gation  to  pay  his  son's  debts,  except,  in- 
deed, by  proceedings  under  the  43E.,by 
*which  he  may,  under  certain  cir-  r^-,x  , 
cumstances,  be  compelled  to  sup-  ■-  '  J 
port  his  children  according  to  his  abilty  ; 
but  the  mere  moral  obligation  to  doso  can- 
not impose  any  legal  liability."  The  future 
maintenance  of  a  child  would,  however, 
of  course  be  a  sufficient  consideration  for 
a  promise,  Jennings  v.  Brown,  9  W.  & 
W.  496;  {Linnegar  v.  Ilodd,  5  C.  B. 
437.}  And  such  a  promise  need  not  be 
in  express  terms,  but  may  be  implied 
from  circumstances,  Blachburn  v.  Mac- 
key,  1  C.  &  P.  1 ;  Law  v.  Wilkin,  6  A. 


198 


smith's   leading    cases. 


&  E.  718,  1  N.  &  P.  697 ;  though,  ac- 
cording to  tlie  case  of  Mortimore  v. 
Wright,  supra,  "  In  order  to  bind  a  father 
in  point  of  law  for  a  debt  incurred  by  his 
son,  you  must  prove  that  he  has  con- 
tracted to  be  bound,  just  in  the  same 
manner  as  you  would  prove  such  a  con- 
tract against  any  other  person,  and  it 
would  bring  the  law  into  great  uncer- 
tainty if  it  were  permitted  to  juries  to 
impose  a  liability  in  each  particular  case 
according  to  their  own  feelings  or  pre- 
judices," per  Lord  Abinger. 

A  remarkable  exception  from  the  rule, 
that  a  promise  to  pay  may  be  implied 
from  a  previous  request  occurs  in  the 
case  of  a  barrister  or  physician,  who  can 
claim  no  remuneration  for  services  per- 
formed at  the  request  of  the  client  or 
patient,  the  circumstance  of  their  profes- 
sion rebutting  the  implication  of  a  pro- 
mise, which  would  otherwise  have  arisen. 
See  Veitch  v.  Russell,  3  Q.  B.  928.  An- 
other  may  be  where  there  is  a  covenant 
under  seal,  wiiich  would  rebut  the  infer- 
ence of  an  implied  promise,  and  not  sus- 
tain an  express  one  to  do  what  is  cove- 
nanted, for  want  of  new  consideration. 
Baber  v.  Harris,  9  A.  &  E.  532.] 

Upon  the  question,  what  will  amount 
to  evidence  of  a  request  where  it  is  ne- 
cessary to  prove  one,  see  Alexander  v. 
Vane,  1  Mee.  &.  Welsh.  513.  Where  A. 
&  B,  went  to  C.'s  shop;  A.  ordered 
goods,  and  B.  said  in  A.'s  presence  that 
he  would  pay  for  them  if  A.  did  not. 
This  was  held  evidence  of  a  request  from 
A.  to  B.  to  pay  for  them  in  case  of  his 
own  default. 

One  of  the  most  singular,  perhaps  the 
most  singular  case  determined  on  the 
ground  o'i  nudum  pactum,  is  Hopkins  v. 
Logan,  5  M.  &  W.  247,  where  it  was  held 
that  an  account  stated.and  a  sum  there- 
upon found  to  be  due  to  the  plaintiff,  will 
not  support  a  promise  to  pay  such  sum 
in  fuluro,  though  the  law  \vould  imply 
a  promise  to  pay  it  in  prcEsenli.  [The 
ground  of  the  decision  appears  to  have 
been,  that  the  promise  implied  by  law 
to  pay  ill  prasenli  exhausted,  as  it  were, 
the  consideration,  and  that  there  was, 
consequently,  no  consideration  left  for 
any  other  promise  ;  so  that  it  bears  some 
analogy  to  Granger  v.  Collins,  in  which 
a  declaration  that  B.  had  agreed  to  take 
A.'s  house  at  a  certain  rent ;  and  that 
A.,  in  consideration  of  the  premises,  pro- 
mised that  he  should  enjoy  without  evic- 
tion from  C.  was  held  bud  for  want  of  a 


^consideration  to  support  the  as-  r^,~ft  r, 
sumpsit,  6  M.  &  W.  453;  and  L  '"'^J 
see  Brown  v.  Crump,  1  Marsh.  567  ;  and 
Jackson  v.  Cobbin,  8  M.  &  VV.  790  ;  Ros- 
corla  v.  Thomas,  3  Q.  B.  234,  2  Gale  &  D. 
508 ;  Kaye  v.  Dutton,  8  Scott,  N.  R.  495. 
In  Hopkins  v.  Logan,  as  has  been  just 
observed,  a  debt  payable  in  prasenti  was 
held  no  consideration  for  a  promise  to  pay 
in  futuro ;  but  in  Walker  v.  Rostron,  9 
M.  &  VV.  411,  the  Court  of  Exchequer 
held  that  a  debt  payable  in  fuluro  was  a 
good  consideration  for  an  appropriation 
of  funds  in  the  hands  of  the  debtor's 
agent  by  way  of  security  for  the  debt. 
The  distinction  seems  to  be  between  an 
executed  transfer  and  an  executory  pro- 
mise. { "  According  to  the  current  of  re- 
cent authorities,  beginning  with  Hopkins 
V.  Logan,  5  M.  &,  VV.  241,  and  ending 
with  Roscorla  v.  Thomas,  3  Q.  B.  234, 
w^here  the  consideiation  is  past  and  exe- 
cuted, it  will  support  only  such  a  pro- 
mise as  the  law  will  imply  from  that  ex- 
ecuted consideration:"  per  Parke,  B.  in 
delivering  judgment  in  the  Ex.  Ch.  in 
Elderton  v.  Emmens,  6  C.  B.  160,  174.} 
In  Kaye  v.  Dutton,  2  Dowl.  &  Low. 
296-7,  8  Scott,  N.  R.  502-3,  Tindal,  C.  J., 
after  citing  Hopkins  v.  Logan  and  other 
cases  of  that  class,  points  out  the  possi- 
bility of  a  distinction  between  them  and 
cases  of  executed  consideration  from 
which  no  promise  can  be  implied  by  law, 
intimating  that  possibly,  although  consi- 
derations of  the  former  class  are  only 
capable  of  supporting  the  promise  im- 
plied by  law,  yet  those  of  the  latter  may 
be  capable  of  supporting  any  promise 
otherwise  unobjectionable.  No  decision, 
however,  was  pronounced  upon  that 
point.  And  it  seems  impossible  to  state 
any  rational  distinction  between  the  lat- 
ter class  of  cases  and  moral  obligations 
of  pure  gratitude  for  favours  past,  which, 
as  we  have  seen  page  706,  will  not  sus- 
tain a  promise.]  {In  Earle  v.  Oliver,  2 
Exch.  71,  90,  it  was  decided,  that  a  debt 
barred  by  certificate  or  by  the  Statute  of 
Limitations  is  a  sufficient  consideration 
for  a  qualified  or  conditional  promise  to 
pay  it,  as  well  as  for  an  absolute  and 
unqualified  one,  and  that  when  the  debt 
has  become  payable  immediately,  it 
may  be  recovered  in  the  ordinary  inde- 
bitatus assumpsit ;  but  that  a  debt  thus 
barred  would  not  be  a  sufficient  conside- 
ration to  support  a  promise  to  do  a  col- 
lateral thing.} 

It  is  perhaps  upon  the  principle  tha    a 


LAMTLEIGn     V.     BRATHWAIT. 


199 


gift  while  executory  is  nudum  pactum, 
and  therefore  incapable  of  being-  en- 
forced, that  a  parol  gift  of  chattels  is 
held  to  pass  no  property  to  the  donee 
without  delivery.     Irons  v,  Smallpiece, 

2  B.  &  A.  558.  [The  property  may  be 
passed  by  a  contract  of  sale  for  valuable 
consideration  without  delivery.  Dixon 
V.  Yates,  5  B,  &  Ad.  340,  per  Parke,  J.] 

It  has  been  above  stated  that  one  of 
the  cases  in  which  an  express  request  is 
unnecessary,  and  in  which  a  promise  will 
be  implied,  is  that  in  which  the  plaintiff 
has  been  compelled  to  do  that  to  which 
the  defendant  was  legally  compellable. 
On  this  principle  depends  the  right  of  a 
surety  who  has  been  damnified  to  reco- 
ver an  indemnity  from  his  principal. 
Toussaint  v.  Martinnant,  2  T.  R.  100; 
Fisher  v.  Fellows,  5  Esp.  171 ;  { Apple- 
ton  and  another  v.  Bascom  and  another, 

3  Metcalf,  169;  Gibson  v.  Love,  2  Flo- 
rida, 599,  620. }  Thus,  the  indorser  of 
a  bill  who  has  been  sued  by  the  holder, 
and  has  paid  part  of  the  amount,  being  a 
surety  for  the  acceptor,  may  recover  it 
back  as  money  paid  to  his  use  and  at  his 
request.  Pownall  v.  Ferrand,  6  B.  &  C. 
439.  [So  may  the  acceptor,  where,  un- 
der the  circumstances,  e.  g.  by  reason  of 
a  composition  or  the  like,  the  bill  ought 
not  to  have  been  negotiated,  or  ought  to 
have  been  taken  up  by  some  other  per- 
son. Hawley  v.  Beverley,  6  Scott,  N.  R. 
837;  Horton  v.  Riley,  11  M.&W.492; 
Hooper  v.  Traffrey,  1  Ex.  R.  17.]  But 
then  the  surety  must  have  been  compel- 
\*70p1  ^^^'  ^'  ^'  ^'^  *ni"st  have  been  un- 
^  ^  der  a  reasonable  obligation  and 
necessity,  to  pay  what  he  seeks  to  reco- 
ver from  his  principal;  for  if  he  impro- 
perly defer]d  an  action  and  incur  costs, 
there  will  be  no  implied  duty  on  the  part 
of  his  principal  to  reimburse  him  those, 
unless  the  action  was  defended  at  the 
principal's  request.  Roach  v.  Thompson, 
1  M.  &  M.  487.  See  4  C.  &  P.  194; 
[11  A.  &  E.  31,  n.];  Gillett  v.  Rippon, 
1  M.  &  M.  406;  Knight  v.  Hughes,  1 
M.  &  M.  247;  Smith  v.  Compton,  3 
B.  &  Ad.  407.  [Short  v.  Kalloway,  11 
A.  &  E.  28,  vibi  per  Lord  Denman,  "  No 
person  has  a  right  to  inflame  his  own  ac- 
count against  another,  by  incurring  ad- 
ditional expense  in  the  unrighteous  re- 
sistance to  an  action  he  cannot  defend." 
Sje  Walker  v.  Hatton,  10  M.  &  W.  249 ; 
and  see  Tindall  v.  Bell,  11  M.  &  VV.  228.] 
But  if  he  make  a  reasonable  and  prudent 
compromise,  he  will  be  justified  in  doing 
so.  Smith  v.  Compton.     [And  where  the 


plaintiff's  claim  is  of  an  unliquidated 
nature  and  needs  investigation,  it  seems 
that  he  may,  unless  expressly  forbidden, 
incur  the  expense  of  investigating  it,  or 
at  least  that  very  slight  evidence  is 
enough  to  raise  an  inference  that  the 
person  ultimately  liable  has  assented  to 
his  doing  so.  Bly  th  v.  Smith,  5  M.  &  Gr. 
407 ;  6  Scott,  N.  R.  360.  It  seems  to  be 
for  the  jury  in  each  case  to  say,  whether 
in  defending  and  incurring  the  costs 
sought  to  be  recovered,  the  plaintiff  pur- 
sued the  course  which  a  prudent  and  rea- 
sonable man  uninderanified  would  do  in 
his  own  case,  and  if  the  jury  find  that  he 
did,  the  costs  may  be  recovered.  Tindall 
V.  Bell,  supra].  However,  it  is  always 
advisable  for  the  surety  to  let  his  prin- 
cipal know  when  he  is  threatened,  and 
request  directions  from  him ;  for  the  rule 
*laid  down  by  the  King's  Bench  r  ^-j  -, 
in  Smith  v.  Compton  is,  that "  the  ^  ^ 
effect  of  want  of  notice  (to  the  principal), 
is  to  let  in  the  party  who  is  called  upon 
for  an  indemnity,  to  show  that  the  plain- 
tiff has  no  claim  in  respect  of  the  alleged 
loss,  or  not  to  the  amount  alleged;  that 
he  made  an  improvident  bargain,  and 
that  the  defendant  might  have  obtained 
better  terms  if  an  opportunity  had  been 

given   him The  effect  of 

notice  to  an  indemnifying  party  is  stated 
by  Buller,  J.,  in  Duffield  v.  Scott,  3  T. 
R.  347.  [Recognised  in  Jones  v.  Wil- 
liams, 7  M.  &  W.  493.]  The  purpose 
of  giving  notice  is  not  in  order  to  give  a 
ground  of  action ;  but  if  a  demand  be 
made  which  the  party  indemnifying  is 
bound  to  pay,  and  notice  be  given  to  him, 
and  he  refuse  to  defend  the  action,  in 
consequence  of  which  the  person  indem- 
nified is  obliged  to  pay  the  demand,  that 
is  equivalent  to  a  judgment,  and  estops 
the  other  party  from  saying  that  the  de- 
fendant in  the  first  action  was  not  bound 
to  pay  the  money."  [It  is  very  neces- 
sary in  this  place  to  observe  the  distinc- 
tion between  the  case  of  a  con-  r^~,  ■, 
tract  to  indemnify,  *or  a  contract  '-  -• 
to  do  the  very  thing  to  which  the  con- 
trac.tee  is  liable,  and  the  breach  of 
which,  consequently,  may  raise  an  obli- 
gation to  indemnify  the  conti;actee 
against  such  liability,  and  a  contract  to 
do  something  not  precisely  the  same 
with  that  to  which  the  contractee  is  lia- 
ble. In  the  latter  case  the  Court  of  Ex- 
chequer has  held,  that  the  costs  occa- 
sioned by  an  action  against  the  con- 
tractee, on  such  liability,  were  not 
recoverable  over.     Penley  v.  Watts,  7 


200 


smith's   leading   cases. 


M.  «fc  W.  COl ;  where  a  lessee,  who  had 
made  an  underlease  containing  cove- 
nants not  precisely  the  same  with  those 
in  the  original  lease,  was  held  not  to  be 
entitled  to  recover  from  his  underlessee 
the  costs  of  an  action  brought  against 
him  by  his  own  lessor  for  the  breach  of 
tlie  covenants  in  the  original  lease,  and 
some  reflexions  were  both  in  that  case 
and  in  Walcer  v.  Hatton,  10  M.  &  VV. 
249,  wliich  affirms  it,  cast  upon  Neale  v. 
Wylie,  3  B.  &  C.  533,  which  may  be 
considered  as  finally  overruled  by  Logan 
V.  Hall,  4  C.  B.  598,  where  it  was  hold- 
en  that  a  lessee,  who  had  been  evicted 
for  breach  of  covenant  could  not  recover 
the  value  of  the  lease  from  his  sub-lessee, 
whose  sub-lease  did  not  contain  any  co- 
venants the  performance  of  which  would 
necessarily  have  included  a  performance 
of  the  covenants  in  the  original  lease.] 

On  the  same  ground  as  the  liability  of 
a  principal  to  reimburse  his  surety,  de- 
pends the  right  of  one  surety  or  joint 
contractor  who  has  been  obliged  to  satisfy 
the  whole  demand,  to  recover  a  propor- 
tionable contribution  from  his  fellow 
surety  or  contractor.  He  is  a  person 
who  has  been  compelled  to  satisfy  a  de- 
mand, parcel  of  which  his  fellow  was 
compellable  to  satisfy:  Cowell  v.  Ed- 
wards, 2  B.  &  P.  268 ;  Turner  v.  Dayies, 
2  Esp.  478 ;  Browne  v.  Lee,  G  13.  &  C. 
697;  Deering  v.  VVinchelsea,  2  B.  &  P. 
270;  [Kemp  v.  Finden,  12  M.  &  W. 
421 ;]  though,  indeed,  if  one  have  be- 
come surely  at  the  instance  of  the  other, 
particularly  if  that  other  have  received 
from  the  principal  a  separate  indemnity 
for  himself,  it  will  be  different.  Turner 
V.  Davies ;  see  Thomas  v.  Cook,  8  B.  &  C. 
728.  [A  surety's  right  to  re-imburse- 
ment  from  the  principal  accrues,  toties 
quoties,  as  often  as  he  is  compelled  to 
make  a  payment;  that  to  contribution 
from  a  surety  does  not  accrue  till  it  is 
ascertained  that  one  surety  has  paid 
more  than  his  just  proportion  of  the  debt, 
after  which  it  accrues,  toties  quoties,  on 
the  occasion  of  each  payment  that  he  is 
subsequently  forced  to  make;  Davies  v. 
Humphreys,  0  M.  ^  VV.  168.  And  he 
may  recover  contribution  according  to 
the  number  of  sureties,  without  reference 
to  the  number  of  principals;  Kemp  v. 
Finden,  12  M.  &  \V.  421.]  See  as  to 
the  right  of  a  joint  contractor  to  contribu- 
tion, Lord  Kenyon's  judgment  in  Merry- 
wether  V.  Nixan,  *8  T.  R.  186, 


[*7lb] 


and  post,  vol.  2 ;  Abbot  v.  Smith, 


2  BI.  947;  Hutton  v.  Eyre,  6  Taunt. 


289 ;  Bayne  v.  Stone,  4  Esp.  13 ;  Bur- 
nell  v.  Minot,  4  Moore,  340;  Holmes 
V.  Williamson,  6  M.  &  S.  158.  [Where 
several  have  employed  another  to  do 
work  for  their  common  benefit,  there  is 
an  implied  undertaking  by  all  to  contri- 
bute rateably  inter  se  ;  Edgar  v.  Knapp, 
G  Scott,  N.  R.  707.  And  where,  by  the 
nature  of  the  case,  the  representative  of 
any  party  dying  is  to  have  the  same  ben- 
efit as  "the  deceased  would  have  had  if  he 
had  lived,  the  law  will  imply  the  like 
promise  on  the  part  of  the  deceased,  that 
his  representative  shall  contribute,  not- 
withstanding that  he  is  under  no  direct 
liability  in  a  court  of  law,  to  the  common 
creditor  ;  Prior  v.  Hembrow,  8  M.  &  VV. 
873.  Nota. — The  count  was  in  the  in- 
debitatus form  for  money  paid  to  the  use 
of  the  executor ;  ib.]  It  is  otherwise, 
indeed  where  the  joint  contractors  are 
partners,  for  then  justice  could  not  be 
done  between  them  without  balancing 
the  partnership  accounts,  which  is  the 
office  of  a  court  of  equity  ;  Sadler  v. 
Nixon,  5  B.  «Sl  Ad.  936  ;  unless  the  part- 
nership was  merely  in  an  isolated  trans- 
action. See  Wilson  v.  Cutting,  10 
Bingh.  436.  But  no  action  for  contribu- 
tion is  maintainable  by  one  wrongdoer 
against  another,  although  the  one  who 
claims  contribution  may  have  been  com- 
pelled to  s.atisfy  the  whole  damages  aris- 
ing from  the  tort  committed  by  them 
both.  This  was  decided  in  Merrywelher 
v.  Nixan,  8  T.  R.  186.  There,  Starkey, 
having  brought  an  action  on  the  case 
against  Merrywether  and  Nixan  for  an 
injury  done  by  them  to  his  reversion, 
levied  the  whole  damages,  amounting  to 
84,01.,  upon  Merrywether,  who  thereupon 
sued  Nixan  for  a  contribution  :  the  plain- 
tiff was  nonsuited,  on  the  ground  that 
such  an  action  lay  not  between  wrong- 
doers ;  and  the  court  afterwards  held  tlie 
nonsuit  proper.  Lord  Kenyon,  in  his 
judgment,  having  laid  down  the  general 
principle,  observed,  that  "  the  decision 
would  not  affect  cases  of  indemnity 
where  one  man  employed  another  to  do 
acts  not  unlawful  in  themselves,  for  the 
purpose  of  asserting  a  right."  "  From 
the  inclination  of  the  court,  in  Phillips 
v.  Biggs,  Hard.  1G4,  from  the  concluding 
part  of  Lord  Kenyon's  judgment  in  Mer- 
rywether V.  Nixan,  and  from  reason,  jus- 
tice, and  sound  policy,  the  rule  that 
wrongdoers  cannot  have  contribution 
against  each  other,  is  confined  to  cases 
wiiere  the  person  seeking  redress  must 
be  presumed  to  have  known  that  he  was 


LAMPLEIGII    V.    BRATHWAIT. 


201 


doing  an  unlawful  act."  Per  Best,  C. 
J.,  in  Adamson  v.  Jervis,  4  B'mg.  72. 
Accordingly  in  Belts  v.  Gibbons,  2  Adol. 
&  Ell.  57,  such  an  action  was  held  to  be 
maintainable.  There,  the  defendant 
consigned  to  the  plaintiffs  ten  casks  of 
acetate  of  lime,  for  Nyren  and  Wilson, 
r^-,,  -,  two  of  which  were  *delivered,  but 
^  '  ^-l  the  remaining  eight  continued  in 
the  plaintiffs'  hands  up  to  the  time  of 
Nyren  and  Wilson's  bankruptcy,  on 
which  the  plaintiffs,  by  the  defendant's 
orders,  refused  to  deliver  them  to  the 
assignees,  who  brought  an  action  of  trover, 
which  the  plaintiffs  compromised  by  pay- 
ing the  value  of  the  casks,  together  with 
the  costs,  and  brought  this  action  against 
the  defendants  for  indemnity.  They 
r  •■Hjo  -|  were  held  to  be  entitled  to  recover. 
L  -'  J*<(The  principle  laiddown  in  Mer- 
rywether  v.  Nixan,"  said  Taunton,  J.,  "  is 
too  plain  to  be  mistaken.  The  laio  ivill 
not  imply  an  indemnity  hetioeen  lorong- 
doers.  But  the  case  is  altered  ichcre  the 
matter  is  indifferent  in  itself,  and  when 
it  turns  upon  circumstances  whether  the 
act  he  wrong  or  not.  The  act  done 
here,  by  changing  the  destination  of  the 
goods  at  the  order  of  the  defendant,  was 
not  clearly  illegal ;  and,  therefore,  not 
within  the  rule  in  Merrywether  v.  Nix- 
an :"  accord.  Humphreys  v.  Pratt,  2  Dow. 
&  CI.  288;  Pearson  v.  Skelton,  1  M.  & 
Welsh.  504 ;  Fletcher  v,  Harcot,  Ilutt. 
55,  S.  C.  as  Battersey's  case.  Winch.  48. 
In  Colbourn  v.  Patmore,  4  Tyrwh.  677, 
1  C.  M.  &  Ros.  73,  the  proprietor  of  a 
newspaper  sued  his  editor  for  falsely, 
maliciously  and  negligently  inserting  a 
libel  tllferein,  without  the  knowledge, 
leave,  or  authority  of  the  plaintiff,  "  in 
consequence  of  which  the  plaintiff  was 
convicted  and  fined  for  falsely  and  mali- 
ciously printing  and  publishing  the 
said  libel."  The  case  was  determined 
against  the  plaintiff  on  a  slip  in  the 
pleading,  the  court  being  of  opinion  that 
it  was  consistent  with  the  statement  in 
tiic  declaration,  that  the  plaintiff,  though 
he  did  not  know  of  the  original  insertion 
of  the  libel,  might  afterwards  have 
knowingly  and  wilfully  permitted  it  to 
be  printed,  and  so  have  been  convicted 
in  consequence  of  his  own  criminal  act, 
and  not  of  that  of  the  defendant.  But, 
during  the  argument,  the  question, 
whether  a  newspaper  proprietor,  convict- 
ed  and  fined  in  consequence  of  the  pub- 
lication of  a  libel  by  his  editor  without 
his  knowledge  or  consent,  could  main- 
tain an  action  for  indemnity,  was  elabo- 


rately discussed  at  the  bar,  and  tlie  court 
in  delivering  judgment,  expressed  a 
strong  opinion  that  he  could  not.  "  I  am 
not  aware,"  said  Lord  Lyndhurst,  C.  B., 
"of  any  case  in  which  a  man  convicted 
of  an  act  declared  by  law  to  be  criminal, 
and  punished  for  it  accordingly,  has  been 
suffered  to  maintain  an  action  against 
the  party  who  participated  with  him  in 
the  offence,  in  order  to  procure  indem- 
nity for  the  damages  occasioned  by  that 
conviction  ;  but  after  hearing  the  argu- 
ment, I  entertain  little  or  no  doubt  that 
such  an  action  could  not  be  maintained." 
(See  Shackell  v.  Rosier,  2  Bing.  N.  C. 
GM.) 

Perhapi!  tjiis  case  may  be  thought  to 
involve  considerable  *hardship.  r  ,.,.-,  -, 
The  proprietor  of  a  newspaper  is,  '-  ^""'^ 
for  the  security  of  the  public,  rendered 
the  single  exception  to  that  otherwise 
universal  rule  of  law,  that  a  master  shall 
not  be  criminally  responsible  for  the  act 
of  his  servant,  done  without  his  know- 
ledge or  authority.  See  Rex  v.  Gutch, 
M.  &L  M.  433.  His  liability  to  the  in- 
dictment is,  as  Lord  Lyndhurst  express- 
ed it,  "an  anomaly."  Admitting  that 
it  would  also  be  an  anomaly,  that  a  man 
convicted  of  a  crime  should  recover  in- 
demnity :  still,  if  one  anomaly  be  per- 
mitted in  the  law  in  order  to  convict 
him,  may  not  another  anomaly  be  intro- 
duced in  order  to  indemnify  him  ]  It  is 
hard  to  consider  the  case  anomalous  as 
against  the  proprietor,  and  refuse  to  treat 
it  as  such  in  his  favour.  If  there  be  one 
case  only  in  which  a  man,  morally  inno- 
cent, may  be  convicted  of  a  crime,  should 
there  not  be  a  corresponding  exception 
to  the  rule  which  debars  persons  so  con- 
victed from  indemnity?  It  has  been  said 
that  his  liability  to  the  indictment  pro- 
ceeds upon  the  ground  that  the  law  pre- 
sumes him  to  be  cognizant  of  the  libel. 
In  presumplione  juris  consislit  cequitas. 
But  what  equity  is  there  in  continuing 
such  a  presumption  after  its  object, 
namely,  the  protection  of  the  public,  has 
been  satisfied?  And  that,  too,  when  the 
effect  of  doing  so  is  to  exempt  the  person 
morally  guilty  from  punishment,  at  the 
expense  of  the  person  morally  innocent, 
for  the  defendant  in  the  action  for  in- 
demnity must  always  be  one  who  has 
published  the  libel  knowingly,  wilfully, 
and  without  the  knowledge  or  consent  of 
the  proprietor.  [In  Campbell  v.  Camp- 
bell, 7  Clark  &  Finnelly,  181,  it  appear- 
ed that  the  appellant  and  respondent  and 
others  were  partners  in  a  distillery,  and 


202 


SMITH    S     LEADING    CASES. 


tliat  in  the  course  of  certain  illegal  trans- 
actions which  took  place  in  the  manage- 
ment of  the  distillery  by  one  of  the  part- 
ners, the  whole  firm,  including  the  pur- 
suer, though  absent  and  ignorant  of  the 
delict,  became  liable  to  penalties.  A 
prosecution  was  commenced,  and  the 
firm,  including  the  pursuer,  consented  to 
a  verdict  against  them  for  3000^.  penal- 
ties. The  pursuer,  after  payment  of 
the  penalty,  brought  the  action  for  an 
indemnity,  which  was  opposed  inter  alia 
on  the  ground  that  he  was  particeps 
criminis,  and  therefore  disentitled;  and 
Colburn  v.  Patmore,  supra,  was  cited. 
However,  although  no  decision  was  pro- 
nounced upon  the  point,  Lord  Cotten- 
ham,  C,  seems  to  have  thought  it  clear, 
that  the  pursuer,  though  liable  to  the 
penalty,  was  not  particeps  criminis  in 
the  sense  which  would  disentitle  him  to 
sue  for  contribution. 

In  Hunter  v.  Hunt,  1  C.  B.  300,  an 
unsuccessful  attempt  was  made  to  ex- 
tend the  limits  of  the  action  for  contribu- 
tion. In  that  case,  the  plaintiff  and  de- 
fendant were  underlessees  by  different 
l*79hl  ^^^^^^  ^^^  *o^  distinct  parcels  of 
L  J  premises,  held  under  one  original 
lease  at  an  entire  rent,  which  being  in 
arrear  and  paid  by  the  plaintiff  under  a 
threat  of  distress,  he  brought  his  action 
against  the  defendant  to  recover  a  con- 
tribution proportionate  to  his  interest,  as 
for  money  paid  to  his  use.  The  Court  of 
Common  Pleas,  however,  held  the  action 
not  maintainable.] 

Under  the  saise  principle,  viz.,  that  a 
previous  request,  and  a  promise  to  in- 
demnify, will  be  implied  in  favour  of  a 
plaintiff,  who  has  been  compelled  to  do 
that  to  which  the  defendant  was  legally 
compellable,  may  be  ranked  the  cases  in 
which  a  tenant,  who  has  been  forced  to 
pay  some  demand  to  which  the  landlord 
was  primarily  liable,  has  been  held  enti- 
tled to  deduct  the  amount  from  his  rent, 
or  to  recover  it  again  from  the  landlord, 
as  money  paid  to  his  use.  {See  Cald- 
well v.  Moore,  1  Jones,  58.]  Such  was 
Taylor  v.  Zamira,  6  Taunt.  524;  that 
r  *73  1  ^^^^  ^"  action  of  replevin,  in  which 
'•  -•  the  ^defendant  made  cognizance 
as  bailiff  of  Carpue  for  8^.  15s.,  being  a 
quarter's  rent,  under  a  demise  at  35^ 
per  annum.  The  plaintiff  pleaded  in 
bar,  that,  before  that  demise,  Ilidout  and 
Tothill  were  seised  each  of  an  undivided 
fourth  part  of  the  premises,  and  severally 
demised  the  same  for  terms  of  99  years 
to  S,    S.    Still;  who  assigned  them  to 


Tucker ;  who,  before  the  demise  by  Car- 
pue, and  before  that  person  had  any  in- 
terest in  the  premises,  granted  an  annu- 
ity of  102Z.  16s.  per  annum,  issuing  out 
of  the  said  two  undivided  fourth  parts,  to 
Mary  Knowles,  with  power  of  distress; 
that  afterwards,  and  before  the  time 
when,  &c.,  a  sum  exceeding  the  arrears 
mentioned  in  the  cognizance,  viz.  205Z. 
12s..  fell  due  to  M.  Knowles,  who  de- 
manded payment  from  the  plaintiff,  and 
threatened  to  distrain  on  him;  where- 
upon, in  order  to  prevent  his  goods  from 
being  distrained,  the  plaintiff  paid  8/.  15s. 
(the  rent  mentioned  in  the  cognizance) 
in  part  payment  of  the  annuity.  The 
plea  was  held  good :  Gibbs,  C.  J.,  re- 
marking, that  Sapsford  v.  Fletcher,  4  T. 
R.  .511,  was  decisive  that  a  tenant, 
threatened  with  distress  for  rent  due  to 
a  superior  landlord,  might  pay  it,  and  de- 
duct the  payment  from  his  own  rent; 
that  the  only  difference  was,  that  there 
his  immediate  lessor  was  personally  lia- 
ble to  that  rent,  and  that  here  the  land 
only  was  liable,  but  that  nothing  could 
turn  on  that  distinction.  And  Burrough, 
J.,  said,  that  had  the  payment  by  the 
plaintiff  exceeded  the  rent  due  from  him, 
he  might  have  brgught  assumpsit  against 
defendant  for  the  surplus.  In  Sapsford 
V.  Fletcher,  4  T.  R.  511,  above  referred 
to,  tenant,  to  an  avowry  for  rent  arrear, 
pleaded  a  payment,  under  threat  of  dis- 
tress, of  ground-rent  to  the  superior  land- 
lord. It  was  urged,  1st,  that  this  amounted 
to  a  set-off,  and  was  not  pleadable  in  reple- 
vin ;  2nd,  that  this  was  a  payment  by  the 
tenant  in  his  own  wrong,  for  that  no  man 
can  make  another  his  debtor,  b;^  volun- 
tarily paying  the  debt'  of  that  other. 
But  the  court  said,  it  was  not  set-off,  but 
a  payment;  and  that  the  payment  was 
not  voluntary,  but  compulsory,  for  it  was 
made  under  threat  of  distress,  which  the 
superior  landlord  had  it  in  his  power  to 
levy.  [In  Johnson  v.  Jones,  9  A.  &  E. 
809,  the  same  principle  was  applied  to  a 
payment  of  interest  due  upon  a  mort- 
gage prior  to  the  lease  ;  though  in  Boo- 
dle V.  Cambell,  8  Scott.  N.  R.  104,  -a 
payment  by  a  tenant  of  a  proportional 
part  of  the  rent  to  a  person  claiming 
part  of  the  demised  premises  by  title  pa- 
ramount to  the  landlord,  and  who  de- 
manded the  rent  after  it  fell  due,  so  that 
there  was  nothing  in  the  case  that  could 
be  considered  as  an  eviction,  was  held 
no  answer  to  the  landlord's  action  for 
rent,  not  being  a  payment  of  any  charge 
upon  the  land,  or  of  any  debt  due  from 


LAMPLEIGH     V.    B  R  A  T  H  W  A  I  T. 


203 


the  landlord.  In  Baker  v.  Greenhill,  3 
Q.  B.  148,  it  was  holden  that  where 
lands  charged  with  the  repair  of  a 
bridge  were  occupied  by  a  person,  not 
the  owner,  such  occupier,  although  pri- 
marily responsible  to  the  public  for  the 
repairs,  was  entitled  to  reimbursement 
from  the  owner.]  Nor  is  it  necessary, 
for  the  purpose  of  rendering  the  payment 
one  by  compulsion,  that  the  superior  lord 
should  actually  threaten  to  distrain ; 
for  a  demand  by  one  who  has  power 
to  distrain  is  equivalent  to  a  threat  of 
distress ;  and  such  a  payment,  to  use 
the  words  of  Best,  C.  J.,  is  no  more  vol- 
untary than  a  donation  to  a  beggar  who 
presents  a  pistol.  Carter  v.  Carter,  5 
Bing.  406.  [Ace.  Pitt  v.  Purssord,  §  M. 
&.  W.  538.]  It  was  stated,  as  has  been 
already  observed  by  Burrough,  J.,  in 
Taylor  v.  Zamira,  that,  if  the  payment 
made  by  the  tenant  to  the  head  landlord 
had  exceeded  the  sum  due  from  him  to 
his  lessor,  he  might  have  sued  his  lessor 
in  assuinpsit  for  the  surplus.  This  is  a 
corollary  from  the  general  rule  we  are 
discussing,  viz.  that  if  A.  be  compelled 
to  pay  the  debt  which  B.  is  legally  com- 
pellable to  satisfy,  A.  may  sue  B.  for  the 
amount,  and  the  law  implies  a  previous 
request  from  B.  to  A.,  to  pay  the  debt, 
and  a  subsequent  promise  to  reimburse 
him.  [It  seems  unnecessary  that  there 
should  even  be  a  demand  by  the  person 
to  whom  the  money  is  paid,  if  there  be 
in  him  a  legal  right,  by  the  exercise  of 
which  the  person  who  pays  may  be  dam- 
nified, unless  he  satisfy  it.  Broughton's 
case,  5  Rep.  24  a,  seems  to  support  that 
proposition,  and  with  an  excellent  rea- 
son, from  18  E,  4,  27  b,  namely,  "  that 
terror  of  suit,  so  that  he  dare  not  go 
about  his  business,  is  a  damnification, 
although  he  be  not  arrested  or  forced  by 
process,"  &c.  See  also  Pitt  v.  Purs- 
sord, 8  M.  &  W.  538.]  Indeed,  in 
Schlencker  v,  Moxey,  3  B.  &  C.  789, 
where  a  lessee  by  deed,  who  had  been 
distrained  upon  for  ground-rent,  declared 
against  his  lessor,  on  an  implied  promise 
to  indemnify,  it  was  held  that  the  cove- 
nant of  quiet  enjoyment  by  the  word  de- 
mise excluded  such  an  implication. 
[And  the  word  grant  has  been  held  to 
have  a  similar  effect,  and  to  exclude  the 
tenant's  right  to  sue  for  money  paid ; 
Baber  v.  Harris,  9  A  &  E.  532;  quaere 
since  7  &.  8  Vict.  c.  76,  s.  6,  and  8  &,  9 
Vict.  c.  106,  s.  4.  But  these  cases  are 
exceptions  to  the  general  rule,  see  ante 
page  70  c]     In   Moore   v.  Pyrke,  II 


East,  53,  the  general  principle  was  not 
disputed;  but  the  action  failed,  because 
the  plaintiff"  instead  of  paying  the  rent 
to  the  superior  landlord,  had  suffered 
his  goods  to  be  distrained  and  sold,  so  that 
in  fact,  he  never  had  paid  any  money  to 
the  defendant's  (his  lessor's)  use ;  and, 
as  the  declaration  was  for  money  paid, 
he  failed ;  [a  reason  which  seems  not  to 
have  been  approved  of  by  the  Court  of 
Exchequer  in  the  case  of  Rodgers  v. 
Maw,  15  M.  &  W.  444,  where  the  goods 
of  a  joint  contractor  were  taken  under 
a  fieri  facias].  But  in  Exall  v.  Part- 
ridge and  others,  8  T.  R.  308,  the  plain- 
tiff", a  stranger,  placed  his  carriage  on 
premises  which  the  defendant  and  two 
others  rented  from  Welch  for  a  term  of 
years;  the  other  two  had  transferred 
their  interest  to  their  co-lessee;  but 
there  was  a  covenant  by  all  three  to  pay 
rent,  so  that  all  continued  liable  to 
Welch,  the  head  landlord.  Welch  hav- 
ing distrained  the  carriage  for  rent,  the 
plaintiff"  paid  the  arrears,  in  order  to  re- 
lease it,  and  was  allowed  to  recover  the 
amount  from  the  defendants  in  an  action 
of  assumpsit*  for  money  paid.  r^-jAi 
"  One  person,"  said  Lawrence,  J.,  '-  -' 
in  his  judgment  in  that  case,  "cannot 
by  a  voluntary  payment  raise  an  assump- 
sit against  another;  but  here  was  a  dis- 
tress for  rent  due  from  the  three  defen- 
dants, the  notice  of  distress  expressed 
the  rent  to  be  due  fro7n  them  all,  the 
money  was  paid  by  the  plaintiff'  in  satis- 
faction of  a  demand  on  all,  and  it  was 
paid  by  compulsion;  therefore,  I  am  of 
opinion  that  this  action  may  be  main- 
tained against  the  three  defendants. 
The  justice  of  the  case,  indeed,  is  that 
the  one  who  must  ultimately  pay  this 
money  should  alone  be  answerable  here. 
But  as  all  the  three  defendants  were  li- 
able to  the  landlord  for  the  rent  in  the 
first  instance,  and  as,  by  this  payment 
made  by  the  plaintiflf,  all  the  three  were 
released  from  the  demand  of  rent,  I 
think  that  this  action  may  be  supported 
against  all  of  them." 

The  above  words  are  printed  in  italics, 
because  there  is  a  distinction  between 
this  case  and  the  case  where  one  person 
is  compelled  to  make  a  payment,  to 
which  another  is  liable,  not,  however, 
primarily,  but  only  in  consequence  of  a 
special  agreement  with  the  party  who  is 
forced  to  make  it;  the  remedy  in  such 
case  not  being  on  any  implied  assumpsit, 
but  on  the  special  agreement  itself:  thus 
in  Spencer  v.  Parry,  3  Adol.  &,E1I.  331, 


204 


smith's   leading    cases. 


the  defendant  took  a  house  from  tlie 
plaintiff,  and  agreed  to  paj'  certain 
taxes,  which  were  by  statute  payable 
by  the  landlord.  The  plaintiff,  having 
been  compelled  to  pay  these  taxes  in 
consequence  of  the  defendant's  default, 
brougiit  an  action  of  debt  for  money  paid 
against  him.  It  was  objected  that  he 
ought  to  have  sued  upon  the  special 
agreement,  and  the  court  held  the  ob- 
jection fatal.  "The  plaintiff's  pay- 
ment," said  the  Lord  Chief  Justice,  de- 
livering judgment,  "  delivered  the  defen- 
dant y?'o?n  710  liability  but  what  arose 
from  the  contract  between  them,  the  tax 
remained  due  by  his  default,  which  would 
give  a  remedy  on  the  agreement,  but  it 
10 as  paid  to  one  who  had  no  claim  upon 
him,  and  therefore  not  to  his  use.''''  Ac- 
cord. Lubbock  v.  'I'ribe,  3  M.  &  Welsh. 
COT,  which  was  decided  on  the  authority 
of  Spencer  v.  Parry.  In  Lubbock  v. 
Tribe,  the  defendant  gave  a  cheque  for 
money  due  from  him  to  the  K.  Co. ;  the 
plaintiffs  received  it  as  the  company's 
agents;  it  was  afterwards  lost,  and  the 
plaintiffs  agreed  with  the  defendant  that 
he  should  give  them  a  new  cheque  on 
their  giving  him  an  indemnity.  No  new 
cheque  was  given ;  but  the  plaintiffs 
having  been  obliged  to  pay  the  amount 
to  the  company,  brought  an  action  against 
the  defendant  for  money  paid,  which 
was  held  not  to  be  sustainable.  "On 
the  special  agreement,"  said  Parke,  B., 
"I  think  an  action  might  be  maintained, 
but  not  for  money  paid,  because  the  pay- 
ment of  the  money  does  not  exonerate 
the  defendant  from  any  liability  at  all. 
It  is  not  money  paid  to  his  use,  it  is 
money  paid  to  the  plaintiff's  own  use, 
who  are  bound  to  make  good  the  amount 
to  the  K.  Company."  But  in  a  previous 
case,  in  which  the  compulsory  payment 
was  made  in  discharge  of  a  party,  who, 
though  not  primarily  liable,  was  ulti- 
mately so,  not  by  any  special  agreement, 
but  by  the  provisions  of  an  act  of  parlia- 
ment, it  was  decided,  that  the  party 
compelled  to  make  the  payment  might 
recover  on  an  implied  assumpsit.  In 
Dawson  v.  Linton,  5  B.  &  A.  521,  goods 
of  the  plaintiff,  an  outgoing  tenant,  left 
by  him  on  his  farm,  were  distrained  for 
a  tax  payable  by  the  tenant,  but  which 
the  act  gave  him  power  to  deduct  from 
his  rent:  the  court  decided,  that,  as  the 
lax  must  ultimately  fall  on  the  landlord, 
and  as  the  plaintiff  had  been  compelled 
to  pay  it  in  order  to  ransom  his  goods,  he 
had  a  right  to  recover  the  amount  from 


the  landlord,  as  money  paid  to  his  use.  It 
may,  perhaps,  be  thougiit,  that  the  pay- 
ment in  this  case  is  liable  to  the  conclud- 
ing observation  of  the  court  in  Spencer 
v.  Parry,  that  "i<  teas  made  to  one  who 
had  no  claim  upon  the  defendant,  and 
therefore  not  to  his  use."  But  though, 
in  Dawson  v.  Linton,  there  was  no  claim 
for  the  tax  against  the  defendant  personal- 
ly, there  was  a  claim  against  the  land 
which  was  his  property ;  nay,  there  was 
one  contingency,  viz.  that  of  there  being 
no  sufficient  distress,  in  which  the  act  pro- 
vided that  the  land  itself  might  be  seized 
quousque  for  the  arrears  due;  and  Tay- 
lor v.  Zamira  shows  that  a  claim  against 
a  man's  property  is  equivalent,  for  this 
purpose, to  one  against  his  person;  but, 
in  Spencer  v.  Parry,  the  defendant  had 
quitted  the  premises,  so  that  neither  he 
nor  his  property  could  have  been  molest- 
ed on  account  of  the  tax,  at  the  time 
when  the  plaintiff'  paid  it.  [The  doc- 
trine laid  down  in  Spencer  v.  Parry  is 
obviously  inapplicable  to  the  case  where 
a  liability  has  been  incurred  at  the  re- 
quest of  the  defendant,  and  in  conse- 
quence of  incurring  such  liability,  the 
plaintiff  has  been  put  to  expense;  be- 
cause, in  such  a  case,  the  payment  has 
in  truth  been  made  in  consequence  of 
the  request  of  the  defendant,  and  it  is 
immaterial  whether  it  has  relieved  the 
defendantfrom  a  liability  or  not.  Brit- 
tain  v.  Lloyd,  14  M.  &  VV.  762.] 

Here  we  must  not  omit  to  remark, 
that  there  is  a  peculiarity  in  the  right  of 
the  tenant  to  recoup  himself  for  moneys 
paid  in  the  discharge  of  some  burden 
upon  the  land  prior  to  his  own  interest 
therein,  which  distinguishes  that  from 
all  other  cases  of  compulsory  payment 
to  the  use  of  another.  Such  payments 
when  made  by  a  tenant  under  compul- 
sion, are  considered  as  actual  fayments 
of  so  much  of  his  rent,  and  may  be 
pleaded  by  way  of  payment,  as  contra- 
distinguished from  set-off;  (see  Taylor 
V.  Zamira  and  Sapsford  v.  Fletcher,  su- 
pra, [and  Johnson  v.  Jones,  9  A.  «Si  E. 
809] ;)  whereas,  generally  speaking,  one 
who  has  been  compelled  to  pay  the  de- 
mand to  which  another  is  liable,  although 
he  may  recover  the  amount  in  assuinp- 
sit,  or  set  it  off  in  an  action  against 
himself,  cannot  appropriate  *it  to  r^-jr:;-] 
the  payment  of  a  debt  due  by  ^  -• 
him  to  the  person  to  whose  use  he  paid 
it,  without  obtaining  that  person's  con- 
sent; the  fact  is,  that,  in  cases  of  land- 
lord  and   tenant,  the   very  relation   in 


LAMP  LEI  an     V.    BRATHWAIT. 


205 


which  the  parties  stand  to  eacli  otlier 
creates  an  implied  consent,  upon  tlie 
landlord's  part,  that  the  tenant  shall  ap- 
propriate such  part  of  his  rent  as  shall 
be  necessary  to  indemnify  him  against 
prior  charges,  and  that  the  money 
so  appropriated  shall  be  considered  as 
paid  on  account  of  rent;  but  this  impli- 
cation is  liable  to  be  rebutted,  for  if  the 
landlord  were  afterwards  to  repay  the 
tenant  the  money  paid  by  him  in  respect 
of  the  charge,  he  might  recover  the  entire 
rent,  eo  nomine,  without  any  deduction. 
All  this  is  well  explained  by  Buller,  J.,  in 
Sapsford  V.  Fletcher.  "There  is  great 
difference,"  says  his  Lordship,  "between 
a  payment  and  a  set-off";  the  former  may 
be  pleaded  lo  an  avowry,  though  the 
latter  cannot.  That  is  a  good  payment 
which  is  paid  as  part  of  the  rent 
itself  in  respect  of  the  land,  but  a 
set-off" supposes  adiff"erent  demand,  aris- 
ing in  a  dift'erent  right.  It  was  said, 
that  if  the  tenant  had  paid  the  ground- 
rent,  and  the  landlord  had  afterwards 
repaid  him,  the  latter  could  not  avow 
for  the  whole  rent ;  and  my  answer  is 
this,  that  the  payment  there  never  was 
considered  by  both  as  a  payment,  and,  if 
not,  the  whole  rent  remains  due.  I 
consider  this  case  as  a  lease  from  the 
defendant  to  the  plaintiff",  at  the  annual 
rent  of  50Z.,  out  of  which  bl.  per  annum 
was  to  be  paid  to  the  ground  landlord  ; 
and  therefore  a  payment  of  that  ground- 
rent  is  a  payment  of  so  much  rent  to 
the  defendant,  and  may  be  pleaded  in 
answer  to  the  avowry  for  rent.  Neither 
can  we  suppose,  upon  this  record,  that 
the  defendant  ever  repaid  the  plaintiff" 
this  ground-rent,  for,  if  he  had,  he  might 
have  replied  that  fact."  The  landlord, 
therefore,  generally  speaking  (for  in 
some  cases  it  is  taken  from  him  by  sta- 
tute), has  the  option  of  repaying  the 
tenant  the  sum  disbursed  by  him  to  dis- 
charge the  prior  claim  upon  the  land, 
and  may  thus  prevent  the  disbursement 
from  being  considered  as  a  payment  of 
so  much  of  the  rent;  and  the  tenant 
may,  in  like  manner,  elect  not  to  consi- 
der it  as  such,  and  may  signify  his  elec- 
tion by  bringing  an  acticii  for  the 
amount,  or  setting  it  oft"  in  an  action 
brought  by  his  landlord  against  him  for 
any  other  debt.  And,  indeed,  in  some 
cases  he  must  do  so;  for,  if  he  owe  no 
rent,  or  not  enough  to  cover  the  sums 
he  has  been  forced  to  pay,  he  has  no 
other  means  of  reimbursing  himself 
{In  the  recent  case  of  Graham  v,  All- 


gopp,  3  Exch.  18(1,  198,  Rolfe,  B.,  deli- 
vering judgment,  explained  at  full  the 
principle  here  discussed.  Referring  to 
tSapsford  v.  Fletcher,  Taylor  v.  Zamira, 
and  Carter  v.  Carter,  he  said,  "Those 
cases  establish  the  proposition,  that  a 
tenant  who  has  been  compelled  by  a  su- 
perior landlord  or  other  encumbrancer 
having  a  title  paramount  to  that  of  his 
immediate  landlord,  to  pay  sums  due  for 
ground  rent  or  other  like  charges,  may 
treat  such  payment  as  having  been  made 
in  satisfaction  or  part  satisfaction  of  rent 
due  to  his  immediate  landlord;  and  may 
plead  them  as  far  as  they  extend,  in  bar 
to  an  avowry  for  rent  in  arrear.  The 
principle  upon  which  these  cases  rest  is 
this: — The  immediate  landlord  is  bound 
to  protect  his  tenant  from  all  paramount 
claims;  and  when,  therefore,  the  tenant 
is  compelled,  in  order  to  protect  himself 
in  the  enjoyment  of  the  land  in  respect 
of  which  his  rent  is  payable,  to  make 
payments  which  ought,  as  between  him- 
self and  his  landlord,  to  have  been  made 
by  the  latter,  he  is  considered  as  having 
been  authorised  by  the  landlord  so  to 
apply  his  rent  due  or  accruing  due. 
All  such  payments,  if  incapable  of  being 
treated  as  actual  payment  of  rent,  would 
certainly  give  the  tenant  a  right  of  ac- 
tion against  his  landlord  as  for  money 
paid  to  his  use,  and  so  would,  in  an  ac- 
tion of  debt  for  the  rent,  form  a  legiti- 
mate subject  of  set-oft".  And  though  in 
a  replevin  a  general  set-off"  cannot  be 
pleaded,  yet  the  Courts  have  given  to 
the  tenant  the  benefit  of  a  set-oft'  as  to 
payments  of  this  description,  by  holding 
them  to  be  in  fact  payments  of  the  rent 
itself  or  of  part  of  it."  See,  also,  Jones 
v.  Morris,  id.  742,  746. } 

It  is,  however,  necessary  to  remark, 
that  there  are  some  cases  which  qualify 
the  generality  of  the  doctrine  just  laid 
down,  by  compelling  the  tenant  to  avail 
himself  of  his  right  to  deduct  within  a 
given  period,  if  at  all.  The  property-t;ix 
by  46  G.  3,  c.  64,  was  directed  to  be 
paid  by  the  occupier,  who  was  required 
to  deduct  it  out  of  the  next  rent.  In 
Denby  v.  Moore,  1  B.  &  Ad.  130,  the 
plaintiff" occupied  land, and  paid  the  pro- 
perty-tax for  about  twelve  years,  and 
also  paid  the  full  rent  during  that  tmie, 
and  it  was  held  that  he  could  not  recover 
back  again  the  amount  of  rent  thus  over- 
paid. This  case,  indeed,  was  decided 
upon  grounds  not  much  akin  to  the  sub- 
ject of  this  note,  for  the  action  was  for 
money  had  and  received  to  recaver  back 


206 


SMITHS  LEADING  CASES. 


the  rent  over-paid,  not  for  money  paid 
to  the  defentlant's  use  on  account  of  pro- 
perty-tax. And  the  court  thought  that, 
as  the  occupier  had  made  the  over-pay- 
ments with  full  knowledge  of  the  facts, 
he  could  not  recover  them  back  again  ; 
besides,  the  words  of  the  act  were  ex- 
press, requiring  the  occupier  to  deduct 
the  tax  from  the  rent  next  due,  and  there 
were  good  reasons  for  insisting  on  his 
doing  so.  And,  therefore,  in  Stubbs  v. 
Parsons,  Bayley,  J.,  said,  "  that  he  laid 
Denby  v.  Moore  out  of  the  question, 
that  decision  being  on  the  express  words 
of  the  property  act,  to  prevent  frauds  on 
the  revenue."  Andrew  v.  Hancock,  1 
B.  &  B.  37,  was,  like  Sapsford  v. 
Fletcher,  an  action  of  replevin,  and  the 
defendant  having  avowed  for  six  months' 
rent  due  the  29th  of  September,  1818, 
the  plaintiff  pleaded  in  bar  various  pay- 
ments of  land-tax  and  paving  rates  made 
to  prevent  his  goods  from  being  dis- 
trained between  1812  and  1818,  while 
he  was  tenant  to  the  defendant,  which 
payments  he  claimed  to  deduct  from  the 
rent  avowed  for.  The  plea  was  decided 
to  be  bad ;  principally,  however,  upon 
the  express  words  of  the  acts  of  parlia- 
ment, by  which,  to  use  the  words  of 
Dallas,  C.  J.,  the  tenant  was  not  only 
alloioed,  but  required,  to  deduct  these 
payments  out  of  the  rents  of  the  then 
r^  _P  -.  current  *years.  In  Stubbs  v. 
I  '"  -I  Parsons,  3  B.  &.  Ad.  516,  a  simi- 
lar question  again  arose  with  respect  to 
land-tax,  that  also  was  an  action  of  re- 
plevin, cognizance  for  a  quarter's  rent 
due  the  25th  of  March,  1819.  The 
plaintiff  pleaded  a  tender  as  to  part,  and 
as  to  the  residue,  that  before  the  25th  of 
March,  and  before  the  said  time  when,  &c. 
divers  sums,  amounting  to  the  residue, 
had  been  from  time  to  time  assessed  on 
the  premises  for  land-tax,  which  he  had 
been  compelled  to  pay.  On  demurrer 
the  plea  was  held  bad,  because  it  did 
not  state  when  the  land-tax  claimed  to 
be  deducted  was  assessed  or  paid  ;  and 
it  was  consistent  with  the  plea  that  it 
might  have  been  a  payment  for  land-tax 
due  before  the  rent  distrained  for  either 
accrued,  or  was  accruing,  or  even  before 
the  commencement  of  the  present  land- 
lord's title.  "The  ground,"  said  Bayley, 
J.,  "  on  which  my  judgment  proceeds 
is,  that  a  payment  of  the  land-tax  can 
only  be  deducted  out  of  the  rent  which 
has  then  accrued,  or  is  then  accruing, 
due,  for  the  law  considers  the  payment 
of  the  land-tax  as  a  payment  of  so  much 


of  the  rent  then  due,  or  growing  due,  tc 
the  landlord.  And  if,  afterwards,  he 
pays  tiie  rent  in  full,  he  cannot  at  a  sub- 
sequent time  deduct  that  over-payment 
from  the  rent.  He  may,  indeed,  recovet 
it  back  as  money  paid  to  the  landlord'' s 
rise"  "The  occupier,"  said  Holroyd, 
J.,  "has  a  lien  on  the  next  rent,  given 
him  by  the  legislature,  for  the  land-tax 
paid  by  him;  but  if  he  parts  with  the 
rent  without  making  the  deduction,  he 
loses  his  lien,  and  has  only  his  remedy 
by  action  or  set-off."  [The  same  rule 
has  been  applied  to  payments  of  pro- 
perty-tax. Gumming  v.  Bedborough,  15 
M.  &  W.  438.] 

The  next  question  is,  whether  the 
limitation  in  point  of  time  established 
by  these  cases,  with  respect  to  deduc- 
tions of  land-tax,  applies  to  deductions 
in  respect  of  rent  paid,  under  dread  of 
distress,  to  the  superior  landlord,  or  in 
respect  of  arrears  of  a  rent-charge.  In 
order  to  'solve  this  question  we  cannot 
have  recourse,  as  in  case  of  taxes,  to  the 
express  words  of  the  legislature;  we 
must,  therefore,  resort  to  principles  of 
common  sense  and  general  convenience. 
And  it  seems  not  unreasonable,  that  if  a 
tenant,  having  made  such  payments,  fail 
to  deduct  at  the  next  opportunity,  he 
should  be  taken  to  have  abandoned  his 
right  to  do  so,  and  to  have  elected  to 
rely  upon  his  right  of  action  for  money 
paid  to  the  landlord's  use;  and,  indeed, 
Park,  J.,  in  Carter  v.  Carter,  5  Bing. 
409,  410,  appears  to  have  considered 
that  this  point  was  decided  by  Andrew 
v.  Hancock,  to  which  he  refers  as  to  a 
case  of  ground-rent.  Yet  it  would  be 
hard  to  preclude  the  tenant  from  deduct- 
ing from  any  rent  not  actually  due  or 
accruing  at  the  time  of  his  making  the 
payments  in  respect  of  which  he  claims 
the  right  of  deduction ;  for  the  arrears 
of  rent-charge  or  head-rent  may  be  ex- 
tremely heavy,  and  may  cover  much 
more  than  the  amount  of  the  rent  then 
due  or  accruing  from  him  to  his  landlord. 
In  order,  therefore,  to  do  full  justice,  he 
ought  to  be  allowed,  after  making  such 
a  payment,  to  retain  the  rent  for  as  many 
succeeding  rent-days  as  may  be  neces- 
sary to  place  him  in  statu  quo,  for  he 
cannot  prescribe  to  the  head  landlord  or 
incumbrancer  when  to  insist  on  payment, 
and  therefore  ought  not  to  suffer  by 
their  delay. 

But  it  seems  reasonable,  that  the  te- 
nant's right  to  deduct  should  only  exist 
in  respect  of  payments  made  by  him  of 


CHANDELOR    V.   LOPUS. 


207 


arrears  which  accrued  due  in  the  time 
of  the  landlord  against  whom  he  claims 
'the  deduction.  Suppose,  for  instance, 
premises  be  let  for  100^.  a  year,  and  sub- 
ject to  a  head-rent  of  101.  a  year,  of 
which  five  years  are  in  arrear  when  the 
mesne  landlord  assigns  his  reversion : 
upon  the  sixth  year  falling  due  the  head 
landlord  threatens  to  distrain,  and  the 
tenant  is  obliged  to  pay  him  sixty 
pounds:  shall  he  deduct  the  whole  of 
that  sum  from  his  current  year's  rent, 
or  only  the  lOZ.  which  fell  due  during 
his  present  landlord's  time'?  It  would 
be  hard  upon  the  assignee  to  adopt  the 
former  part  of  this  alternative. 


The  right  to  deduct  a  payment  in  re- 
spect of  ground-rent  has  not  been  con- 
fined to  tenants,  for  in  Doe  v.  Hare,  4 
Tyrwh.  29,  the  plaintiff,  having  reco- 
vered in  ejectment,  on  a  demise  from 
the  5th  of  June,  1830,  brought  an  action 
for  the  mesne  profits  between  that  day 
and  the  4th  of  June,  1832,  when  the 
sheriff  executed  the  ha.  fa.  po.  The  de- 
fendant was  allowed,  in  reduction  of 
damages,  a  payment  in  respect  of 
ground-rent  which  had  become  due  the 
24th  of  June,  1830,  and  also  two  other 
payments  of  ground-rent  which  fell  due 
during  his  occupation. 


*CHANDELOR    v.    LOPUS. 


[=^77] 


[REPORTED,  2  CROKE,  2.] 
PASCHiE.— 1  JACOBI  1. 

The  defendant  sold  to  the  plaintiff  a  stone:  which  he  affirmed  to  be  a  Bezoar 
stone,  but  which  proved  not  to  be  so.  No  action  lies  against  him,  unless  he 
either  knew  that  it  was  not  a  Bezoar  stone,  or  warranted  it  to  be  a  Bezoar 
stone. 

Action  upon  the  case :  whereas  the  defendant,  being  a  goldsmith,  and 
having  skill  in  jewels  and  precious  stones,  had  a  stone,  which  he  affirmed  to 
Lopus  to  be  a  Bezoar  stone,  and  sold  it  to  him  for  a  hundred  pounds ; 
ubi,  reverd,  it  was  not  a  Bezoar  stone. 

The  defendant  pleaded,  Not  guilty. 

After  verdict,  and  judgment  for  the  plaintiff  in  the  King's  Bench,  error 
was  therefore  brought  in  the  Exchequer  Chamber ;  because  the  declaration 
contains  not  matter  sufficient  to  charge  the  defendant,  viz.,  that  he  war- 
ranted it  to  he  a  Bezoar  stone,  or  that  he  Icneio  that  it  v;as  not  a  Bezoar 
stone  ;  for,  it  may  be,  that  he  himself  was  ignorant  whether  it  were  a  Bezoar 
stone  or  not. 

And  all  the  Justices  and  Barons  (besides  Anderson)  held,  that  for  this 
cause  it  was  error.  For  the  bare  affirmation,  that  it  was  a  Bezoar  stone, 
without  warranting  it  to  be  so,  is  no  cause  of  action.  And  although  he 
knew  it  to  he  no  Bezoar  stone  it  is  not  material.*     For  every  one,  in  selling 


This  proposition  which  was  not  necessary  to  the  decision  has  often  been  denied.   See 


208 


SMITHS  LEADING  CASES. 


of  Lis  wares,  will  affirm  that  bis  wares  are  good,  or  tlie  horse  that  he  sells 
is  sound  :  yet,  if  he  warrants  them  not  to  be  so,  it  is  no  cause  of  action. 
And  the  warranty  ought  to  be  made  at  the  same  time  as  the  sale.*  Fitz. 
Nat.  Brev.  94  c.  &  98  b. ;  5  H.  7,  41 ;  9  II.  6,  53 ;  12  H.  4,  1 ;  42  Ass. 
r  if-y  -|  g-  "^ ;  '''  II-  '^}  I^-  Wherefore  forasmuch  as  no  warranty  is  *alleged, 
L  '  -^  they  held  the  declaration  to  be  ill.  But  Anderson  to  the  contrary ; 
for  the  deceit  in  selling  it  for  a  Bezoar,  whereas  it  was  not  so,  is  cause  of 
action.  But  notwithstanding  it  was  adjudged  to  be  no  cause,  and  judgment 
was  reversed. 


If  the  plaintiff  in  this  case  were  to 
declare  upon  a  warranty  of  the  stone, 
he  would  at  the  present  day  perhaps 
succeed,  the  rule  of  law  being  that 
every  affirmation  at  the  time  of  sale  of 
personal  chattels  is  a  warranty,  provi- 
ded it  appears  to  have  been  so  intended. 
See  Power  v.  Barham,  4  Ad.  &  E.  473; 
Shepherd  v.  Kain,  5  B.  &  A.  240;  Free- 
man V.  Baker,  2  Nev.  &.  Mann.  446. 
[Even  where  there  is  a  written  memo- 
randum not  relating  to  the  subject-mat- 
ter of  the  representation;  Allen  v.  Pink, 
4  M.  &  W.  140.  See  Wright  v.  Crookes, 
Scott,  N.  R.  685 ;  Jeffrey  v.  Walton,  1 
Stark.  267.]  If  not,  he  would  at  all 
events  succeed,  if  he  were  to  sue  in  tort, 
laying  a  scienter,  since  the  fact  of  the 
defendant's  being  a  jeweller  would  be 
almost  irresistible  evidence  that  he  knew 
his  representation  to  be  false.  When 
Chandelor  v.  Lopus  was  decided,  as  the 
action  of  assumpsit  was  by  no  means  so 
distinguishable  from  case,  ordinarily  so 
called,  as  at  present ;  so  the  distinction 
was  not  then  clearly  recognised,  which 
is  now,  however,  perfectly  established, 
between  an  action  upon  a  warranty  ex- 
press or  implied,  which  is  founded  on 
the  defendant's  promise  that  the  thing 
shall  be  as  warranted,  and  in  order  to 
maintain  which  it  is  unnecessary  that 
he  should  be  at  all  aware  of  the  falla- 
cious nature  of  his  undertaking,  and  the 
action  upon  the  case  for  false  representa- 
tion, in  order  to  maintain  which,  the  de- 
fendant must  be  shown  to  have  been  ac- 


tually and  fraudulently  cognisant  of  the 
falsehood  of  his  representation  ;  actions 
of  the  former  description  being  then 
usually  framed  in  tort,  under  the  name 
of  actions  for  deceit.  See  Williamson 
V.  Allison,  2  East,  446.  [Shrewsbury  v. 
Blount,  2  M.  &,  Gr.  475,  2  Scott,  N.  R. 
588,  S.  C] ;  the  observations  of  Grose, 
J.,  in  Pasley  v.  Freeman,  3  T.  R.  54, 
and  of  Tindal,  C.  J.,  in  Budd  v.  Fair- 
maner,  8  Bingh.  53.  Steuartv.  Wilkins, 
Dougl.  18,  is  said  by  Lawrence,  J.,  in  2 
East,  451,  to  have  been  the  frst  case 
where  the  question  was  regularly  dis- 
cussed, and  the  mode  of  declaring  in  as- 
sumpsit established.  However,  the  main 
doctrine  laid  down  in  Chandelor  v.  Lopus 
has  never  since  been  disputed,  viz.  that 
the  plaintiff  must  either  declare  upon  a 
contract,  or,  if  he  declare  in  tort  for  a 
misrepresentation,  must  aver  a  scienter. 
That  such  an  action  is  maintainable 
when  the  scienter  can  be  proved,  though 
there  be  no  warranty,  is  now  (notwith- 
standing the  dictum  in  the  text)  well 
established.  Dunlop  v.  Waugh,  Peake, 
223;  Jeudwine  v.  Slade,  2  Esp,  572; 
Dobell  V.  Stevens,  3  B.  &  C.  625; 
Fletcher  v.  Bovvsher,  2  Star.  561. 

It  is  sometimes  not  very  easy  to  deter- 
mine whether  an  action  of  assumpsit 
upon  a  warranty  should  be  brought 
against  the  vendor  of  a  chattel,  or  whe- 
ther the  proper  remedy  be  by  action 
upon  the  case  tor  misrepresentation.  We 
have  already  observed,  that  every  affir- 
mation respecting  the  chattel,  made,  at 


the  notes  post:  and  the  argument  for  the  plaintiff  in  error  in  this  very  case  admits  the 
contrary. 

*  For,  if  made  afterwards,  there  is  no  consideration  for  it.  Finch,  L.  183.   3  Bl.  Comm. 
166. 


CHANDELOR  V.  LOPUS. 


209 


ihe  time  of  sale,  by  its  vendor,  is  a  war- 
ranty if  so  intended.  Rut  it  is  some- 
times far  from  easy  to  decide,  whether  a 
particular  assertion  was,  or  was  not,  in- 
tended for  a  warranty ;  and,  if  it  turn 
out  to  have  been  meant  merely  for  a  re- 
presentation, the  plaintiff  suing  on  it 
must  aver  a  scienter  in  his  declaration, 
and  must  not  treat  it  as  a  warranty,  but 
will  be  defeated  unless  it  turn  out  to 
have  been  false  within  the  knowledge  of 
the  party  making-  it.  Such  was  the  case 
of  Budd  V.  Fairmaner,  8  Bingh.  52, 
where  the  plaintiif,  in  order  to  prove  the 
warranty,  put  in  the  following  instru- 
ment, signed  by  the  defendant : — "  Re- 
ceived of  Mr.  Budd  10^.  for  a  grey  four- 
year-old  colt,  warranted  sound  in  every 
respect." 

It  was  held  at  Nisi  Prius,  and  after- 
wards by  the  court  in  banc,  that  the 
warranty  applied  only  to  the  soundness, 
and  that  the  age  was  mere  matter  of  de- 
scription, and  the  plaintiff,  who  had 
sued  as  upon  a  warranty  of  the  age,  was 
nonsuited. 

With  respect  to  actions  upon  the  case 
for  a  false  representation,  although  the 
r*7Ql  *declaration  always  imputes  to 
^  -'  the  defendant  fraud,  and  an  in- 
tent to  deceive  the  plaintiff;  and  al- 
though it  is  expressly  laid  down  that 
"  fraud  and  falsehood  must  concur  to 
sustain  this  action,"  per  Gibbs,  C.  J., 
Ashlin  V.  White,  Holt,  387;  still,  in 
order  to  prove  such  fraud  as  the  law  con- 
siders sufficient  to  sustain  the  action,  it 
is  only  necessary  to  show  that  what  the 
defendant  asserted  was  false  within  his 
own  knowledge,  and  occasioned  damage 
to  the  plaintiff  Foster  v.  Charles,  6 
Bing.  896,  7  Bing.  108;  Corbet  v. 
Brown,  8  Bing.  433.  [For  which  pur- 
pose it  must  appear  that  the  plaintift' 
relied  upon  it.  See  Atwood  v.  Small, 
6  CI.  &  F.  232.  Shrewsbury  v.  Blount, 
2  Scott,  N.  R.  588,  2  M.  &  Gr.  475; 
though  it  would  seem,  that  the  fact  of  a 
misrepresentation,  calculated  to  mislead, 
having  been  made,  is  sufficient  prima 
facie  evidence  that  the  plaintiff  was 
misled  by,  and  acted  upon  it.]  In  Pol- 
hill  V.  Walter,  3  B.  &  Adol.  122,  the 
defendant,  who  had  formerly  been  in 
partnership  with  Hancorne,  and  still 
carried  on  business  in  the  same  house, 
accepted,  as  per  procuration  of  Han- 
corne, a  bill  drawn  on  the  latter.  The 
bill  was  afterwards  indorsed  to  the  plain- 
tiff, who  gave  value  for  it,  and  having 
been    dishonoured     by   Hancorne,    the 

Vol.  I.— 14 


plaintiff  sued  the  defendant  for  "  falsely 
and  fraudulently  pretending  to  accept 
the  same  by  procuration  of  Hancorne." 
At  the  trial,  the  jury  being  directed  by 
Lord  Tenterden  to  find  for  the  defend- 
ant if  they  thought  there  was  no  fraud, 
otherwise  for  the  plaintiff,  found  a  ver- 
dict for  the  defendant;  his  Lordship  giv- 
ing the  plamtiff  leave  to  move  to  enter 
a  verdict;  which  motion  was  accord- 
ingly made,  and  the  rule  to  enter  the 
verdict  for  the  plaintifi'  ultimately  made 
absolute. 

"If,"  said  Lord  Tenterden,  deliver- 
ing the  judgment  of  the  court,  "the 
defendant,  when  he  wrote  the  accept- 
ance, and  thereby  in  substance  repre- 
sented that  he  had  authority  from  the 
drawer  to  make  it,  knew  that  he  had  no 
such  authority  (and  upon  the  evidence 
there  can  be  no  doubt  he  did),  the  repre- 
sentation was  untrue  to  his  knowledge, 
and  we  think  that  an  action  Vv^ill  lie 
against  him  by  the  plaintifi' for  the  dam- 
age sustained  in  consequence."  [See 
Pontifex  v.  Bignold,  3  Scott,  N.  R.  390, 
3  Mann.  &  Gr.  63,  S.  C.  The  modern 
cases  upon  the  subject  of  fraudulent 
misrepresentations  are  collected  in  the 
note  to  Pasley  v.  Freeman,  vol.  ii.  p. 
55.] 

The  first  instance  in  which  an  action 
of  tort  for  a  misrepresentation  respect- 
ing the  ability  of  a  third  person  was  so- 
lemnly adjudged  to  be  maintainable,  is 
the  case  of  Pasley  v.  Freeman,  3  T.  R. 
53,  decided  by  Lord  Kenyon,  C.  J.,  Ash- 
urst,  J.,  and  Buller,  J  ,  against  the  opin- 
ion of  Grose,  J.,  a.  d.  1789.  [See  the 
case  at  large,  vol.  ii.  p.  55.]  It  came 
before  the  court  on  motion  in  arrest  of 
judgment,  on  a  declaration,  stating, 
"  that  the  defendant,  intending  to  deceive 
and  defraud  the  plaintiffs,  did  wrongfully 
and  deceitfully  encourage  and  persuade 
them  to  deliver  certain  goods  to  Falcli 
on  credit,  and  for  that  purpose  did  false- 
ly, deceitfully,  and  fraudulently  assert 
that  Falch  was  a  person  safely  to  be 
trusted,  whereas,  in  truth,  Falch  was 
not  a  person  safely  to  be  trusted,  and 
the  defendant  well  knew  the  same." 
One  of  the  consequences  of  its  introduc- 
tion was  to  qualify  considerably  the 
efiect  of  that  enactment  of  the  statute 
of  frauds,  which  requires  that  guaran- 
ties should  be  in  writing:  since  it  fre- 
quently happened,  that  where  one  person 
had  interested  himself  to  procure  credit 
for  another,  in  a  manner  which  would 
have  been  insisted  upon  as  amounting  to 


210 


SMITHS     LEADING     CASES. 


a  guaranty  but  for  tlie  enactment  of  the 
statute  of  frauds,  the  expressions  used 
by  him  in  his  endeavours  to  efTecl  his 
purpose,  were  relied  on  as  representa- 
tions respecting  his  friend's  credit  or 
character,  and  lie  was  accordingly  sued 
in  tlie  form  of  which  Pasley  v.  Freeman 
has  established  the  legitimacy.  It  was 
in  order  to  prevent  the  statute  of  frauds 
from  being  thus  trenched  upon,  that  the 
legislature,  in  9  G.  4,  c.  14,  commonly 
called  Lord  Tenterden's  Act,  enacted 
sec.  0,  "that  no  action  shall  be  main- 
tained, whereby  to  charge  any  person 
upon,  or  by  reason  of,  any  representation 
or  assurance  made  or  given  concerning 
or  relating  to  the  character,  conduct, 
credit,  ability,  trade,  or  dealings  of  any 
otiier  person,  to  the  intent  or  purpose 
that  such  other  person  may  obtain  cre- 
dit, money,  or  goods  upon,  unless  such 
representation  or  assurance  be  made  in 
writing,  signed  by  the  party  to  be 
charged  therewith." 

This  section  of  the  act  was  elaborately 
discussed  in  the  great  case  of  Lydc  v. 
Barnard,  1  J\].  &  W.  101.  It  was  an 
action  on  the  case  for  falsely  represent- 
ing, in  answer  to  inquiries  on  that  sub- 
ject, that  the  life-interest  of  Lord  Ed- 
ward Thynne  in  certain  trust-funds  was 
charged  only  with  three  annuities, 
whereby  the  plaintiff  was  induced  to 
advance  to  the  said  Lord  E.  T.  999Z.  for 
|-;i,-,,^-|  the  purchase  *of  an  annuity,  se- 
'-  -'  cured  by  his  covenant,  bond,  war- 
rant of  attorney,  and  an  assignment  of 
his  life-interest  in  the  said  funds;  where- 
as the  defendant  well  knew  that  the  said 
interest  was  charged  not  only  with  three 
annuities,  but  with  a  mortgage  for 
20,000/.  At  the  trial,  it  appeared  that 
the  false  representation  was  made  by 
parol,  on  which  the  Lord  Chief  Baron 
nonsuited  the  plaintiff,  conceiving  the 
case  to  fall  within  the  9  G.  4,  c.  14,  s. 
6.  On  the  motion  for  a  new  trial,  the 
court  was  equally  divided,  and  the 
learned  barons  delivered  elaborate  opin- 
ions seriatim.  Lord  Abinger  and  Giir- 
ney,  B.,  thought  the  case  within  the 
statute,  conceiving  the  true  construction 
to  be,  that  the  representation  or  assu- 
rance thereby  required  to  be  in  writing, 
should  concern  or  relate  to  the  ability  of 
the  third  person  effectually  to  perform 
and  satisfy  an  engagement  of  a  pecuni- 
ary nature,  into  which  he  has  proposed 
to  enter,  and  on  the  faith  of  which  he  is 
to  obtain  money,  credit,  or  goods;  and 
conceiving  that   the    representation    in 


this  case  did  concern  the  aLilitT/  of  Lori 
E.  T.  to  perform  an  engagement  of  a 
pecuniary  nature,  on  the  faith  of  which 
he  was  to  obtain  money,  since  it  con- 
cerned his  ability  to  give  the  plaintifT  a 
sufBcient  security  to  repay  him,  by  way 
of  a  life  annuity,  the  money  he  was 
about  to  advance.  "The  ability  of  a 
man  (it  was  urged)  consists  in  the  sources 
from  which  it  is  derived.  He  may  have 
a  landed  estate  unfettered  by  mortgage 
or  other  incumbrance,  or  a  sum  of  money 
in  the  funds,  or  a  large  capital  embarked 
in  a  successful  trade,  or  a  large  balance 
in  his  banker's  hands.  Upon  all  or  any 
one  of  these  his  general  ability  may  de- 
pend. Can  it  be  said  that  a  representa- 
tion of  any  one  of  these  sources  of  abili- 
ty has  no  relation  to  his  general  ability'!" 
To  this  it  may  be  added,  that  it  is  in  the 
nature  of  things  impossible  that  one  man 
should  be  cognizant  of  another's  general 
ability  in  any  other  way  than  by  know- 
ing a  number  of  particular  facts  of  this 
description,  for  a  man's  general  ability 
consists  of  his  "property,  minus  his  debts. 
With  the  amount  of  his  property,  a  third 
person  may  be  certain  that  he  is,  at 
least,  to  a  certain  extent,  acquainted,  by 
knowing  the  items  that  compose  it.  But 
how  can  any  one  be  certain  that  he 
knows  the  amount  of  another's  debts'? 
Yet  if  those  debts  exceed  his  property, 
he  is  insolvent,  and  his  general  ability 
amounts  to  nothing.  It  is  true,  that, 
the  larger  his  property,  the  more  nume- 
rous and  valuable  its  items,  the  smaller 
is  the  likelihood  that  his  liabilities  should 
exceed  it;  which  plainly  shows,  that  to 
arrive  at  any  estimate  of  a  man's  gene- 
ral ability,  the  items  of  his  property  are 
mainly  to  be  taken  into  consideration. 
On  the  other  hand,  Parke  and  Alderson, 
Barons,  conceived  that  the  representa- 
tion in  question  did  not  appear  to  relate 
"  the  character,  conduct,  credit,  ability, 
trade  or  dealings"  of  Lord  Edward 
Thymic;  and  therefore,  did  not  fall 
within  the  statute.  "It  does  not,"  it 
was  urged,  "concern  or  relate  to  his 
character,  or  to  his  credit ;  it  does  not 
relate  to  his  conduct,  trade,  or  dealings, 
for  it  is  totally  immaterial  with  refer- 
ence to  the  inquiry  and  the  answer  to 
it:  who  had  incumbered  the  fund;  the 
only  question  in  substance  being,  to  what 
extent  it  was  incumbered.  And  it  does 
not  concern  or  relate  to  his  ability ;  for 
that  word,  especially  when  we  look  at 
those  which  accompany  it,  means,  in  its 
ordinary  sense,   some  quality  belonging 


CHANDELOR    V.     LOPUS. 


211 


to  the  third  party,  and  not  to  the  thing 
to  be  transferred.  In  order  to  bring  the 
particular  case  within  the  statute,  this 
last  word  is  relied  on,  and  it  is  said  that 
the  representation  of  the  state  of  the 
fund  relates  to  'the  ability'  of  the  in- 
tended grantor  of  the  annuity,  that  is,  to 
his  ability  to  fulfil  his  contract  to  charge 
the  fund ;  or,  if  no  contract  was  made 
at  the  time  of  the  representation  (as 
there  was  not),  then  the  phrase  must  be 
changed,  and  it  must  be  said  to  relate  to 
his  ability  to  charge  the  fund.  But  this 
will  hardly  be  sufficient  to  answer  the 
exigency  of  the  case  :  for  there  is  really 
no  question  as  to  the  power  of  the  per- 
son to  charge  the  fund,  such  as  it  is ;  it 
must,  therefore,  be  said  to  relate  to  his 
ability  to  give  security  on  a  fund  of  ade- 
quate value.  But  this  is  a  very  forced 
construction  of  the  word  ability.  It  is 
true,  that  a  representation  as  to  the  con- 
dition of,  or  value  of,  a  particular  part 
r*ftn  °^  ^  man's  property,  may  *relate 
L  J  to,  or  concern  his  character,  cre- 
dit, &c.  It  would  do  so,  when  the  ob- 
ject of  the  inquirer  is  to  give  credit  to 
the  third  person  on  his  personal  respon- 
sibility, and  he  is  seeking  information  as 
to  part  of  the  means  which  constitute 
its  value.  But  if  it  was  doubtful  whe- 
ther the  present  representation  was 
meant  to  relate  to  the  state  of  the  fund 
only,  or  to  the  state  of  the  fund  as  an 
element  of  Lord  Edward  Thynne's  per- 
sonal credit,  that  question  ought  to  have 
been  submitted  to  the  jury." 

The  court  being  equally  divided,  the 
rule  would  have  been  discharged,  but 


the  question  being  of  great  importance, 
a  new  trial  was  granted  on  payment  of 
costs,  in  order  that  it  might  be  raised 
upon  the  record.  I  am  not,  however, 
aware  that  it  was  so.  [The  point  was 
again  raised,  but  not  decided,  in  Town- 
ley  v,  Macgregor,  6  Scott,  N.  R.  906,  6 
Man.  &  Gr.  46,  S.  C. ;  the  plea  which 
denied  that  the  representation  was  in 
writing  having  been  held  at  all  events 
ill  for  argumentativeness.]  The  opinion 
of  Lord  Abinger  and  Gurney,  B.,  ap- 
pears, however,  to  be  reinforced  by  that 
of  the  Q.  B.  in  Swann  v.  Phillips,  8  A. 
&  E.  457. 

In  a  subsequent  case,  the  court  of  Q. 
Bench  held  that  though  the  action  be 
for  money  had  and  received  to  recover 
cash  obtained  from  the  plaintiff  by  means 
of  the  misrepresentation,  still,  if  the 
misrepresentation  constitute  the  whole 
of  the  plaintiff's  case,  parol  evidence  of 
it  cannot  be  received.  Haslock  v.  Fer- 
gusson,  7  Ad.  &  Ell.  6.  Whether  in  a 
case  depending  partly  but  not  wholly  on 
such  a  misrepresentation,  parol  evidence 
would  be  admissible,  is  not  yet  solemnly 
decided. 

The  act  applies  to  a  misrepresentation 
by  one  partner  respecting  the  credit  of 
the  firm.  Devaux  v.  Steinkeller,  6 
Bingh.  N.  C.  84. 

The  action  for  a  misrepresentation  in 
the  nature  of  deceit  seems  to  be  an  ex- 
ception from  the  general  rule,  that  in 
actions  for  words,  or  special  damage 
arising  therefrom,  the  very  words  must 
be  set  out,  Gutsole  v.  Mathers,  5  Dowl. 
70,  I  M.  &  W.  495. 


The  policy  of  the  common  law  seems  to  have  been  to  limit  the  effect  of  a 
sale,  to  the  transfer  of  the  right  of  property  from  the  vendor  to  the  pur- 
chaser, and  to  throw  the  hazards  of  the  purchase  upon  the  latter,  unless  he 
had  expressly  stipulated  that  they  should  be  borne  by  the  former.  No  war- 
ranty of  quality  or  value,  was  consequently  implied  from  the  sale,  either  of 
personal  or  real  estate.  A  warranty  of  title,  was  attached  in  some  cases  to 
the  conveyance  of  land,  but  only  where  special  words  of  gift  were  employed, 
or  a  tenure  created.  And  it  has  recently  been  decided  in  England,  that  the 
sale  of  chattels,  does  not  necessarily  render  the  vendor  answerable  for  the 
goodness  of  the  title  conveyed  to  the  vendee.  Morley  v.  Attenborough,  3 
Exchequer,  500.  A  different  rule  prevails  in  this  country,  and  it  is  gener- 
ally held  that  the  sale  of  chattels  implies  a  warranty,  unless  the  contrary 


212  smith's   leading  cases. 

appear  from  the  circumstances  under  which  they  are  sold.  Defreesc  v. 
Trumper,  1  Johnson,  204;  Keermance  v.  Vernoj,  6  id.  5;  Charnley  v. 
Dulles,  8  W.  &  S.  5;  Chancellory.  Wiggins,  4  B.  Monroe,  251.  How- 
ever this  may  be,  it  is  certain,  that  the  obligations  imposed  by  a  warranty  of 
quality  and  of  title  are  so  different,  that  the  existence  of  the  one  affords  no 
ground  whatever,  for  reasoning  to  that  of  the  other.  No  actual  breach  could 
occur  of  a  warranty  of  land,  until  an  actual  eviction,  which  was  usually,  if 
not  necessarily,  the  result  of  legal  proceedings,  and  after  a  summons  to  the 
warrantor  to  appear  and  defend  the  title  warranted.  It  has  been  held,  on 
several  occasions  in  this  country,  that  there  must  be  an  eviction  by  judg- 
ment of  law,  to  constitute  a  breach  of  the  implied  warranty  of  title  attached 
to  the  sale  of  chattels.  Vibbard  v.  Johnson,  19  Johnson,  79 ;  Case  v.  Hall, 
24  Wend.  102.  And  it  is,  at  all  events,  certain,  that  a  previous  surrender 
of  the  property  to  the  adverse  claimant,  is  an  essential  preliminary  to  the 
right  of  action,  A  warranty  of  title  will,  therefore,  seldom  be  made  the 
ground  of  a  suit,  unless  it  is  essentially  necessary  for  the  protection 
of  the  vendee.  But|_no  similar  restraint  exists  in  the  case  of  a  war- 
ranty of  quality.  The  vendee  may  retain  and  use  the  goods,  and  then 
either  set  up  the  existence  of  a  real  or  alleged  defect,  as  a  defence  to  a  suit 
for  the  purchase  money,  or  make  it  the  ground  of  an  action  against  the 
vendor,  without  having  given  the  latter  any  notice  of  his  intention,  until  an 
opportunity  for  verifying  the  condition  of  the  property,  has  been  lost  by  its 
consumption  or  removal.  There  is  consequently  every  reason  for  upholding 
the  rule  of  law  laid  down  in  the  principal  case,  and  not  affecting  a  vendor 
with  ^a  liability  to  consequences  which  may  prove  so  fatal,  unless  when, 
by  some  express  agreement,  he  has  subjected  himself  to  them. 

Nor  can  the  common  law,  in  refusing  to  imply  from  the  representations 
or  concealment  of  the  vendor  at  the  time  of  the  sale,  a  warranty  as  to  the 
qualities  which  he  asserts,  or  the  defects  which  he  does  not  declare,  be 
justly  charged  with  that  inattention  to  the  interests  of  morality,  and  too  close 
adherence  to  the  practical  possibilities  of  life,  which  has  sometimes  been  urged 
against  it.  In  no  case  whatever  does  that  law  allow  a  misrepresentation, 
knowingly  made  or  uttered  to  the  injury  of  another,  to  go  unpunished  by 
an  appropriate  remedy.  And  this  doctrine  is  as  applicable  to  sales  of 
chattels,  as  to  all  other  human  transactions.  By  the  side  of  the  action  for 
breach  of  warranty,  stands  the  action  on  the  case  for  deceit.  Under  its 
operation,  the  vendor  may  be  made  liable  for  any  intentional  misstatement, 
whereby  the  vendee  is  induced  to  purchase  under  a  false  impression ;  or, 
if  the  purchase-money  has  not  already  been  paid,  such  fraudulent  repre- 
sentations may  be  pleaded  or  given  in  evidence,  to  diminish  or  defeat  a 
recovery  in  any  suit  brought  to  enforce  a  payment.  The  responsibility  of 
the  vendor  is  thus  made  to  extend  as  far  as  it  can  with  justice  be  carried  ; 
since,  even  where  there  is  no  express  contract,  he  is  bound  to  answer  the 
questions  of  the  vendee  fairly,  or  else  by  silence  to  excite  his  suspicions,  and 
stimulate  his  inquiries.  But  beyond  this  point  the  vendor  cannot  with  jus- 
tice be  made  liable.  There  are  evidently  a  variety  of  different  relations 
under  which  a  contract  of  sale  may  be  formed;  and  the  rights  and  obliga- 
tions of  the  parties  must  be  as  various  as  those  relations.  The  vendee  may 
effect  the  purchase  exclusively  upon  his  own  information  and  skill,  without 
asking  or  receiving  aid  from  the  vendor ;  or  he  may  call  to  his  assistance  the 


CHANDELOR    V.    LOPUS.  213 

knowledge  possessed  by  the  vendor,  without  expecting  or  demanding  any 
thing  more  than  a  faithful  statement  of  such  knowledge  as  it  exists ;  or, 
finally,  he  may  require  from  the  latter,  an  express  undertaking  that  the 
goods  purchased  shall  be  of  a  certain  character  and  quality  j  thus  throwing 
upon  him  the  risk  of  all  those  uncertainties,  which  must  ever  attend  upon 
such  transactions.  In  each  of  these  cases,  the  obligations  and  rights  of  the 
parties  are,  and  ought  to  be,  difi'erent.  In  the  first,  the  vendee  having  asked 
and  expected  nothing  from  the  vendor,  the  law  raises  no  liabilitiy  between 
them ;  in  the  second,  as  the  vendee  has  purchased  upon  the  opinion  of  the 
vendor,  the  latter  is  bound  to  state  it  fairly,  but  is  not  responsible  for  its  cor- 
rectness in  point  of  fact ;  while  in  the  third  case,  the  vendor  will  be 
liable,  although  he  may  have  acted  with  the  fullest  good  faith,  if  the 
goods  do  not  correspond  with  the  standard  fixed  by  the  express  warranty 
'which  he  has  given  the  purchaser.  It  must  be  evident,  that  the  duties 
of  the  seller,  and  the  claims  of  the  purchaser,  vary  very  much  in  these 
different  cases,  and  that  to  confuse  the  distinctions  which  exist  between 
them,  and  make  a  vendor  who  has  either  made  no  statement  to  the  vendee, 
or  none  which  he  did  not  himself  believe,  answerable  in  the  absence  of 
express  warranty,  for  defects  of  which  he  may  not  have  known  the  existence, 
is  to  impose  a  liability,  arising  neither  out  of  tort  nor  contract,  the  only 
sources  from  which  actions  personal  can  rightly  flow. 

This  exposition  of  the  law  must  be  regarded  as  merely  a  fuller  statement 
of  the  legal  propositions,  contained  in  the  assignment  of  error  in  the  case  of 
Chandelor  v.  Lopus,  as  cited  above.  It  was  there  said,  that  to  charge  the 
defendant,  the  declaration  should  have  averred  "that  he  warranted  it  to  be  a 
Bezoar  stone,  or  that  he  knew  it  not  to  be  a  Bezoar  stone."  In  other  words, 
that  it  should  have  proceeded  either  in  tort  or  contract ;  and  with  sufficient 
matter  expressed,  to  support  one  or  the  other. 

The  Supreme  Court  of  Pennsylvania  has  adhered  to  the  principles  of  the 
common  law  as  stated  above,  and  in  the  absence  of  an  express,  will  not  pre- 
sume an  implied,  warranty.  Thus  in  the  case  of  Jackson  v.  Wetherill,  7 
Sergeant  &  Rawle,  480,  the  plaintiff,  in  an  action  brought  against  the  defend- 
ant on  the  sale  of  a  mare,  gave  in  evidence  the  repeated  declarations  of  the 
latter  at  the  time  of  the  contract,  that  she  was  perfectly  safe,  kind  and  gentle, 
in  harness;  and  judgment  was  given  against  the  defendant  in  the  court 
below,  as  for  breach  of  an  implied  warranty,  arising  out  of  these  statements. 
This  judgment  was,  however,  reversed  in  error,  by  the  Supreme  Court, 
who  held,  that  the  statements  of  the  defendant  were  mere  representations, 
which,  if  unfounded,  and  made  with  a  knowledge  of  their  falsehood,  would 
have  entitled  the  plaintiff  to  an  action  on  the  case,  for  deceit,  but  could  not 
be  construed  either  into  an  express  or  implied  contract  of  warranty.  In  the 
subsequent  case  of  M'Fiirland  v.  Newman,  9  Watts,  56,  where  nearly  the 
same  question  arose,  on  a  similar  sale,  this  decision  was  affirmed;  and 
Gibson,  C.  J.,  in  delivering  the  opinion  of  the  court,  strongly  insisted  on  the 
propriety  and  justice  of  the  common  law  doctrine  on  this  subject ;  and  held, 
that,  although  no  particular  form  of  words  is  necessary  to  constitute  a 
warranty,  the  jury  must  be  satisfied  that  the  party  actually,  and  not  con- 
structively, consented  to  be  bound,  for  the  truth  of  his  representations. 

In  the  interval  of  time  between  the  decisions  just  cited,  it  had  been 
held  in  Jennings  v.  Gratz,  3  Rawle,  169,  that  no  warranty  of  quality  was 


214  smith's  leading    cases. 

to  be  implied  on  a  sale  of  merchandise,  even  wtere  the  defect  arose  from 
adulterations,  producing,  as  far  as  they  extended,  a  change  in  specie. 
In  the  case  of  Kirk  v.  Nice,  2  Watts,  367,  the  defendant  had  contracted  to 
deliver  to  the  plaintiiF  a  large  quantity  of  bar  iron,  to  be  made  of  Centre 
county  metal,  for  which  he  had  been  paid  in  advance,  and  the  action  was 
instituted  to  recover  damages  for  the  bad  and  unmerchantable  quality  of  part 
of  the  iron,  delivered  in  execution  of  the  contract.  Agreeably  to  the  under- 
standing between  the  parties,  the  defendants  were  to  cast  the  bars  them- 
selves, thus  raising  the  question  of  the  peculiar  obligation  supposed  to  rest 
upon  manufacturers,  to  furnish  merchantable  wares;  but  the  Supreme 
Court  before  whom  the  suit  was  brought  in  error,  while  attaching  much 
weight  to  the  proviso  that  the  metal  employed  should  be  from  Centre 
county,  as  restricting  the  liability  of  the  defendants,  held,  in  general, 
they  were  not  bound  by  any  implied  warranty  as  to  the  quality  of  their 
wares ;  and  that,  in  the  absence  of  fraudulent  misrepresentation  they  were 
not  liable  to  the  plaintiffs,  even  if  they  knew  the  bars  to  be  unmerchant- 
able, at  the  time  of  delivery.  It  may,  however,  be  presumed  that  the  de- 
fendants would  have  been  made  answerable,  had  the  iron  of  which  the  bars 
were  cast,  been  purchased  with  a  knowledge  that  it  was  of  an  inferior  quality, 
or  had  the  defect  complained  of  in  the  declaration,  arisen  from  a  failure  in 
the  process  of  casting. 

In  like  mannei',  the  principles  of  the  common  law  on  the  subject  of  war- 
ranty, have  been  closely  followed  by  the  tribunals  of  New  York  and  Massa- 
chusetts ;  although  there  may  be,  in  some  cases  reason  to  doubt  the  correct- 
ness with  which  it  was  applied. 

Thus  in  the  case  of  Sands  v.  Taylor,  5  John.  895,  heated  wheat  had  been 
sold  by  the  plaintiffs,  which,  although  capable  of  being  used  as  flour,  was 
unfit  for  malting,  the  purpose  for  which  it  was  purchased.  Notwithstanding 
an  immediate  attempt  made  by  the  vendee  to  disaffirm  the  contract,  on  dis- 
covering the  defect,  the  court  gave  judgment  for  the  plaintiff,  on  the 
ground  that  no  warranty  was  to  be  implied,  in  a  suit  brought  by  him  for  the 
purchase-money.  Subsequently,  nearly  the  same  point  was  brought  up,  in 
the  case  of  Hart  v.  Wright,  17  Wend.  267.  Flour  made  from  heated  wheat, 
and  from  a  latent  defect  not  discoverable  by  examination,  unfit  to  be  manu> 
factured  into  starch,  or  even  used  for  food,  except  in  the  form  of  biscuit, 
had  been  sold  to  a  starch  manufacturer.  Notwithstanding  an  attempt  to 
raise  an  implied  warranty,  from  these  circumstances,  it  was  held,  in  an  action 
brought  by  the  vendee  for  damages,  that  the  flour  had  been  taken  at  his 
own  risk,  and  without  any  implied  warranty  by  the  vendor.  This  decision 
was  subsequently  brought  before  the  Court  of  Errors,  where  the  judgment 
of  the  Supreme  Court  was  affirmed  upon  the  same  reasoning  as  that  on 
which  it  had  been  given  below.  Wright  v.  Hart,  18  Wend.  449.  To  the 
same  effect  is  the  case  of  Salisbury  v.  Stainer,  19  Wend.  159,  where  it 
was  decided  that  the  plaintiff,  who  had  purchased  hemp  in  bales,  upon  a 
representation  that  it  was  of  the  first  quality,  which  proved  to  be  of 
inferior  value  in  the  interior  of  the  bales,  and  mixed  with  tow,  could  not 
recover  against  the  vendor,  without  proving,  knowledge  of  the  erroneous 
nature  of  the  representation,  or  an  express  warranty  on  the  part  of  the 
latter. 

But  the  strongest  cases  against  the  doctrine  of  implied  warranty  to  be 


CHAN  DELOR    V.    LO  P  U  S.  215 

found  in  the  whole  range  of  American  decisions,  are  those  of  Scixas  v. 
Woods,  2  Caines,  48,  Ilolden  v.  Dakin,  4  John.  421,  and  Swett  v.  Colgate, 
20  John.  196.  In  each  of  these  cases,  there  .was  not  merely  a  defect  in  the 
quality  of  the  merchandise  sold,  but  an  entire  failure  in  kind  j  the  articles 
delivered  not  corresponding  in  specie,  with  the  terms  or  representations 
employed  in  the  contract  of  sale.  Thus,  in  the  first  case,  the  vendee 
had  contracted  to  purchase  Brazil  wood,  in  the  second,  white  lead,  and  in 
the  third,  barilla;  while  the  vendors,  in  executing  the  several  contracts, 
had  respectively  delivered  peachum  wood,  a  white  substance,  containing  but 
little  lead,  and  kelp;  all  of  them  articles  of  much  inferior  value,  but  closely 
resembling  those  which  were  nominally  the  objects  of  sale. 

It  was  held  under  these  circumstances,  that  as  the  vendor  had  neither 
given  a  warranty  nor  been  guilty  of  fraud  or  misrepresentation,  he  was  not 
responsible  for  the  failure  of  the  goods,  to  answer  the  expectations  of  the 
purchaser. 

The  supposed  nature  of  the  substance  sold  w»s  set  forth,  in  each  of  these 
instances,  in  the  bill  of  parcels  or  advertisement,  by  which  the  sale  was  pre- 
ceded or  accompanied,  but  the  description  thus  given,  was  treated  as  a  mere 
collateral  representation  forming  no  part  of  the  contract.  A  different  view 
is  taken  on  this  point  at  the  present  day  in  many  parts  of  this  country,  and 
the  description  given  of  the  thing  sold  at  the  time  of  the  sale,  is  held  to 
enter  into  and  qualify  the  contract  itself.  But  even  if  these  cases  go  too 
far  in  holding  that  the  description  given  by  the  vendor  of  the  nature  of  that 
which  he  sells,  is  essentially  matter  of  representation  and  not  of  contract, 
their  authority  is  not  the  less  strong  on  the  point,  that  what  is  manifestlj' 
representation  cannot  have  the  effect  of  contract.  And  in  thus  determining 
that  the  vendor  is  not  liable,  even  where  he  has  represented  the  goods  sold  to 
be  different  from  what  they  prove,  they  necessarily  determine  that  he  will  not 
be  so,  where  no  such  representations  are  made,  and  when  the  vendee  has  relied 
wholly  on  his  own  judgment  in  making  the  purchase.  The  law  was  so  held  in 
the  recent  case  of  Moses  v.  Mead,  1  Denio,  378,  when  the  previous  decisions 
in  New  York,  on  this  point  were  followed,  and  it  was  decided  that  no  action 
could  be  maintained  against  the  defendant,  for  selling  a  number  of  casks  of 
salt  beef  at  the  ordinary  market  price,  which  proved  to  be  spoiled  and  un- 
marketable, when  opened.  « 

A  similar  decision  was  made  in  the  case  of  Conner  v.  Henderson, 
15  Mass.  320.  The  plaintiff  there  declared  on  a  contract  by  the  defend- 
ant, to  deliver  eighty-nine  casks  of  lime  of  good  quality,  and  averred  a 
breach,  by  the  delivery  of  lime  of  little  value,  and  not  merchantable,  and 
added  a  count  for  money  had  and  received  to  his  use.  The  evidence  showed 
that  the  casks  contained  a  mixture  of  sand  and  stone  instead  of  lime,  but 
there  was  no  proof  of  a  scienter  against  the  defendant,  who  had  made  the 
sale  as  agent,  although  personally  liable,  in  consequence  of  not  having  dis- 
closed his  principal. 

It  was  held  by  the  court,  that,  as  no  express  warranty  had  been  given, 
and  an  implied  wari'anty  could  not  be  presumed,  no  action  would  lie  for  a 
breach  of  warranty,  and  that  the  plaintiff  could  not  recover  on  the  count 
for  money  had  and  received,  as  the  contract  had  not  been  rescinded  by  re- 
turning the  casks.  But  they  expressed  an  opinion,  that  a  declaration  might 
be  framed  on  the  evidence  before  them,  under  which  the  plaintiff  would  be 


216  smith's    leading    cases. 

entitled  to  judgment.  As  there  was  no  warranty,  and  the  defendant  was 
protected  from  liability  in  case,  by  his  ignorance  of  the  fraud,  the  declaration 
thus  hinted  at,  must  have  been  one  setting  forth  a  contract  for  the  sale  of 
lime,  and  a  breach  by  the  delivery  of  sand  and  stone.  And  it  seems  from 
the  case  of  Henderson  v.  Seevy,  2  Maine,  139,  which  was  a  subsequent  suit 
growing  out  of  the  same  controversy,  that  the  plaintiff  subsequently  recov- 
ered on  a  count  of  that  description.  The  general  doctrine  that  a  warranty 
cannot  be  implied,  has  been  asserted  in  Massachusetts,  in  a  number  of  other 
instances,  and  was  recently  applied  in  the  case  of  Lamb  v.  Crafts,  12  Met- 
calf,  353,  where  the  plaintiff  was  not  allowed  to  recover  for  a  defect  in  the 
quality  of  tallow  which  he  had  purchased  under  circumstances,  which  did 
not  admit  of  his  proving  an  express  warranty  of  its  quality,  even  if  one  had 
been  given. 

There  have  been  a  great  number  of  other  decisions  in  this  country,  in 
which  the  rule  caveat  emptor  has  been  held  with  equal  strictness,  and  has 
been  applied,  not  only  wher^  the  question  was  one  purely  of  pleading,  as  in 
Chandelor  v.  Lopus,  but  where  it  grew  out  of  evidence  as  offered  before  a 
jury.  Reed  v.  Wood,  9  Vermont,  288;  Dean  v.  Mason,  4  Conn.  432; 
Jones  v.  Mauray,  3  Monroe,  83;  Stone  v.  Denny,  4  Metcalf,  154;  Miser 
V.  Coburn,  10  Id.  559;  Helm  v.  Shackleford,  4  Randolph,  5;  Otis  v.  Al- 
derson,  10  Smedes  &  Marshall,  476 ;  Erwin  v.  Maxwell,  3  Murphy,  241 ; 
Perry  v.  Aaron,  1  John.  129;  Hyatt  v.  Boyle,  5  Gill  &  Johns.  110;  John- 
ston V.  Cope,  3  Harr.  &  Johns.  89 ;  Stewart  v.  Dougherty,  6  Dana,  479 ; 
Beard  v.  Matthews,  lb.  129.  These  cases  are  substantially  to  the  same 
effect  with  those  cited  above,  and  may  be  considered  as  proving,  in  connexion 
with  them,  that  the  general  current  of  American  law,  has  continued  to  flow 
within  the  channels  marked  out  in  the  principal  case,  and  will  not  affect  a 
vendor  with  liability  for  the  defective  quality  of  his  goods  or  merchandise, 
except  on  the  ground  of  fraud  or  express  warranty. 

In  some  of  the  states,  however,  a  different  rule  prevails.  Thus,  if  the 
language  held  by  Grant,  J.,  in  Barnard  v.  Yeates,  1  Nott  &  M'Cord, 
142,  were  acted  on,  it  would  establish  that  the  recovery  in  an  action 
brought  for  purchase-money,  may  be  reduced  by  whatever  sum  the  jury 
think  a  fair  compensation,  for  all  defects  which  were  ^unknown  to  the 
vendee  at  the  time  of  the  sale,  even  where  he  bought  with  full  oppor- 
tunity for  examination,  and  when  neither  fraud  nor  warranty  is  shown 
as  against  the  vendor.  No  other  decision,  however,  in  South  Carolina  has 
gone  so  far.  In  Rose  v.  Beattie,  2  Nott.  &  M'Cord,  539,  the  doctrine  of 
implied  warranty  was  restricted  to  those  cases  where,  as  in  the  sale  of  cotton 
packed  in  bales,  no  opportunity  is  offered  for  an  examination  of  the  quality 
of  the  property  sold.  In  Carnochan  v.  Gould,  1  Bailey,  179,  the  court  held 
that  a  warranty  will  not  be  implied,  when  the  goods  might  have  been  in- 
spected, and  the  defect  is  one  discoverable  by  inspection.  And,  in  the 
recent  case  of  Wood  v.  Ashe,  1  Strobhart,  407,  the  obvious  position  was 
taken,  that  when  the  purchaser  knows  of  the  defect  at  the  time  of  the  pur- 
chase, the  vendor  will  not  be  answerable  for  its  existence.  The  rule  of  the 
civil  law,  as  contended  for  in  Bernard  v.  Yeates,  is,  however,  fully  adopted 
in  Louisiana;  and,  where  defects  exist,  rendering  the  thing  sold  unfit  for 
the  avowed  object  for  which  it  is  purchased,  the  seller  will  be  obliged  |to 
take  it  back,  though  ignorant  of  their  existence,  and  although  the  buyer 


CHANDELOR    Y.     LOPUS.  217 

had  full  opportunity  afforded  him  for  examination.  Melan§on  v.  Robichaux, 
17  Louisiana,  101;  Mellaudon  v.  Price,  3  Annual  R.  4;  Huntington  v.  Lowe, 
lb.  377. 

The  English  authorities  are  equally  strong  in  favour  of  the  proposition, 
that  the  sale  of  specific  chattels  or  merchandise,  docs  not  imply  a  warranty 
under  ordinary  circumstances.  Parkinson  v.  Lee,  2  East,  314 ;  LaNeuville 
V.  Nourse,  3  Camp.  351;  Bluett  v.  Osborne,  1  Starkie,  384;  and  this  rule 
is  held  to  apply,  even  where  the  sale  is  transacted  by  words  of  general 
description,  and  not  by  the  designation  of  any  particular  article,  so  far  as 
to  exonerate  the  vendor  from  liability  for  the  defects  of  quality,  in  points 
not  expressly  embraced  in  the  terms  of  the  description ;  Gray  v.  Cox,  4  B. 
&  C.  108.  There  are,  however,  a  number  of  decisions,  in  which  it  has  been 
held,  that,  if  the  purchase  be  shown  to  have  been  made  for  a  particular  pur- 
pose, communicated  at  the  time  to  the  vendor,  which  the  goods  fail  to  answer 
when  delivered,  an  action  on  the  case  may  be  supported  against  him,  without 
other  evidence,  and  without  the  averment  or  proof  of  any  knowledge  of  the 
defect  on  his  part  at  the  time  of  the  sale.  The  law  was  so  held  in  the  lead- 
ing case  of  Williamson  v.  Alanson,  2  East,  446,  where  the  declaration  set 
forth  that  the  plaintiff  had  purchased  claret  for  exportation  to  the  East 
Indies,  and  that  the  defendant  had  fraudulently  sold  it  with  a  knowledge 
of  its  unfitness  for  exportation.  No  evidence  was  given  in  support  of  this 
later  averment;  but  it  was  held,  that  as  the  declaration  would  have  been 
good  without  the  scienter,  it  might  be  treated  as  surplusage,  and  a  verdict 
found  for  the  plaintiff  on  the  facts  appearing  on  the  rest  of  the  pleading. 
This  case  was  followed  in  Jones  v.  Bright,  5  Bing.  533,  where  the  defend- 
ant, who  had  sold  sheathing  copper,  manufactured  by  himself,  to  the  plain- 
tiff, for  the  purpose  of  being  used  on  the  bottom  of  a  vessel  belonging  to  the 
latter,  was  held  liable  in  an  action  on  the  case  for  deceit,  on  evidence  of  these 
facts,  and  that  the  copper  had  proved  unfit  for  the  object  for  which  it  was 
sold.  In  the  more  recent  decision  of  Brown  v.  Edgington,  2  M.  &  G.  279, 
the  defendant,  who  held  himself  out  as  being  what  he  was  not  in  reality,  a 
ropemaker,  had  undertaken,  as  such,  to  manufacture  a  rope  which  he  knew 
was  to  be  employed  in  raising  heavy  weights.  The  rope  was,  however,  made 
in  point  of  fact,  by  a  third  person  not  in  his  employ,  and  when  delivered, 
proved  wholly  defective,  by  breaking  under  the  weight  of  a  cask  of  wine, 
which  was  consequently  lost.  Under  these  circumstances,  it  was  deter- 
mined, that  a  declaration  on  the  case,  averring  a  fraudulent  warranty  of  the 
fitness  of  the  rope  for  the  purpose  for  which  it  was  designed  by  the  plaintiff, 
and  the  injury  resulting  to  the  latter  from  the  purchase,  on  the  faith  of  such 
warranty,  was  sustained  by  the  evidence,  and  would  entitle  him  to  recover, 
not  only  for  the  deficiency  in  value  of  the  rope,  but  consequential  damages 
for  the  loss  of  the  wine. 

These  cases  obviously  proceed  on  the  ground,  that  when  the  object  of  the 
purchase  is  communicated  to  the  vendor  at  the  time  of  the  sale,  it  must  be 
considered  as  incorporated  with  the  contract,  and  as  giving  rise  to  a  stipula- 
tion, that  it  shall  not  be  defeated  by  defects  not  essentially  or  inseparably 
incident  to  the  nature  of  the  thing  purchased.  It  is  therefore  evident,  that 
such  a  stipulation  can  only  be  founded  upon  the  knowledge  had  by  the  ven- 
dor of  the  object  of  the  purchase,  and  that  when  this  is  not  of  a  nature  to 
be  necessarily  inferred,  and  has  not  been  expressly  communicated,  he  cannot 


218  smith's    leading   cases. 

be  made  ani?werable  for  its  failure.  Thus  it  was  hold  by  the  Court  of 
Common  Picas,  in  Shepherd  v.  Pybus,  3  M.  &  Gr.  867,  that  where  a  barge 
was  sold  under  an  executed  contract  of  sale,  without  warranty,  and  with 
full  opportunity  for  inspection,  the  vendor  was  not  answerable  for  its  unfit- 
ness for  a  special  purpose,  not  communicated  to  him  by  the  purchaser, 
although  it  was  said,  that  he  would  have  been  so,  had  such  a  communica- 
tion been  made,  or  if  the  barge  had  been  unfit  for  ordinary  purposes. 

The  English  courts  have  moreover,  of  late,  imposed  some  very  necessary 
restrictions  upon  the  doctrine  of  implied  warranty,  as  arising  out  of  the 
knowledge  of  the  seller  of  the  object,  for  which  the  purchase  is  intended  by 
the  buyer.  Thus  in  Chanter  v.  Hopkins,  4  M.  &  W.  399,  it  was  held,  that 
although  the  vendor  may  be  liable,  where  the  insufficiency  of  the  thing  sold, 
for  the  object  of  the  purchase,  arises  from  a  defect  of  quality,  or  construc- 
tion, and  not  from  its  nature,  yet  that  his  responsibility  can  in  no  case 
extend  to  any  thing  more  than  furnishing  that  which  he  has  contracted 
to  sell,  agreeably  to  the  designation  given  by  the  vendee.  In  that  case,  the 
defendant  had  agreed  to  put  up  a  new  patent  smoke-consuming  furnace  for 
the  plaintifi",  which  proved,  wheii  erected,  instead  of  having  the  advantages 
it  was  supposed  to  possess,  to  be  more  expensive  and  troublesome  than  the 
furnaces  in  common  use.  But  it  was  held  by  Lord  Abinger,  that  this  was 
nothing  more  than  the  "  ordinary  case  of  a  man,  who  has  had  the  mis- 
fortune to  order  a  particular  chattel,  on  the  supposition  that  it  would  answer 
a  particular  purpose,  which  he  finds  it  will  not,"  and  that  the  plaintifi"  was 
not  entitled  to  recover. 

The  same  point  again  arose  in  Olivant  v.  Bayley,  5  Q.  B.  288.  The 
plaintiff"  there  brought  indebitatus  assumpsit,  to  recover  the  price  of  work 
and  labour  done,  and  materials  furnished,  under  a  contract  to  put  up  a  two 
colour  printing  machine,  similar  to  one  then  in  operation  in  his  shop,  con- 
structed on  a  pi'inciple  for  which  he  had  obtained  a  patent.  The  defence 
set  up  was,  that  the  machine  had  been  purchased  by  the  defendant,  and 
sold  by  the  plaintiff",  expressly  for  the  purpose  of  printing  in  two  colours, 
for  which,  upon  trial,  it  proved  wholly  unserviceable.  Under  these  circum- 
stances it  was  held,  if  the  machine  in  question  were  a  "  known  and  ascer- 
tained article,"  and  the  defect  was  not  in  the  workmanship,  but  in  the  prin- 
ciple on  which  it  was  constructed,  the  plaintiff,  although  both  maker  and 
inventor,  was  not  answerable  for  its  fitness  for  the  purpose  of  the  buyer, 
and  was  entitled  to  recover  the  full  price  originally  agreed  to  be  given  by 
the  latter.  The  case  of  Camac  v.  AYarriner,  1  C.  B.  356,  is  to  the  same 
effect,  although  the  decision  there  was  entangled  with  considerations  arising 
out  of  the  particular  pleadings. 

The  doctrine,  that  a  sale  made  for  a  particular  purpose  implies  a  war- 
ranty, that  the  thing  sold  shall  be  fit  for  that  purpose,  has  been  advanced 
in  a  number  of  occasions  in  this  country,  although  seldom  made  the  ground 
of  direct  and  positive  decision.  The  sounder  view  seems  to  be,  that  no 
engagement  of  this  sort  can  be  implied  against  the  vendor,  save  where  the 
contract  is  partially,  or  wholly,  executory,  and  that,  in  this  case,  it  is  not 
in  the  nature  of  a  warranty,  but  of  an  implied  stipulation  forming  part  of 
the  substance  of  the  contract ;  Howard  v.  Hoey,  28  Wendell,  350.  The 
law  was  so  held  in  Chanter  v.  Hopkins,  where  the  following  masterly  expo- 
sition of  the  question  was  given  by  Lord  Abinger :  "  A  good  deal  of  con- 


CHANDELOR    V.    LOPUS.  219 

fusion  has  arisen/'  said  bis  Lordship,  "  from  the  unfortunate  use  made  of 
the  -word  warranty."  "  Two  things  have  been  confounded  together.  A  war- 
ranty is  an  express  or  implied  statement  of  something  which  the  party 
undertakes  shall  be  part  of  the  contract;  and  though  part  of  the  contract, 
yet  collateral  to  the  express  object  of  it.  But  in  many  of  the  cases,  some 
of  which  have  been  referred  to,  the  circumstance  of  a  party  selling  a  parti- 
cular thing  by  its  proper  description,  has  been  called  a  warranty;  and  a 
breach  of  such  a  contract,  a  breach  of  warranty ;  but  it  would  be  better  to 
distinguish  such  cases  as  a  non-compliance  with  a  contract  which  a  party 
has  engaged  to  fulfil;  as  if  a  man  offers  to  buy  peas  of  another,  and  he 
sends  him  beans,  he  does  not  perform  his  contract ;  but  that  is  not  a  war- 
ranty;  there  is  no  warranty  that  he  should  sell  him  peas;  the  contract  is 
to  sell  peas,  and  if  he  sells  him  any  thing  else  in  their  stead,  it  is  a  non- 
performance of  it.  So  if  a  man  were  to  order  copper  for  sheathing  ships, 
that  is,  a  particular  copper,  prepared  in  a  particular  manner,  if  the  seller 
sends  him  different  sort,  in  that  case  he  does  not  comply  with  the  contract; 
and  though  this  may  have  been  considered  a  wanauty,  and  may  have  been 
ranged  under  the  class  of  cases  relating  to  warranties,  yet  it  is  not  properly 
so." 

These  remarks  seem  to  apply  with  equal  force  in  those  instances,  where 
the  difficulty  or  impossibility  of  inspecting  the  goods  at  the  time  of  sale, 
has  been  said  to  justify  a  presumption,  that  the  purchase  was  made  subject 
to  an  implied  stipulation,  that  the  property  sold  was  in  such  a  condition  as 
to  admit  of  being  used  by  the  purchaser,  or  resold  to  other  persons.  Such 
a  presumption  may,  no  doubt,  arise  under  certain  circumstances ;  Gallagher 
V.  Waring,  9  AVendell,  20;  Howard  v.  Hoey;  Barrett  v.  Stanton,  2  Ala- 
bama, 181;  Carnochan  v.  Gould,  1  Bailey,  129  ;  but  not  as  it  would  seem, 
where  the  sale  is  executed,  and  the  intention  has  been  to  transfer  the  right 
of  property  in  the  thing  sold  absolutely,  and  not  merely  in  case  it  shall 
accord- with  the  express  or  implied  understanding  of  the  parties;  Whiteman 
V.  Freese,  23  Wend.  213. 

In  Misner  v.  Granger,  4  Gilman,  69,  the  point  in  dispute  was  as  to, 
whether  the  sale  of  a  threshing  machine  by  a  dealer  in  such  articles,  implied 
an  undertaking,  that  it  should  be  fit  for  the  purpose  for  which  it  was  pur- 
chased. The  decision  turned  chiefly  on  the  insufficiency  of  the  declaration, 
but  the  court  intimated  a  strong  opinion,  that  the  defendant  could  not  be 
made  liable  under  any  form  of  pleading.  The  case,  therefore,  tends  to 
strengthen  the  ground  taken  in  Chanter  v.  Hopkins  and  Camac  v.  War- 
riner.  But  it  must  be  remembered,  that  these  decisions  are  not  in  point 
when  the  contract  is  executory,  and  the  failure  of  the  thing  sold  to  answer 
the  object  for  which  it  is  purchased,  arises  from  a  want  of  proper  care  or 
skill  in  the  process  of  manufacture  or  construction,  and  not  merely  from  a 
defect  incident  to  the  principle  on  which  it  is  constructed. 

There  are,  however,  some  other  circumstances  under  which  an  implied 
warranty  has  been  supposed  to  arise,  in  opposition  to  the  general  rule  which 
forbids  its  existence.  Thus  the  case  of  Van  Bracklin  v.  Fonda,  12  Johnson, 
468,  has  been  regarded  as  deciding,  that  the  sale  of  provisions  for  domestic 
use  implied  a  warranty  of  their  soundness.  The  point  was  not,  however, 
before  the  court,  for  the  action  was  in  case,  and  the  evidence  showed  that 
the  vendor  knew  of  the  defect  at  the  time  of  the  sale.     And  in  Emerson  v. 


I 


220  smith's    leading   cases. 

Brigham,  10  Mass.  197,  it  was  decided,  that  the  sale  of  provisions  for 
immediate  consumption  does  not  carry  with  it  a  warranty,  although  it  implies 
an  affirmation  of  their  fitness  for  use,  on  which  the  vendor  will  be  liable  if 
he  knows  them  to  be  unfit.  This  decision  is  in  a  great  measure  sustained  by 
the  recent  case  of  Burnby  v.  Bollett,  16  M.  &  W.  644,  where  the  court 
held,  that  the  defendant  who  had  bought  the  carcase  of  a  pig  from  a  butcher 
and  re-sold  it  to  the  plaintiff,  was  not  liable  to  the  latter  for  the  diseased 
condition  of  the  flesh,  of  which  he  was  ignorant  at  the  time  of  the  sale. 
And  it  is  thoroughly  well  settled,  that  the  sale  of  provisions  in  the  course 
of  general  and  commercial  transactions,  is  within  the  general  rule  caveat 
emptor,  and  that  no  warranty  or  affirmation  of  quality  or  fitness  will  be 
implied  against  the  vendor  where  he  has  made  none  expressly;  Winsor  v. 
Lombard,  18  Pickering,  57 ;  Hart  v.  Wright,  17  Wendell,  267 ;  18  Id. 
449  J  Moses  v.  Read,  1  Denio,  378. 

In  the  absence  of  all  liability  arising  from  contract,  the  vendor  may  evi- 
dently be  liable  on  the  ground  of  tort.  This  is  implied  by  the-  assignment 
of  errors  in  Chandelor  v.  Lopus,  where  the  absence  of  an  allegation  of  know- 
ledge, was  urged  as  rendering  the  declaration  insufficient  in  one  aspect,  as 
the  want  of  an  averment  of  warranty  made  it  defective  on  another.  The 
court  are  undoubtedly  reported  to  have  said,  that  even  if  the  defendant  knew 
the  true  state  of  the  case,  it  was  immaterial.  But  this  must  either  be 
understood  with  reference  to  the  state  of  the  pleadings  which  contained  no 
averment  whatever  of  his  knowledge,  and  only  an  indirect  averment  of  fraud 
or  misrepresentation,  or  else,  as  a  mere  dictum  which  would  not  have  been 
followed,  even  at  the  time  when  it  was  uttered,  and  which  certainly  is  not 
law  at  the  present  day.  There  can  be  no  doubt,  that  the  sale  of  a  thing  with 
an  express  or  implied  representation  of  its  nature  or  qualities,  which  is 
false  within  the  knowledge  of  the  party  who  makes  it,  amounts  to  a  fraud, 
and  not  only  vitiates  the  contract,  but  renders  the  guilty  party  liable  to 
an  action  for  damages.  If,  therefore,  the  vendor  make  wilful  misstate- 
ments as  to  the  condition  of  the  property  sold,  or  sell  it  as  other  than  he 
knows  it  to  be,  and  thereby  induce  the  completion  of  the  purchase,  the 
contract  will  be  voidable  at  the  option  of  the  vendee,  who  may  either  avoid 
it  by  returning  the  goods,  and  bi'ing  an  action  on  the  case  for  the  deceit,  or 
affirm  it  by  keeping  them,  and  then  give  the  fraud  in  evidence  to  diminish 
or  defeat  a  recovery,  in  a  suit  brought  to  enforce  payment  of  the  purchase- 
money;  Thayer  v.  Turner,  8  Metcalf,  550;  Hazard  v.  Irwin,  18  Pickering, 
95  ;  Kimball  v.  Cunningham,  4  Massachusetts,  504 ;  Cornefuis  v.  Molloy, 
7  Barr,  293. 

Even  where  th6  vendee  in  a  sale  vitiated  by  fraud,  has  affirmed  the  con- 
tract by  using  the  goods,  and  has  paid  the  purchase-money,  he  is  not  left 
without  remedy,  for  he  may  still  have  recourse  to  an  action  on  the  case  for 
deceit,  and  recover  damages  for  whatever  injury  he  has  sustained,  from  being 
led  into  a  disadvantageous  purchase,  by  the  wilful  misstatements  of  the  ven- 
dor ;  Harrington  v.  Stratton,  22  Pick.  510.  In  order,  however,  to  support 
this  form  of  action,  it  is  essentially  necessary,  that  the  scienter  should  be 
proved  :  and  it  will  not  be  sufficient  to  show,  that  the  defendant  made 
statements  which  he  did  not  know  to  be  true,  and  which,  in  point  of  fact, 
were  false;  Cornfoot  v.  Fowke,  6  M.  &  W.  358  ;  Taylor  v.  Ashton,  11  id. 
401;  Russel  v.  Clark's  ex'ors,  7  Cranch,  69;  Wilson  v.  Fuller,  3  Q.  B. 


CHANDELOR    V.     LOPUS.  221 

68;  Collins  v.  Evans,  5  Q.  B.  819;  Tryon  v.  Whitmarsb,  1  Metcalf,  1. 
But  where  the  averments  of  the  defendant  have  been  made,  as  of  his  own 
knowledge,  and  not  as  mere  general  assertions,  it  will  be  sufficient  to  prove 
that  he  had  not,  and  could  not  have  had  such  knowledge  ;  and  in  that  case, 
his  having  held  himself  out  as  possessing  it,  will  constitute  a  fraud,  and 
render  him  liable  under  the  scienter;  Hazard  v.  Irwin,  18  Pickering,  95. 
Moreover,  in  addition  to  fraud  on  the  part  of  the  defendant,  the  plaintiff 
must  prove  injury  to  himself.  When,  therefore,  the  vendee  knows  of  the 
defect  at  the  time  of  the  purchase,  he  cannot  be  misled  by  a  denial  of  its 
existence,  and  can  have  no  right  to  damages  for  a  deceit  where  he  has  not 
been  deceived.  But  in  order  to  exonerate  the  vendor  on  this  ground,  the 
knowledge  of  the  purchaser  should  be  clearly  proved,  and  it  ought  not  to  be 
inferred  merely  because  the  defect  might  have  been  discovered  by  examina- 
tion, nor,  unless  it  is  so  far  patent  as  to  justify  the  belief,  that  it  was  pur- 
posely overlooked  at  the  time  of  the  purchase,  in  order  to  found  an  action 
upon  it  afterwards.  And  this  is  more  especially  true,  when  the  false  repre- 
sentations of  the  vendor  have  been  accompanied  by  a  warranty,  and  thus 
have  tended  still  further  to  throw  the  purchaser  off  his  guard,  and  prevent 
him  from  seeing  what  might  o-therwise  have  been  manifest;  Huntington  v. 
Lowe,  3  Louisiana  R.  377 ;  The  India  Rubber  Co.  v.  Adam,  23  Pickering, 
265.  When,  however,  it  is  proved  positively,  that  the  purchaser  knew  of 
the  defect  at  the  time  of  the  purchase,  he  cannot  recover  damages  for  it  in 
any  form  of  action,  for  in  that  case  he  can  hardly  be  exonerated  from  a  want 
of  good  faith,  and  comes  within  the  rule,  volenti  non  fit  injuria. 

To  sustain  an  action  on  the  case  for  fraud,  whether  committed  in  the 
course  of  a  sale,  or  any  other  transaction,  there  need  not  necessarily  be  the 
allegation  or  proof  of  express  and  positive  misstatement.  The  essence  of 
fraud  is  undoubtedly  deceit,  but  deceit  may  be  practised  either  by  words  or 
actions.  Any  course  of  dealing,  therefore,  on  the  part  of  the  vendor,  of  a 
nature  to  create  a  false  impression  in  the  mind  of  the  vendee,  will  amount 
to  a  fraud,  and  render  the  guilty  party  liable  in  damages;  Misner  v. 
Granger,  4  Gilman,  69.  Thus  when  provisions  are  sold  for  domestic 
use,  the  mere  fact  of  selling  them  is  an  implied  affirmation,  that  they  are 
sound  and  wholesome,  so  far  as  the  knowledge  of  the  vendor  extends, 
and  an  action  on  the  case  for  a  deceit,  may  be  sustained  against  him  on 
proving,  that  he  knew  them  to  be  unsound,  without  any  proof  of  an 
express  warranty  or  a  representation  of  soundness  ;  Van  Bracklin  v.  Fonda, 
12  Johnson,  468.  This  is  evident  from  the  case  of  Emerson  v.  Brigham, 
10  Massachusetts,  119,  where  it  was  held,  that  no  warranty  of  soundness  or 
quality  is  to  be  implied  from  the  sale  of  provisions  for  home  consumption  ; 
and  that  the  defendant  could  not  be  made  liable  for  selling  salt  beef  in  casks, 
in  a  state  not  fit  for  food,  without  proof  of  the  scienter,  but  that,  with 
such  proof,  there  would  be  sufficient  evidence  of  fraud  from  the  nature  of 
the  article  sold,  independently  of  any  affirmation  as  to  its  goodness.  These 
decisions  are  obviously  mere  applications  of  the  general  rule,  that  fraud  may 
arise  out  of  the  suppression  of  truth,  as  well  as  the  suggestion  of  falsehood. 

The  wrong  done  by  concealing  a  defect  which  renders  the  thing  sold  unfit 
for  the  purpose  for  which  it  is  purchased,  is  not  confined  to  the  sale  of  pro- 
visions for  domestic  use.  There  are  many  other  instances,  in  which  the 
seller  should  be  made  answerable  for  a  violation  of  the  confidence  reposed 


222  smith's   leading  cases. 

in  him  by  the  buyer.  And  it  is  at  all  events  certain,  that  an  action  may  be 
sustained  in  every  instance,  where  the  course  adopted  by  the  vendor  has  been 
such  as  to  mislead  the  purchaser,  although  not  attended  by  direct  or  posi- 
tive misrepresentation.  Allen  v.  Addington,  7  "Wend.  10;  11  id.  75; 
Kidney  v.  Stoddart,  7  Metcalf,  252.  Thus  the  mere  production  of  mer- 
chandise by  a  tradesman,  in  answer  to  the  inquiries  of  his  customers, 
amounts  to  an  affirmation  that  it  is  of  the  kind  for  which  they  have  inquired, 
and  even  as  it  would  seem  that  it  is  not  so  far  defective  in  quality,  as  to  be 
unfit  for  the  purpose  for  which  such  merchandise  is  usually  purchased.  It 
may  be  presumed,  that  a  cutler  would  be  liable  to  an  action  on  the  case,  for 
deceit,  for  selling  razors  in  the  way  of  his  trade,  and  at  the  price  usually  paid 
for  cutlery  of  good  quality,  which  he  knew  to  have  been  made  merely  for 
sale,  and  to  be  wholly  unfit  for  the  purpose  of  shaving.  In  this  aspect  of  the 
case,  the  price  for  which  the  goods  are  sold,  may  be  material,  for  although 
the  demand  of  a  sound  price  does  not  imply  a  warranty  of  soundness,  yet  it 
may  reasonably  be  considered  as  an  assertion,  that  the  seller  is  not  aware 
of  the  existence  of  any  gross  defect  in  the  article  sold.  The  liability  thus 
imposed  on  the  vendor,  should  not  be  carried  to  the  extent  of  a  warranty, 
which  would  render  him  answerable  for  defects  of  which  he  is  ignorant, 
but  it  may  and  should  be  made  co-extensive  with  his  knowledge. 

It  is  evident,  from  the  language  held  by  Lord  Abinger,  in  Chanter  v.  Hopkins, 
(supra,  219,)  that  even  in  the  absence  of  warranty,  a  sale  is  only  so  far  binding 
on  the  vendee,  as  its  execution  is  tendered  or  completed  by  the  vendor,  and 
that  the  latter  cannot  call  for  the  purchase-money,  without  proifering  or  deli- 
vering what  the  former  has  agreed  to  buy.  The  justice  of  this  principle  is 
obvious,  and  the  only  difficulty  is  to  determine  what  cases  admit  of  its 
application.  King  v.  Paddock,  18  Johns.  141;  Howard  v.  Hoey,  23 
Wend.  250 ;  Wright  v.  Barnes,  14  Conn.  R.  518 ;  Young  v.  Cole,  3  Bing. 
N.  C.  724 ;  Bridge  v.  Wain,  1  Starkie,  504.  Where  the  contract  is  made 
with  reference  to  specific  chattels,  there  is  often  room  for  doubt,  as  to 
whether  the  intention  of  the  parties  is  to  transfer  the  right  of  property  in 
the  chattels  themselves,  whatever  may  ultimately  prove  their  true  nature, 
or  only  in  case  it  accords  with  the  description  given  of  them  by  the  seller. 
Thus,  the  purchaser  of  a  jewel,  sold  as  a  ruby  or  bezoar  stone,  which  turns 
out  to  be  a  gem  of  some  other  character,  may  or  may  not  be  bound  by  the 
purchase,  according  to  the  circumstances  of  the  case,  and  the  understanding 
between  himself  and  the  vendor.  But  where  the  sale  is  made  without  refer- 
ence to  specific  goods  or  merchandize,  this  doubt  cannot  arise,  and  the 
nature  and  object  of  the  contract,  can  only  be  gathered  from  the  language 
of  the  parties,  whether  expressed  verbally  or  reduced  to  writing.  And  even 
when  specific  property  is  referred  to,  still,  if  the  reference  be  through  the 
medium  of  a  sample,  the  contract  will  necessarily  be  so  far  executory,  as 
to  fail  of  effect,  unless  the  bulk  of  the  commodity  correspond  with  the 
sample. 

It  follows  therefore,  that  although  properly  speaking,  there  is  no  war- 
ranty of  quality  on  sale  by  sample,  yet  that  to  execute  the  contract,  and 
render  the  vendee  liable,  the  goods  delivered  must  correspond  with  the 
sample.  If  there  be  a  material  diiference  in  quality,  the  latter  on  refusing 
to  receive  the  goods,  or  returning  them  where  they  have  already  come  into 
his  hands,  may  resist   the  payment  of  the  purchase-money,  or  recover  it 


CHANDELOR     V.     LOPUS.  223 

back  if  paid.  Even  wlicre  he  has  received  and  used  the  goods,  on 
bringing  suit  against  the  vendor,  and  averring  a  contract  to  sell  mer- 
chandise of  like  quality  with  the  sample,  and  a  breach  of  such  contract, 
he  will  be  entitled  to  recover  whatever  damage  he  has  sustained  by  the 
inferior  quality  of  the  goods  actually  delivered.  Oneida  Manufacturing 
Co.  v.  Lawrence,  4  Cowen,  440;  Andrews  v.  Kneeland,  G  Cowen,  354; 
Gallagher  v.  Waring,  9  Wend.  20 ;  Boorman  v.  Johnson,  12  Wend.  566 ; 
Beebee  v.  Kobert,  12  Wend.  413  ;  Waring  v.  Mason,  18  Wend.  425.  In 
like  manner,  the  courts  of  Massachusetts  hold,  that  where  there  has  been  a 
sale  by  sample,  the  vendor  must  be  understood  to  have  contracted  to  sell 
and  deliver  goods,  corresponding  in  kind  and  quality  with  the  sample ;  and 
that  if  articles  of  different  character,  or  inferior  quality,  be  delivered,  there 
is  a  breach  of  contract  on  his  part,  for  which  he  may  be  made  liable  in 
damages.  Bradford  v.  Manley,  13  Mass.  139;  Williams  v.  Spafford,  8  Pick. 
250. 

The  general  doctrine,  that  when  a  vendor  does  not  fulfil  the  contract  of 
sale,  by  tendering  that  which  has  formed  the  subject-matter  of  the  contract, 
the  vendee  may  either  retain  or  recover  the  purchase-money,  is  recognised 
in  Pennsylvania ;  and  was  applied  in  Borrekins  v.  Bevan,  3  Rawle,  23,  to 
the  case  of  sales  by  sample. 

In  that  case,  however,  the  majority  of  the  court,  while  of  opinion  that  the 
sale  had  been  in  the  particular  instance  by  sample,  went  further,  and  held, 
that  the  subject-matter  of  the  sale  is  to  be  ascertained  in  all  cases,  whether 
the  purchaser  examines  the  goods  or  not,  by  the  terms  of  the  contract; 
and  that  if  the  articles  delivered  do  not  correspond  with  those  terms  in 
specie,  there  is  no  valid  execution  by  the  vendor,  or  obligation  on 
the  part  of  the  vendee.  In  the  v/ords  of  Kogers,  J.,  who  delivered  the 
opinion  of  the  court,  when  the  goods  delivered  "  do  not  correspond  in 
kind,  the  purchaser  has  a  right  to  say,  this  is  not  the  article  I  contracted 
for,  non  in  hrec  foedera  veni ;  and  this,  whether  he  complains  at  the 
time  of  the  delivery,  or  after,  unless  his  conduct  amounts  to  a  waiver  of 
indemnity."  In  illustration  of  this  view  of  the  law,  as  taken  by  the  court, 
he  put  the  case  of  a  purchaser  at  a  wineshop  who  should  ask  for  Madeira; 
and  held  that  he  would  not  be  obliged  to  accept  Tcneriffe,  sold  and  delivered 
to  him  by  the  wine  merchant  as  Madeira,  although  tasted  at  the  time  of 
making  the  sale.  From  the  opinion  of  the  court  so  far  as  it  held  that  to 
execute  a  contract  of  sale  in  a  case  free  from  fraud,  there  must  be  a  delivery 
corresponding  in  specie  with  the  terms  of  the  contract,  and  not  merely  with 
the  actual  subject-matter  contracted  for,  as  seen  by  the  vendee  or  his  agents, 
Gibson,  C.  J.,  and  Kennedy,  J.,  dissented. 

The  same  course  of  reasoning  was  pursued  by  the  Supreme  Court  of 
Massachusetts,  in  the  case  of  Hastings  v.  Lovering,  2  Pick.  214.  It  there 
appeared  by  the  wording  of  the  contract,  as  gathered  from  the  bill  of  sale 
and  the  evidence  before  the  court,  that  the  defendant  had  agreed  to  sell  the 
plaintiff  prime  winter  sperm  oil,  and  it  was  held  that  the  delivery  of  summer- 
strained  oil  would  not  satisfy  the  terms  of  the  contract,  and  that  the  buyer 
was  consequently  entitled  to  damages  for  the  breach.  As  the  oil  was  at  a 
distance  of  many  miles  from  the  place  of  sale,  at  the  time  when  it  was  made, 
the  court  was  fully  justified  in  looking  closely  to  the  terms  of  the  contract, 
as  the  only  means  of  discovering  its  subject-matter,  and  in  holding  that  it 


224  smith's   leading    cases. 

was  not  performed,  bj  the  delivering  of  a  thing  substantially  diflferent  from 
that  -which  those  terms  designated.  It  was  hold,  in  like  manner,  by  the 
Maryland  Court  of  Appeals,  in  the  case  of  Osgood  v.  Lewis,  2  Harris  & 
Gill,  495,  that  where  under  a  contract  for  the  purchase  of  winter  sperm  oil, 
and  a  bill  of  sale  in  which  the  oil  sold  was  thus  described,  summer-strained 
oil  was  delivered,  the  contract  was  broken  and  the  vendee  entitled  to  dam- 
ages. This  case  was  so  far  different  from  that  of  Hastings  v.  Lovering,  that 
the  oil  was  lying  at  the  wharf  when  sold,  and  might  therefore  have  been 
examined  by  the  purchaser.  The  weight  which  might  otherwise  have  been 
due  to  this  circumstance,  was,  perhaps,  diminished  by  the  fact  that  the  dif- 
ference between  the  two  sorts  of  oil,  though  one  of  chemical  constitution, 
could  not  be  discovered  in  ordinary  weather  by  the  most  careful  examina- 
tion, without  resorting  to  the  aid  of  analytic  experiment.  But  even  if  this 
had  not  been  so,  the  fact  that  the  sale  was  of  specific  merchandise,  which 
might  have  been  examined  by  the  purchaser,  could  only  have  served  as 
prima  facie  evidence  of  the  nature  of  the  contract,  and  could  not  have  con- 
trolled its  construction  as  finally  ascertained  from  other  sources.  Shepperd 
v.  Kain,  5  B.  &  Ad.  240.  A  sale  thus  made,  may  raise  a  presumption,  that 
the  vendee  knew  that  the  real  nature  of  the  property  purchased,  dilFered 
from  the  description  under  which  it  was  sold,  or  that  if  ignorant  of  this,  he 
was  willing  to  run  the  risk  of  its  being  difierent.  But  these  presumptions 
may  be  rebutted  by  other  circumstances,  or  by  clear  evidence  of  an  opposite 
understanding  between  the  parties.  The  recent  case  of  Henshaw  v.  Bob- 
bins 9  Metcalf,  83,  goes  to  the  full  extent  of  the  position,  that  even  where 
the  sale  is  of  specific  property  or  merchandise,  and  the  vendee  might  have 
discovered  its  real  nature  by  examination,  the  vendor  will  be  liable  if  it  vary 
in  kind  from  that  which  he  has  given  in  the  bill  of  sale  or  other  written 
evidence  of  the  contract.  And  the  result  must  evidently  be  the  same,  when 
the  contract  is  not  reduced  to  writing,  if  there  be  a  departure  from  its  terms 
as  proved  by  parol  testimony.     Mixer  v.  Coburn,  11  Metcalf. 

These  cases,  however,  have  no  bearing  on  the  doctrine,  that  a  warranty 
cannot  be  implied,  and  are  strictly  limited  to  the  point  which  they  profess 
to  decide,  that  so  far  as  the  terms  of  the  contract  are  express,  they  must  be 
pursued  by  the  vendor.  When,  therefore,  the  goods  delivered  correspond 
in  specie  with  those  sold,  the  vendee  will  have  no  remedy  for  a  failure  in 
quality,  unless  he  has  stipulated  for  quality  as  well  as  specie.  Thus,  in 
Windsor  v.  Lombard,  18  Pick.  1,  the  plaintiff  had  purchased  several  kegs 
of  mackerel  described  in  the  bill  of  parcels  as  No.  1  and  No.  2,  but  which 
proved  on  examination  to  be  of  very  inferior  quality,  and  much  damaged  by 
rust,  though  not  absolutely  unmarketable.  Under  these  circumstances,  it 
was  held,  that  the  action  could  not  be  maintained,  as  there  was  no  ground 
for  implying  a  warranty  of  quality,  and  the  substance  of  the  contract  was 
satisfied  by  the  delivery  of  mackerel,  which  had  been  inspected  and  branded 
in  a  manner  corresponding  with  the  terms  of  the  description,  although  they 
had  deteriorated  in  condition  before  the  sale.  The  same  ground  was  taken 
in  Mixer  v.  Coborn,  above  cited,  where  it  was  decided,  that  although  the 
vendee  might  resist  a  recovery  for  the  price  of  merchandise  sold  as  German 
cylinder  glass,  by  evidence  that  it  failed  to  answer  the  commercial  sense  of 
the  description,  either  in  quality  or  specie,  yet,  that  if  it  was  such  as  de- 
scribed, other  or  further  defects  in  quality  were  wholly  immaterial.     It  was 


CHANDELOR     V.     LOPUS.  225 

held,  in  like  manner,  in  Hyatt  v.  Boyle,  5  Gill  &  Johnson,  110,  that  no 
warranty  of  quality  is  to  be  implied  in  the  sale  of  chattels,  and  that  when 
the  goods  delivered  accord  with  the  terms  of  the  contract,  the  purchaser  is 
without  remedy,  even  for  hidden  defects  of  such  a  nature  as  not  to  be  dis- 
coverable by  inspection.  This  case  corresponds  as  closely  with  "Windsor  v. 
Lombard,  as  that  of  Osgood  v.  Lewis  with  Hastings  v.  Lovering,  and  the 
whole  show  when  taken  together,  a  substantial  accordance  between  the  law 
as  held  in  Massachusetts  and  in  Maryland. 

In  Jennings  v.  Gratz,  3  Rawle,  168,  the  doctrine  that  in  the  absence  of 
express  stipulation,  the  vendor  is  not  liable  for  a  failure  in  quality,  when 
there  is  a  correspondence  in  kind,  was  carried  to  the  extent  of  deciding  that 
a  sale  of  chests  of  tea  as  ^' Young  Hyson,"  which  proved  on  examination  to 
be  adulterated  by  a  mixture  of  leaves  of  other  plants,  did  not  render  the 
vendor  answerable  in  damages  to  the  vendee.     There  can  be  no  doubt  of  the 
soundness  of  this  decision,  if,  as  seems  to  have  been  the  case,  the  adultera- 
tion did  not  go  sufficiently  far  to  destroy  the  distinctive  character  of  the  tea 
as   '^  Young  Hyson,"   in  the  commercial  sense  of  the  term,  for  as  the  con- 
tract merely  specified  kind,  and  was  silent  as  to  quality,  there  could  be  no 
liability  on  the  part  of  the  vendor,  if  the  kind  were  the  same,  however  infe- 
rior the  quality.     But  in  the  more  recent  decision  of  Fraley  v.  Bispham,  10 
Barr,  320,  the  court  seem  to  have  supposed,  that  the  decision  in  Jennings  v. 
Gratz,  was  founded  on  a  distinction  between  a  failure  to  comply  with  the 
contract  as  to  kind  and  as  to  quality,  when  both  are  embraced  by  its  stipu- 
lations.    In  that  case  the  bill  of  sale  was  of  "  Superior  sweet-scented  Ken- 
tucky leaf  tobacco,"  and  the  tobacco  actually  delivered  was  of  inferior  quality, 
and  so  much  impaired  by  decay  as  to  have  a  disagreeable  smell.    Under  these 
circumstances,  relief  was  refused  to  the  purchaser,  on  the  ground  that  as  the 
seller  had  complied  with  the  terms  of  the  sale  as  to  specie,  he  was  not 
bound  to  go  further  in  the  absence  of  an  express  warranty  of  quality.     A 
similar  point  was  decided  by  the  Supreme  Court  of  Illinois,  in  Towell  v. 
Gate  wood,  2  Scammon,  22.     It  is  probable,  although  it  does  not  appear 
from  the  evidence,  that  the  description  of  the  tobacco,  in  Fraley  v.  Bispham, 
as   "superior   sweet-scented"    was   intended   merely  as   a   designation  of 
a  particular  sort  known  under  that  name  or  brand  in  commerce,  and  conse- 
quently referred  to  kind,  and  not  to  quality  or  condition.     If  so,  the  deci- 
sion was  substantially  right,  because  the  agreement  of  the  parties  was  silent 
on  the  latter  point,  and  was  fulfilled  as  to  the  former.     If,  however,  the 
terms  "  superior  and  sweet  scented,"  instead  of  referring  to  a  particular 
kind  of  tobacco,  were  intended  as  a  description  of  quality,  it  would  seem  to 
follow,  that  the  agreement  was  broken  by  the  failure  of  the  tobacco   to 
answer  that  description.     But  the  court  seem  to  have  supposed,  that  a  sub- 
stantial distinction  exists  between  the  effect  of  a  description  of  quality  and 
of  kind,  and  that  although  the  latter  is  prima  facie,  part  of  the  contract,  the 
former  is  not.     It  is  undoubtedly  true,  that  while  a  contract  of  sale  must 
express  the  kind  of  goods  sold,  it  may  be  silent  as  to  their  quality,  and 
that  under  ordinary  circumstances,  the  liability  of  the  vendor  cannot  be 
extended  by  implication,  or  carried  further  than   the  limits   fixed  by  his 
language.     But  when  the  words  of  description  employed  extend   both  to 
quality  and  specie,  he  ought  to  be  answerable  to  the  vendee  for  any  failure 
as  to  either.     It  can  hardly  be  denied,  that  where  the  vendor  agrees  to  fill 
Vol,  I. — 15 


226  smith's   leading  cases. 

an  order  sent  for  goods  of  a  particular  quality,  he  is  liable  if  they  do  not 
correspond  with  the  description  when  delivered;  and  there  seems  no  reason 
why  his  liability  should  be  diifercnt,  when  the  proposition  for  the  sale,  and 
the  description  of  the  goods,  is  furnished  by  him  in  the  first  instance,  with- 
out any  previous  application  on  the  part  of  the  vendee. 

Whatever  may  be  the  true  extent  and  bearing  of  the  doctrine  held  in 
Henshaw  v.  Robbins,  and  Borrekins  v.  Bevau,  it  is  unquestionably  at  vari- 
ance with  the  cases  of  Seixas  v.  Woods,  Swett  v.  Colgate,  and  Holden  v. 
Dakin.      Thus  in   Holden  v.  Dakin,  as  in   Henshaw  v.  Bobbins,  the  mer- 
chandise actually  sold,  failed  to  correspond  in  kind  with  the  terms  used  by 
the  vendor,  in  describing  it  at  the  time  of  the  sale,  but  while  the  right  of  the 
vendee  to  redress,  was  treated  as  indisputable  in  the  latter  case,  it  was  wholly 
denied  in  the  former.  In  the  recent  case  of  Carley  v.  Wilkins,  6  Barbour,  557, 
the  Supreme  Court  of  New  York  adhered  to  their  earlier  decisions,  and  held 
that  a  vendor  is  liable  only  for  a  false  affirmation  or  express  warranty,  and 
that  selling  an  article  as  of  a  particular  character,  is  neither  an  affirmation 
nor  a  warranty  that  it  possesses  that  character.     Nearly  the  same  ground 
was  taken  on  this  point  in  Barre  v.  Matthews,  6  Dana,  129.     And  it  was 
further  held,  that  a  declaration  or  statement,  setting  forth  that  flour  had 
been  sold  by  the  defendant  as  superfine,  which  proved  on  delivery,  to  be  of 
inferior  quality,  was  bad  even  after  verdict,  as  failing  to  set  forth  any  cause 
of  action.     So  far  as  regards  the  question  of  pleading,  the  case  of  Carley  v. 
Wilkins  is  a  mere  re-affirmance  of  that  of  Chandelor  v.  Lopus,  and  is  mani- 
festly correct,  for  it  must  depend  upon  circumstances,  whether  the  sale  of 
specific  property,  under  a  particular  description,  does  or  does  not  make  the 
description  a  part  of  the  contract,  and  the  statement  of  the  cause  of  action 
was  consequently  defective,  as  setting  forth  evidence  instead  of  the  conclu- 
sions of  fact,  which  were  sought  to  be  founded  upon  it.    Misncr  v.  Granger, 
4  Gilman,  69.     Where  the  vendee  relies  neither  on  misrepresentation  nor 
warranty,  and  seeks  to  recover  on  the  ground  of  the  failure  of  the  property 
sold,  to  correspond  with  the  description  given  by  the  vendor,  he  should 
declare  on  the  contract  as  executory  and  not  as  executed,  and  aver  that  the 
vendor  has  failed  to  comply  with  its  stipulations  by  delivering  that  which 
he  agreed  to  sell,  instead  of  merely  alleging,  as  in  Chandelor  v.  Lopus  and 
Carley  v.  Wilkins,  that  the  goods  were  sold  as  one  thing,  and  proved  to  be 
another.     Such  an  allegation   admits  that   the  sale  is    executed,  and  has 
transferred  the  right  of  property,  and  nothing  can  be  more  certain  than  that 
"where  this  is  the  case,  there  can  be  no  recoui'se  against  the  vendor,  unless 
on  the   ground  of  fraud  or  express  warranty.     The  general  doctrine,  that 
when  the  vendor  does  not  deliver  that  which  he  has  undertaken   to  sell, 
there  is  a  breach  of  the  contract,  is  recognised  in  New  York  as  well  as  Penn- 
sylvania and  Massachusetts.     The  difference  between  the  courts  of  these 
states  seems  to  be  merely,  as  to  the  circumstances  under  which  it  is  appli- 
cable. Thus,  it  is  held  in  Massachusetts,  that  in  order  to  ascertain  the  subject- 
matter  of  the  contract,  recourse  must  be  had  to  the  description  given  by  the 
vendor,  even  where  the   sale  is  of  specific  chattels  or  merchandise,  while 
many  of  the  cases  in  New  York,  determine  that  an  executed  contract  of  sale, 
must  be  construed  solely  by  reference  to  the  goods  themselves,  to  the  entire 
exclusion  of  the  language  held  by  the  parties,  and,  therefore,  that  the  right 
of  property  will  pass  to  the  vendee,  although  the  real  nature  of  the  thing 


CHANDELOR     V.      LOPUS.  227 

sold,  may  differ  wholly  from  that  which  it  was  his  avowed  intention  to  pur- 
chase, and  that  of  the  vendor  to  sell.  But  whichever  of  these  views  be  cor- 
rect, it  is  evident  that  neither  of  them  conflicts  with  that  taken  in  Chaudelor 
V.  Lopus,  which  is  confined  simply  to  the  point,  that  when  the  sale  is  exe- 
cuted the  declaration  must  be  either  in  tort  or  on  a  warranty.  And  it  must 
also  be  remembered,  that  however  general  the  language  of  the  Supremo 
Court  of  New  York,  in  Carley  v.  Wilkins,  it  had  been  previously  held  in 
the  same  tribunal,  in  Cramer  v.  Bradshaw,  10  Johnson,  484,  that  the  de- 
scription of  a  slave  in  a  bill  of  sale,  as  sound  in  wind  and  limb,  was  a  warranty 
of  his  soundness.  The  true  conclusion  on  the  whole  matter,  therefore,  seems 
to  be,  that  although  the  vendor  may  avoid  all  liability  by  silence,  and  can- 
not be  made  liable  for  mere  representations  unless  wilfully  false,  he  will 
notwithstanding  be  bound  by  a  verbal  or  written  description  of  the  property 
sold,  so  worded  as  to  enter  into  and  form  part  of  the  contract. 

There  can,  moreover,  be  no  doubt,  that  even  where  the  contract  of  sale  is 
executed,  and  still  more  where  it  is  executory,  the  vendor  will  be  liable  for 
any  departure  from  any  of  the  conditions,  which  are  necessarily  to  be  implied 
from  its  nature  and  the  circumstances  under  which  it  is  made*  In  Howard  v. 
Hoey,  23  Wend.  350,  the  contract  was  for  the  delivery  on  board  ship  at 
New  York,  of  good  merchantable  ale,  such  as  the  vendor  was  in  the  habit  of 
sending  South,  and  the  ale  actually  delivered,  proved  to  be  unsound  and 
unfit  for  yse,  on  its  arrival  at  New  Orleans.  This  was  a  manifest  breach  of 
the  express  stipulations  entered  into  by  the  vendor,  for  which  he  was  neces- 
sarily liable.  But  the  opinion  of  the  court  went  beyond  this  point,  and  fur- 
ther than  a  decision  on  the  facts  actually  before  them  required.  It  was 
admitted,  that  where  a  specific  chattel  is  sold,  the  liability  of  the  vendor 
does  not  extend  beyond  his  actual  engagement,  and  that  no  implied  condi- 
tion or  warranty  can  be  imported  into  the  contract.  But  it  was  held,  that 
when  the  contract  is  purely  executory,  and  without  reference  to  particular 
objects,  it  will  be  subject  to  an  implied  condition  that  the  goods  delivered 
under  it,  shall  be  merchantable  and  of  good  quality.  A  similar  view  was 
taken  in  the  case  of  Hart  v.  Wright,  17  Wend.  267. 

The  justice  of  this  doctrine  is  too  obvious  in  some  cases  to  admit  of 
denial.  Thus,  a  manufacturer,  who,  undertakes  to  make  goods,  to  order, 
is  bound  to  make  them  of  good  quality,  and  should  not  be  allowed  to  render 
a  defect  arising  from  a  want  of  proper  materials,  proper  skill,  or  proper 
exertion,  a  source  of  gain  to  himself,  or  of  loss  to  the  purchaser.  And, 
oven  when  the  contract  is  simply  to  furnish  the  goods,  and  not  to  make 
them,  there  would  still  seem  to  be  an  implied  condition,  that  they  shall 
te  good  and  merchantable.  Unless  this  were  the  law,  the  vendor  might 
select  and  set  apart  goods  of  the  most  inferior  quality,  without  a  spe- 
cific designation  of  the  property  purchased,  and  then  charge  the  vendee 
with  a  price  fixed  with  reference  to  those  of  a  much  better  description. 
Some  doubt  is  thrown  on  this  doctrine  in  the  cases  of  Kirk  v.  Nice,  2  Watts, 
867,  and  Kase  v.- John,  10  Id.  109;  but  it  may  be  presumed  to  be  the  law 
of  this  country,  as  it  unquestionably  is  that  of  England.  The  English  cases, 
however,  go  further  and  hold  that  the  sale  of  specific  chattels  for  a  particular 
purpose  by  a  manufacturer,  by  one  who  holds  himself  out  as  such,  or  even  by 
a  mere  dealer,  renders  hira  liable  for  any  defect  in  their  quality  or  construc- 
tion, which  makes  them  unfit  for  the  purpose  for  which  they  are  sold  (supra). 


228  smith's    leading    cases. 

The  inclination  of  the  court  in  Howard  v.  Hoey,  seems  to  have  been  in  favour 
of  these  decisions,  notwithstanding  their  apparent  inconsistency  with  the  rule 
of  caveat  emptor,  which  protects  the  seller  from  all  liabilities  which  he  haa 
not  expressly  assumed.  The  departure  from  this  rule  is  however  apparent, 
rather  than  real.  When  a  vendor  sells  goods  expressly  for  a  particular 
purpose,  his  liability  is  the  result  of  an  express  and  not  of  an  implied  under- 
taking ;  and  the  case  is  substantially  the  same,  where  he  is  informed  by  the 
vendee  of  the  purpose  which  he  has  in  view,  and  tacitly  adopts  that  as  the 
basis  of  the  contract,  for  the  language  held  by  either  party  in  making  a  con- 
tract when  assented  to  by  the  other,  becomes  the  language  of  both. 

The  doctrine,  that  a  party  who  undertakes  to  comply  with  an  order,  for  a 
particular  article,  must  furnish  one  of  good  quality,  and  fit  for  use,  was  ap- 
plied in  Kellogg  v.  Denslow,  14  Conn.  411,  to  the  case  of  machinery 
made  to  order  in  a  manufactory,  which  proved  on  delivery  to  be  so  badly 
manufactured,  as  not  to  answer  the  purpose  for  which  it  was  ordered.  And  on 
the  other  hand  the  distinction  taken  in  Chanter  v.  Hopkins,  between  a  defect 
arising  out  of  the  faulty  construction  of  a  machine,  and  one  inherent  in  the 
principle  on  which  is  constructed,  was  applied  in  Misner  v.  Granger,  4  Gril- 
man,  60,  to  protect  the  vendor  of  a  threshing  machine,  from  liability  for  its 
failure  to  answer  the  expectation  of  the  vendee. 

The  numerous  cases  which  recognise  on  the  right  of  the  vendee,  to  avoid 
the  contract  and  sue  for  damages,  where  the  vendor  has  been  guilty  of  fraud 
in  the  sale,  or  has  failed  in  the  performance  of  his  contract,  by  not  delivering 
that  which  he  agreed  to  sell,  are  very  generally  regarded  as  proceeding  on 
the  ground  of  an  express  or  implied  warranty.  If  this  view  were  correct,  it 
would  be  difficult  or  impossible  to  reconcile  them  with  the  views  presented, 
in  this  note.  But  on  referring  to  the  language  held  by  Lord  Abinger  in 
Chanter  v.  Hopkins,  (supra)  and  attentively  considering  the  cases  themselves, 
it  will  be  seen  that  they  really  proceed  on  the  ground  of  tort  or  an  entire  breach 
of  contract,  even  where  the  court  have  treated  the  question  as  one  of  warranty. 

This  is  the  more  evident,  because  in  most  of  these  cases  the  right  of  the 
vendee  to  disaffirm  the  sale  and  return  the  goods,  was  fully  admitted ;  while  it 
is  well  settled,  that  he  cannot  pursue  that  course  on  the  ground  of  a  mere 
breach  of  warranty,  unaccompanied  by  fraud  ;  Kase  v.  Johns,  10  Watts,  109  ; 
Voorhees  v.  Earl,  2  Hill,  288  ;  Carey  v.  Gruman,  4  Hill,  526 ;  Thornton  v. 
Wynn,  12  Wheaton,19.3 ;  Mondel  v.  Steel,  8  M.  &  W.  858  ;  Street  v.  Blay, 

2  B.  &  A.  456 ;  Gompertz  v.  Denton,  1  Cr.  &  M.  267 ;  Pateshall  v.  Trantor, 

3  Ad.  &  El.  103  ;  Young  v.  Cole,  3  Bing.  N.  C.  724.  It  is  indeed  obvious,  that 
the  numerous  cases  which  turn  on  what  is  called  an  implied  warranty  arising 
on  a  sale  by  sample,  really  proceed  on  the  ground,  that  a  vendor  who  has  not 
delivered  that  which  he  has  agreed  to  sell,  cannot  sue  for  the  purchase- 
money,  and  is  liable  to  an  action  by  the  vendee  for  his  breach  of  contract. 
That  the  rights  of  the  vendee  in  a  sale  by  sample,  do  not  grow  out  of  an  im- 
plied warranty,  but  depend  upon  the  failure  of  the  vendor  to  execute  the 
contract  into  which  he  has  entered,  is  moreover  evident  from  the  case  of  Boor- 
man  V.  Johnston,  12  Wendell,  566 ;  where  a  written  memorandum  was  exe- 
ecuted  of  a  sale  made  by  sample,  and  although  nothing  was  said,  either  as 
to  sample  or  warranty,  the  vendor  was  held  liable  for  the  failure  of  the  goods 
delivered,  to  correspond  in  quality  with  the  sample. 

It  is  sufficiently  evident,  that  the  engagement  implied  in  a  sale  by  sample, 
is  limited   strictly  to  the   correspondence    of  the  goods  with  the   sample 


CHANDELORV.    LOPUS.  229 

exhibited,  and  does  not  extend  to  their  character  or  quality  in  other  parti- 
culars. The  buyer  cannot  therefore  recover  damages,  for  any  defect  however 
gross,  which  is  common  both  to  the  sample  and  the  bulk  of  the  commodity  ; 
Parkinson  v.  Lee,  2  East.,  313. 

The  use  of  the  verb  warrantizo,  or  of  its  modern  equivalent,  is  essentially 
necessary,  in  order  to  create  an  express  warranty  of  title  in  the  conveyance 
of  land.  But  no  particular  phrase  is  requisite  to  raise  a  warranty  of  quality 
or  specie,  in  a  sale  of  chattels ;  an  apparent  intention  to  warrant  being  suf- 
ficient. Morrill  v.  Wallace,  9  New  Hampshire,  111.  Roberts  v.  Morgan, 
2  Cowen,  438.  Carley  v.  Wilkins,  6  Barbour's  S.  C.  Kinley  v.  Fitzpat- 
rick,  4  Howard's  Miss.  49.  McGregor  v.  Prime,  9  Yerger,  74.  Erwin  v. 
Maxwell,  3  Murphy,  241.  Ayres  v.  Park,  3  Hawke,  359.  Baum  v.  Ste- 
vens, 2  Iredell,  411.  Taggart  v.  Blackweller,  4  Iredell,  238.  Brooks  v. 
Dillahunty,  8  Porter,  134.  Bradford  v.  Bush,  10  Alabama,  386.  And 
as  the  use  of  the  word  warrant  is  not  necessary  in  fact,  it  need  not  be 
averred  in  pleading.  Thus  in  Chapman  v.  March,  19  John.  290,  where  the 
declaration  averred  "  that  the  defendant  undertook  and  promised  that  the 
horse  sold  the  plaintiff  was  sound,"  it  was  held  sufficient  as  an  averment  of 
warranty.  The  question,  whether  there  has  been  a  warranty  or  not,  depends 
upon  the  intention  and  understanding  of  the  parties,  as  collected  fi-om  their 
acts  and  expressions  at  the  time  of  the  sale ;  and  where  the  contract  is  not 
wholly  in  writing,  is  one  of  fact  for  the  jury,  under  the  direction  of  the 
court ;  Whitney  v.  Sutton,  10  Wend.  413  ;  although  in  this,  as  in  all  other 
cases,  their  verdict  should  be  set  aside,  when  contrary  either  to  the  law  or 
the  evidence,  and  ought  not  to  be  supported  in  favour  of  a  warranty,  unless 
the  evidence  is  sufficient,  expressly  or  by  implication,  to  establish  its  exis- 
tence as  a  part  of  the  contract.  McFarland  v.  Newman,  9  Watts,  35.  Duffee 
V.  Mason,  8  Cowen,  25;  Cook  v.  Mosely,  13  Wend.  277.  Kinley  v.  Fitz- 
patrick.  Kause  v.  Fort,  4  Blackford,  293.  Baum  v.  Stevens.  Taggart  v. 
Blackweller.  Barnett  v.  Stanton,  2  Alabama,  189.  Williams  v.  Cannon, 
9  Id.  348.  The  law  was  so  held  in  Foster  v.  Caldwell,  18  Vermont,  176, 
when  the  court  said,  that  whether  an  affirmation  made  at  the  time  of  sale  was 
a  warranty,  depended  upon  the  sense  in  which  it  was  made  by  one  party, 
and  understood  by  the  other,  and  was  a  question  of  fact  for  the  jury,  and 
not  of  law  for  the  court.  This  latter  branch  of  the  rule,  however,  only 
applies  when  the  contract  is  verbal,  for  when  it  is  reduced  to  writing,  it  will 
be  the  duty  of  the  court  to  instruct  the  jury,  as  to  its  meaning,  and  a  mere 
statement  in  the  bill  of  sale  of  a  horse,  that  he  is  considered  sound,  will  not 
justify  a  verdict  finding  a  warranty  of  soundness.  Watson  v.  Rowe,  16 
Vermont,  525. 

It  is  evident  from  what  has  been  said,  that  an  affirmation  intended 
as  an  undertaking,  will  take  effect  as  a  warranty.  Hillman  v.  Wilcox,  30 
Maine,  170,  but  that  it  will  not  when  made  as  a  mere  representation.  Yet 
the  question  has  often  been  treated  as  one  of  assertion,  and  not  of  contract, 
and  verdicts  have  been  sustained,  finding  a  warranty  on  evidence  of  represen- 
tations made  by  the  vendor,  without  proof  that  he  meant  to  make  himself 
answerable  for  their  correctness  absolutely,  or  beyond  the  point  to  which  his 
knowledge  extended.  Thus  it  was  held  in  the  case  of  The  Oneida  Manufac- 
turing Company  v.  Lawrence,  4  Cowen,  440,  that  a  posititive  assertion  made 
by  one  party,  and  relied  on  by  the  other,  would  take  effect  as  a  warranty ; 
and  in  Whitney  v.  Sutton,   10  Wend.  413,  a  representation  of  soundness, 


230  smith's  leading   cases. 

relied  on  as  such,  was  said  to  amount  to  a  warranty,  tlius  mali:ing  the  vendor 
answerable  for  the  absolute  accuracy  of  every  assertion  uttered  in  the  course 
of  the  sale,  which  is  of  a  nature  to  influence  the  mind  of  the  vendee.  This 
course  of  decision  was  criticised  by  Gibson,  C.  J.,  in  the  case  of  Borrekins  v. 
Bevan,  as  tending  to  destroy  the  practical  value  of  the  common  law  distinc- 
tion between  representation  and  warranty.  A  similar  criticism  may  be  made 
on  the  case  of  Morrill  v.  Wallace,  9  New  Hampshire,  111,  where  the  ques- 
tion for  the  jury  was  said  to  be,  whether  the  language  held  by  the  vendor 
was  intended  as  an  expression  of  opinion  as  to  the  nature  or  quality  of  the 
merchandise  sold,  or  as  a  positive  promise  or  afErmation.  The  true  distinc- 
tion seems  to  be  between  a  mere  assertion  or  representation  however  positive, 
extrinsic  to  the  contract,  although  relating  to  its  subject-matter,  and  influ- 
encing the  judgment  of  the  purchaser,  and  a  promise  or  undertaking  enter- 
ing into  the  contract,  and  forming  one  of  its  terms.  A  representation,  not 
in  the  nature  of  a  promise,  does  not  ordinarily  render  the  party  who  makes 
it,  legally  answerable  for  its  correctness,  even  where  it  is  positive  in  terms, 
and  not  a  mere  expression  of  opinion.  M'Farland  v.  Newman.  The  only 
exception  to  this  rule  is  in  the  case  of  the  contract  of  insurance,  where  it 
grows  out  of  the  implied  understanding  on  which  the  parties  contract,  and 
the  peculiar  nature  of  the  relations  subsisting  between  them.  A  vendor  may 
therefore  express  his  belief,  with  regard  to  the  nature  of  that  which  he  sells, 
without  rendering  himself  liable,  unless  he  express  it  in  a  form  to  induce 
the  impression  that  he  is  giving  a  warranty,  and  not  making  a  representation. 
Erwin  v.  Maxwell,  3  Murphy,  241.  Taggert  v.  Blackweller,  4  Iredell,  238. 
Hause  V.  Fort,  4  Blackford,  293.  But  when  such  a  statement  is  unqual- 
ified, it  will  be  a  question  for  the  jury,  whether  the  purchaser  was  not  justi- 
fied in  construing  it  as  a  promise  and  not  as  a  mere  assertion,  and  this  ques- 
tion is  one  which  they  may  and  will  frequently  determine  adversely  to  the 
seller,  who  ought  not  to  escape  from  liability  on  the  plea  that  his  language  is 
susceptible  of  an  interpretation,  different  from  that  in  which  it  was  probably 
understood  at  the  time  when  it  was  uttered  ;  Taggart  v.  Blackweller,  4  Ire- 
dell, 238  ;  Roberts  v.  Morgan ;  Duffee  v.  Mason  ;  Cook  v.  Mosely ;  Ilillman 
V.  Wilcox,  30  Maine,  170. 

The  courts  of  New  York,  have  been  not  a  little  inconsistent,  in  construing 
language  as  a  warranty,  in  cases  in  which  it  is  less  susceptible  of  that  con- 
struction, than  in  others  in  which  they  have  emphatically  held  it  to  be 
nothing  more  than  a  mere  representation.  If  matter  of  description  or  repre- 
sentation, can  be  treated  as  a  warranty  in  any  case,  it  should  be  so  when 
incorporated  with  the  written  memoranda  or  evidence  of  the  contract.  Yet 
in  Swett  v.  Colgate,  an  advertisement  of  the  merchandize  in  question  as 
barilla,  before  the  sale,  and  a  description  of  it  as  such  in  the  bill  of  par- 
cels delivered  to  the  purchaser,  was  held  insufiicient  to  constitute  a  warranty, 
while  in  Cook  v.  Mosely,  the  assertion  of  the  vendor  that  the  mare  sold  to 
the  plaintiff  was  sound,  and  that  he  would  not  be  afraid  to  warrant  her,  was 
held  to  justify  a  verdict  finding  an  express  warranty.  It  is  difiicult  to 
understand  why  an  effect  should  have  been  given  to  an  incidental  assertion 
in  the  one  case,  which  was  denied  to  the  sum  and  substance  of  the  contract 
in  the  other.  Justice  cannot  be  done  as  between  vendor  and  purchaser, 
without  holding,  on  the  one  hand,  that  mere  representation  forms  no  part  of 
the  contract,  and  on  the  other,  that  the  production  and  sale  of  goods,  as  pos- 


CHANDELOR    V.     LOPUS.  231 

sessing  a  particular  cliaracter,  is  not  only  a  representation,  but  an  actual 
stipulation  that  they  possess  it. 

The  eflfect  which  should  be  attributed  to  an  advertisement,  or  other  gene- 
ral repi'esentation  of  the  vendor,  as  showing  what  was  the  governing  inten- 
tion of  the  parties  at  the  time  of  entering  into  the  contract,  and  thus  defining 
its  subject-matter,  was  strongly  stated  by  Parson's,  C.  J.,  in  the  case  of 
Bradford  v.  Manly,  13  Mass.  139,  where  he  said,  "  A  case  similar  to  this  iu 
principle,  came  before  me  two  or  three  years  ago  at  Nisi  Prius.  An  adver- 
tisement appeared  in  the  papers,  which  was  published  by  a  very  respectable 
mercantile  house,  offering  for  sale  good  Caraccas  Cocoa.  The  plaintiffmade 
a  purchase  of  a  considerable  quantity,  and  shipped  it  to  Spain,  having 
examined  it  at  the  store  before  he  purchased ;  but  he  did  not  know  the  dif- 
ference between  Caraccas  and  other  cocoa.  In  the  market  to  which  he 
shipped  it,  there  was  a  considerable  difference  in  value  in  favour  of  the 
Caraccas.  It  was  proved  that  the  cocoa  was  of  the  growth  of  some  other 
place,  and  that  it  was  not  worth  so  much  in  that  market.  I  held  that  the 
advertisement  was  equal  to  an  express  warranty,  and  the  jury  gave  damages 
accordingly.  The  defendants  had  eminent  counsel,  and  they  thought  of 
saving  the  question,  but  afterwards  abandoned  it,  and  suffered  judgment  to 
go  against  them."  The  general  principle,  that  whether  the  sale  of  a  specific 
chattel  be  executed  or  not,  is  a  question  of  intention,  and  that  it  will  fail  of 
effect  where  the  propert}'  in  question,  proves  to  be  substantially  different 
from  that  which  it  was  supposed  to  be  by  the  parties,  is  also  sustained  by 
the  opinion  of  the  court  in  Borrekins  v.  Bevan ;  in  which  it  was  said,  that 
a  wine  merchant  who  should  sell  teneriffe  to  a  customer  as  madeira,  could  not 
defend  himself  in  an  action  brought  for  a  breach  of  contract,  on  the  ground 
that  the  wine  was  examined  and  tasted  when  it  was  purchased.  The  same 
doctrine  was  held  in  Hastings  v.  Lovering,  where  the  description  in  the  bill 
of  parcels,  was  taken  as  prima  facie  evidence  of  the  subject-matter  of  the 
contract.  And  in  Henshaw  v.  Robins,  the  language  held  by  Parsons,  C.  J. 
in  Bradford  v.  Manly,  was  cited  as  ruling  the  law  in  Massachusetts;  and  it 
was  decided  that  counts  for  money  had  and  received,  and  for  a  breach 
of  warranty,  might  both  be  sustained,  by  showing  that  the  defendant  had 
sold  specific  merchandize  as  indigo,  and  described  it  as  such  in  the  bill  of 
parcels,  which  proved  on  delivery  to  be  a  mixture  of  Prussian  blue  and 
chromate  of  iron,  although  the  sale  had  been  made  with  full  opportunity  for 
inspection. 

In  this  case,  as  well  as  in  that  of  Bradford  v.  Manly,  while  the  nature 
of  the  obligation  imposed  on  the  vendor  by  the  contract,  was  treated  as  one  of 
warranty,  the  vendee  was  held  to  be  entitled  to  avoid  the  contract  and  recover 
back  the  purchase  money,  although  the  breach  of  a  mere  warranty,  however 
flagrant,  does  not  amount  to  a  total  failure  of  performance,  nor  authorize  a 
return  of  the  goods,  and  abrogation  of  the  sale.  It  is,  however,  probable,  that 
in  using  this  language,  the  court  only  meant  to  say,  that  the  agreement  of  the 
vendor  bound  him  to  the  delivery  of  goods  corresponding  with  its  terms,  and 
was  not  a  mere  executed  sale  of  a  specific  chattel.  But  in  consequence  of 
this  want  of  precision,  these  cases  do  not  throw  much  light  on  the  somewhat 
difficult  question,  whether  the  obligation  imposed  by  the  sale  of  goods,  aa 
answering  a  particular  description,  is  to  be  regarded  as  a  mere  warranty,  or 
as  entering  into  the  substance  of  the  contract,  and  entitling  the  vendee  to 


232  smith's    leading  cases. 

return  the  goods  if  it  be  broken,  which  is  one  of  considerable  importance 
to  the  rights  and  remedies  of  the  parties. 

Where  the  contract  rests  in  description,  and  the  character  of  the  goods 
to  be  delivered  is  ascertained  only  by  its  terms,  it  must  be  executory  in  all 
cases,  whether  the  words  employed  are  those  of  actual  sale,  or  of  mere  un- 
dertaking, for  no  property  can  pass  until  some  specific  chattel  has  been  set 
apart  by  the  vendor,  as  coming  within  its  provisions.  In  this  case  there  is 
no  doubt  that  if  the  goods  thus  designated,  do  not  correspond  with  the  terms 
of  the  contract  the  breach  will  be  total,  and  the  vendee  will  not  be  bound  to 
receive  them.  On  the  other  hand  it  is  equally  well  settled,  that  where  the 
subject-matter  of  the  sale  is  designated  at  the  time  by  both  parties,  as  con- 
sisting of  a  specific  chattel  or  parcel  of  merchandize,  the  contract  will  be 
executed,  and  any  undertaking  for  the  quality  or  nature  of  what  is  sold, 
a  mere  collateral  stipulation  or  warranty,  which  will  give  a  distinct  and 
several  cause  of  action  against  the  vendor,  if  broken;  but  will  not 
deprive  him  of  the  right  of  recovery  against  the  vendee,  if  unperformed. 
But  there  are  numerous  intermediate  cases,  in  which,  while  a  certain 
reference  is  had  to  specific  chattels,  there  is  more  or  less  evidence,  that 
the  contract  is  based  wholly,  on  their  supposed  accordance  with  some- 
thing else,  which  forms  the  true  subject-matter  of  the  sale.  Thus,  even 
where  a  specific  parcel  of  merchandize  is  set  forth  in  writing,  as  that  which 
the  vendor  has  agreed  to  sell,  and  the  vendee  to  buy,  if  the  sale  have  been 
made  upon  the  exhibition  of  a  sample,  the  substantial  identity  of  the  mer- 
chandize with  the  sample,  will  be  of  the  essence  of  the  contract,  which  will 
fail  of  efi'ect  if  they  prove  to  be  difi"erent.  In  like  manner,  where  the 
vendor  holds  himself  out  by  advertisement,  as  possessed  of  merchandize  of 
a  particular  description,  a  subsequent  contract  for  its  purchase  will  be  con- 
sidered prima  facie,  as  based  upon  the  representation  thus  made,  and  this 
presumption  will  not  be  rebutted,  by  showing  that  the  sale  was  finally  con- 
cluded, after  an  exhibition  and  examination  of  the  merchandise  itself,  if  it 
appear  that  the  intention  of  the  vendee  had  reference  primarily  to  the  adver- 
tisement, and  the  acquisition  of  what  was  there  described;  and  that  the 
purchase  in  question  was  a  mere  means  to  that  end.  In  this  case  the  assent 
of  the  vendee  to  buy  the  particular  property  exhibited,  will  be  controlled 
by  his  general  intention,  and  although  it  may  have  the  efiect  of  executing 
the  contract,  and  passing  the  right  of  property,  if  not  retracted,  it  will  not 
preclude  him  from  showing  that  it  was  given  under  an  erroneous  impression 
of  fact,  created  by  the  language  or  conduct  of  the  vendor.  But  although 
/there  is  no  rule  of  law,  which  precludes  the  possibility  of  a  sale  subject  to 
an  implied  condition,  that  the  goods  sold  are  of  a  particular  nature,  even 
where  the  parties  contract  with  reference  to  specific  chattels,  which  are  sup- 
posed by  one  or  both  to  satisfy  the  condition,  the  presumption  is  undoubt- 
edly the  other  way,  prima  facie,  and  in  favour  of  regarding  every  such  sale 
as  unconditional,  and  as  entitling  the  vendor  to  enforce  it,  however  much 
the  real  nature  of  the  property  sold  may  differ  from  that  which  it  was  sup- 
posed to  be.  Under  these  circumstances,  the  latter  can  only  protect  him- 
self by  alleging  a  warranty,  when,  as  we  have  seen,  the  question  will  depend 
on  whether  the  statements  made  by  the  vendor  at  the  time  of  the  sale,  were 
understood  as  mere  representations,  or  as  forming  part  of  the  contract. 

There  can  be  no  doubt,  that  when  the  vendee  is  acquainted  with  the  real 


CHANDELOR    V.     LOPUS.  233 

nature  of  that  -which  he  purchases,  he  cannot  rely  on  its  failure  to  accord 
^vith  the  representation  or  description  given  of  it  by  the  vendor,  as  a  breach 
either  of  a  warranty  of  the  substance  of  the  contract.  This  rule  is  essen- 
tially necessary  for  the  right  construction  of  the  language  of  trade,  which 
frequently  designates  things  by  technical  or  conventional  names,  which  are 
well  known  not  to  express  the  true  nature  of  that  to  which  they  are  applied. 
Thus  it  was  held  in  Welsh  v.  Carter,  1  Wend.  185,  that  the  vendor  was  not 
liable  for  selling  a  mixture  of  charcoal  and  common  salt  as  barilla,  where  it 
appeared  that  it  had  been  examined  and  analyzed  by  the  vendee,  before  the 
purchase. 

Notwithstanding  the  general  rule,  that  a  suit  in  tort  cannot  be  based 
upon  contract,  it  is  well  settled  that  an  action  on  the  case  may  be  sus- 
tained for  a  mere  breach  of  warranty,  without  evidence  of  any  fraud  or 
misrepresentation  on  the  part  of  the  defendant;  Williamson  v.  Allan- 
son,  2  East,  446;  Jones  v.  Bright,  5  Bing.  533;  Brown  v.  Edgington, 
2  N.  &  G..279.  In  thus  allowing  a  declaration  in  tort,  to  be  supported 
by  evidence  .of  a  mere  breach  of  contract,  these  cases  are  anomalous 
at  the  present  day,  however  consistent  with  the  earlier  precedents.  The 
action  of  assumpsit  was  once  in  reality,  as  it  still  is  in  name,  an  action  on 
the  case,  and  the  gravamen  of  the  complaint  was  the  wrong  done  the 
plaiutiflp,  by  the  defendant's  breach  of  promise,  which  was  always  alleged  to 
be  fraudulent  in  the  pleadings,  and  might  be  proved  to  be  so  in  fact.  Fraud 
may  still  be  shown  in  assumpsit,  in  aggravation  of  damages,  though  not  as 
the  substantial  cause  of  action ;  and  the  plaintiff  may  recover  when  the  evi- 
dence shows  that  the  promise  declared  on,  was  meant  as  a  fraud,  and  may  even 
aver  and  prove  that  it  was  made  deceitfully  and  fraudulently;  Hillman  v. 
Wilcox,  30  Maine,  170;  Stuart  v.  Wilkins,  1  Douglass,  18;  but  a  promise 
must  be  proved,  in  order  to  sustain  the  action.  Thus,  in  The  Executors  of 
Evertson  v.  Miles,  evidence  that  the  defendant  had  represented  a  horse  to 
be  sound  and  gentle,  with  a  knowledge  that  such  was  not  the  case,  was  held 
inadmissible  under  a  count  in  assumpsit  on  a  warranty,  or  without  a  decla- 
ration in  case,  setting  forth  a  scienter,  and  giving  full  notice  of  the  real 
nature  of  the  cause  of  action.  And  on  the  other  hand,  when  the  action 
is  on  the  case  for  deceit  in  the  sale  of  goods,  and  a  false  representation  on 
the  part  of  the  vendor,  is  averred  as  the  substance  of  the  complaint,  there 
can  be  no  recovery  without  proof,  that  the  defendant  was  aware  of  the  false- 
hood of  his  representations,  at  the  time  of  making  them;  Stone  v.  Denny, 
4  Metcalf,  151;  Freeman  v.  Baker,  5  B.  &  A.  797.  This  course  of  deci- 
sion, is  fully  in  accordance  with  the  doctrines  of  modern  pleading,  which 
treat  actions  on  the  case,  as  substantially  actions  of  tort,  and  only  appropriate 
when  the  injury  complained  of,  arises  from  the  breach  of  a  general  duty, 
and  not  merely  of  a  special  contract.  It  is  therefore  somewhat  inconsistent, 
to  permit  a  suit  in  case,  to  be  brought  on  a  warranty,  in  the  absence  of 
fraud  or  wilful  deception.  The  presumption  against  intentional  wrong, 
seems  to  be  stronger  where  the  vendor  gives  a  warranty,  which  turns  out  to 
be  untrue,  than  where  he  makes  an  unfounded  representation,  for  he  is 
necessarily  liable  for  the  truth  of  his  assertions  in  the  former  case,  while 
proof  of  wilful  falsehood  must  be  given,  in  order  to  charge  him  in  the  latter. 
The  mode  of  declaring  adopted  in  Williamson  v.  Allanson,  is  however  too 
well  established  to  be  called  in  question;  and  it  is  well  settled,  both  in  Eng- 


234  smith's   leading    cases. 

land  and  this  countr}',  that  an  action  on  the  case  may  be  sustained  for  a 
breach  of  warranty,  without  showing  that  the  defendant  knew  it  to  be  false 
at  the  time  when  it  was  given;  McLeod  v.  Tatt,  1  Howard's  Miss.  11.; 
Osgood  V.  Lewis,  2  Harris  &  Gill,  495;  Hillman  v.  Wilcox,  30  Maine,  170"; 
House  V.  Fort,  4  Blackford,  293;  Beeman  v.  Buck,  13  Vermont,  53;  West 
V.  Emery,  17  Id.  584;  A^ail  v.  Strong,  10  Id.  457;  Bartholomew  v.  Bush- 
nell,  20  Conn.  271. 

It  was  held  in  Beeman  v.  Buck,  Vail  v.  Strong,  and  West  v.  Emery, 
that  when  the  declaration  on  a  warranty  is  in  case,  with  an  allegation  that 
it  was  made  fraudulently,  it  may  be  supported  either  by  proving  the  war- 
ranty, without  proof  of  the  fraud,  or  by  proving  wilful  misrepresentation, 
without  proof  of  the  warranty.  It  was  however  admitted  in  West  v.  Emery, 
that  while  there  might  be  a  recovery  under  the  same  declaration,  on  evidence 
either  of  a  breach  of  contract,  apart  from  actual  fraud,  or  of  fraud  apart 
from  breach  of  contract,  the  two  causes  of  action  were  substantially  differ- 
ent, and  that  although  the  plaintiff  might  prove  a  qualified  representation 
of  soundness,  under  an  allegation  of  an  unqualified  warranty,  if  the  object 
were  to  show  fraud,  he  could  not  do  so,  if  he  relied  merely  on  a  breach  of 
warranty,  and  not  on  fraud.  And  in  Bartholomew  v.  Bushnell,  20  Conn. 
271,  it  was  decided,  that  if  the  plaintiff  declared  in  tort  on  a  war- 
ranty, which  he  failed  to  prove,  he  could  not  make  out  his  case  by  evi- 
dence of  wilful  misrepresentations,  not  amounting  to  a  warranty.  All  diffi- 
culty, on  this  point,  may  be  avoided  by  joining  a  count  for  wilful  misrepi'e- 
sentation,  to  a  count  alleging  a  fraudulent  warranty;  but  -the  difference  of 
opinion  existing  between  the  courts  of  Vermont  and  Connecticut,  illustrates 
the  essential  incongruity  of  the  form  of  action  sanctioned  in  Williamson  v. 
AUanson,  with  the  modern  doctrine  of  pleading. 

Whatever  may  be  thought  of  the  theoretical  soundness,  of  allowing  an 
action  of  tort  to  be  sustained  by  evidence  of  a  mere  breach  of  contract, 
without  proof  of  actual  falsehood  or  fraud,  its  practical  advantage  is  unques- 
tionably great.  When  the  plaintiff  declares  on  a  warranty  in  assumpsit,  he 
cannot  introduce  a  count  in  tort,  without  a  misjoinder  of  actions,  nor  reco- 
ver on  proof  of  misrepresentation,  however  gross,  unless  it  amounts  to  a 
warranty.  And  as  it  is  often  impossible  to  determine  beforehand,  what  view 
the  court  and  jury  will  take  of  the  evidence,  and  whether  they  will  regard 
it  as  proving  a  warranty,  and  not  fraud,  or  fraudulent  misrepresentation,  and 
not  warranty,  the  plaintiff  may  be  unexpectedly  defeated,  even  when  the 
merits  are  in  his  favour,  unless  he  resort  to  the  expedient  of  framing  the 
whole  declaration  in  case,  and  alleging  falsehood,  in  one  count,  and  a 
mere  breach  of  warranty  in  another.  In  this  way  all  technical  difficulties 
may  be  obviated,  and  a  recovery  had  according  to  the  substantial  justice  of 
the  case,  as  finally  disclosed  at  the  trial. 

Where  the  vendor  offers  to  warrant  at  the  commencement  of  a  treaty  of 
sale,  his  offer  will  be  incorporated  with  the  conclusion  of  the  contract, 
although  not  effected  until  some  days  afterwards :  Wilmot  v.  Hurd,  11  Wend. 
585.  If,  however,  the  contract  be  finally  consummated  by  a  writing,  in 
which  the  previous  parol  warranty  does  not  appear,  all  that  is  excluded 
from  the  writing,  will  be  presumed  to  have  been  excluded  from  the  minds 
and  assent  of  the  parties,  at  the  time  when  it  was  written  ;  and  the  ordinary 
rule,  that  parol  evidence  cannot  be  given  to  modify  a  written  contract,  will 


CHANDELOR     V.     LOTUS.  235 

preclude  the  vendee  from  relying  on  the  warranty ;  Van  Ostrand  v.  Keed, 
1  Wend.  424,  432;  Mumford  v.  M'Pherson,  1  Johnson,  417;  Reed  t. 
Wood,  9  Vermont,  288;  Dean  v.  Mason,  4  Conn.  432;  Bush  v.  Brad- 
ford, 15  Alabama,  317  ;  Cain  v.  Old,  2  B.  &  C.  627.  And  Avhen  the 
plaintiffs  in  a  suit  for  the  price  of  goods  sold  to  an  agent,  proved  an  autho- 
rity from  the  principal  to  make  the  purchase,  if  warranted,  and  then 
gave  in  evidence  a  written  memorandum  of  the  sale  signed  by  the  agent, 
in  which  nothing  was  said  about  warranty,  it  was  held  that  they  could  not 
recover  by  proving  that  the  goods  had  been  warranted  verbally  :  Peltier 
V.  Collins,  3  Wend.  459.  The  court  were  of  opinion,  that  if  the  warranty 
in  parol  did  not  form  part  of  the  contract,  it  was  void,  as  not  pursuing  the 
authority;  and  if  it  did,  that  the  whole  contract  was  avoided  by  the  Sta- 
tute of  Frauds,  because  one  of  its  material  points  waa  not  expressed  in 
■writing. 

It  can  hardly  be  necessary  to  state,  that  a  misrepresentation  or  warranty 
made  or  given,  subsequently  to  the  conlusion  of  a  contract  of  sale,  without 
some  new  matter  between  the  parties,  cannot  support  either  an  action  of 
deceit  or  warranty  ;  in  the  one  case,  from  the  absence  of  consideration  to 
the  vendor,  in  the  other  of  injury  to  the  vendee;  Yearbook,  5  Henry  7, 
7;  Boseoria  v.  Thomas  3  Q.  B.  234 ;  Hogins  v.  Plympton,  11  Pick.  97. 
The  same  point  was  decided  in  Bloss  v.  Kitridge,  5  Vermont,  28,  where  it 
was  held,  that  if  the  defect  appear  on  the  face  of  the  declaration,  it  will  not 
be  cured  by  a  verdict. 

Although  what  has  passed  in  parol,  cannot  be  incorporated  into  a  writ- 
ten contract,  yet,  as  already  stated,  fraudulent  parol  representations  pre- 
ceding or  accompanying  such  a  contract,  and  on  the  faith  of  which  it  was 
entered  into  by  the  vendee,  will  be  a  sufficient  ground  either  for  an  action 
of  deceit,  or  for  avoiding  the  sale  altogether  on  the  score  of  fraud  :  Munford 
V.  M'Pherson,  1  Johnson,  418 ;  Wilson  v.  Marsh,  ib.  504 ;  Cozzins  v. 
Whitaker,  5  Stewart  &  Porter,  322. 

It  was  determined  in  the  case  of  Nelson  v.  Cowing,  6  Hill,  336,  that  an 
agent,  whether  general  or  special,  with  authority  to  sell,  is  presumed, 
unless  the  contrary  be  made  to  appear,  to  have  authority  to  warrant.  But 
it  is  more  difficult  to  determine,  how  far  a  principal  is  answerable  for  the 
truth  of  the  representations  of  his  agent,  when  made  without  his  authority. 
In  Cornfoot  v.  Fowke,  6  M.  &  W.  358,  statements  were  made  by  an  agent, 
which  were  proved  to  be  inconsistent,  with  the  facts  as  known  to  the  prin- 
cipal, but  there  was  no  evidence  that  he  was  aware  of  their  being  made,  or 
that  the  agent  knew  them  to  be  false.  It  was  held  by  the  majority  of  the 
court,  Abinger,  C.  B.,  dissenting,  that  as  no  positiv^e  falsehood  or  fraud  was 
made  out,  the  contract  was  not  vitiated,  and  the  plaintiff  was  entitled  to 
recover  in  the  suit  which  he  had  brought  upon  it.  The  same  question 
arose  in  Fuller  v.  Wilson  3  Q.  B.  58,  in  an  action  of  deceit  against  the 
principal,  on  the  ground  of  statements  made  by  the  agent,  which  though 
untrue  in  point  of  fact,  were  not  known  to  be  so  by  the  latter.  The  opinion 
of  the  court  as  delivered  by  Lord  Denman,  sustained  the  action  on  the  ground 
taken  by  Lord  Abinger  in  Cornfoot  v.  Fowke,  that  in  such  cases  there  is 
some  moral  fraud  in  the  conduct  of  the  principal,  in  concealing  a  material 
fact,  and  in  that  of  the  agent  in  making  a  stateiiient  which  he  docs  not  know 
to  be  positively  true.     But  this  determination  was  reversed  on  error  by  the 


236  smith's    leading   cases. 

Exchequer  Chamber,  Wilson  v.  Fuller,  3  Q.  B.  08.  The  King's  Bench 
having  decided  a  similar  point  the  same  way  in  Evans  v.  Collins,  5  Q.  B. 
804,  on  the  authority  of  a  previous  decision,  supposed  to  be  in  point  with 
the  special  cirurastances  of  the  case,  were  again  reversed  by  the  Court 
of  Exchequer  Chamber,  Collins  v.  Evans,  Id.  819,  on  the  broad  ground, 
that  an  action  can  bo  sustained,  for  the  injury  resulting  from  a  state- 
ment which  is  honestly  made,  although  untrue  in  fact,  and  that  a  party  who 
seeks  to  protect  himself,  or  to  charge  another,  on  the  ground  of  misstate- 
ments made  in  the  course  of  a  transaction,  must  show  that  they  were  known 
to  be  untrue  by  the  person  who  made  them  ;  in  other  words,  that  there 
was  actual  falsehood,  as  opposed  to  mere  mistake,  or  misapprehension. 
This  decision  is  fully  sustained  by  the   authorities  :   Moens  v.   Heyworth, 

10  M.  &  W.  147;  Taylor  v.  Ashton,  11  Id.  401 ;  Ormrod  v.  Hath,  14  Id. 
651 ;  Russell  v.  Clark's  ex'ors,  7  Cranch,  60 ;  Young  v.  Cavell,  8  John- 
sen,  25 ;  Tryon  v.  Whitmarsh,  1  Metcalf,  1,  and  seems  to  be  a  necessary 
consequence  of  the  general  rule,  that  where  the  plaintiff  has  not  sufficient 
ter  to  sustain  an  action  on  the  contract,  he  cannot  recover  by  turning  it 
it  into  a  proceeding  in  tort,  unless  he  can  show  some  actual  wrong  on  the 
part  of  the  defendant:  Rawlings  v.  Bell,  1  C.  &  B.  951. 

The  question  of  the  good  faith  of  the  defendant,  is  however,  one  of 
evidence  for  the  jury,  under  the  direction  of  the  court;  and  a  party  will 
not  only  be  liable,  as  in  Hazard  v.  Irwin,  for  the  false  assertion  of  a 
knowledge  which  he  does  not  possess,  but  where  his  representations,  al- 
though true  in  themselves,  are  so  worded  as  to  give  the  idea,  that  they  con- 
vey the  whole  truth,  while  a  material  fact  is  kept  back  with  a  view  to  de- 
ceive, and  with  the  effect  of  creating  a  false  impression.  Allen  v.  Addington, 

7  Wend.  10;  11  id.  75;  Kidney  v.  Stoddart,  7  Metcalf,  252.  It  would 
seem,  moreover,  that  a  vendor  may  be  made  answerable  for  gross  neglect 
in  his  dealings  with  a  vendee,  as  well  as  in  any  of  the  other  relations  of  life  ; 
but  in  order  to  recover  on  this  ground,  the  declaration  must  be  so  framed 
as  to  show  that  the  gist  of  the  action  is  for  negligence,  and  not  for  deceit. 

The  vendee  may  of  course  recover  damages  on  a  warranty,  for  a  defect, 
of  which  he  was  ignorant  at  the  time  of  the  purchase,  even  when  it  was 
made  with  full  opportunity  for  examination,  or  where  the  goods  have  been 
retained,  and  their  price  paid  in  full,  after  the  defect  was  discovered ;  Adams 
v.  Rogers,  9  Watts,  123  ;  Boorman  v.  Johnston,  12  Wend.  566 ;  Cook  v. 
Mosely,  13  id.  279 ;  Kellogg  v.  Deuslow,  14  Conn.  411 ;  although  these 
circumstances  may  afford  ground  for  an  argument  in  the  one  case,  that  the 
goods  were  not  really  defective,  and  in  the  other,  that  they  were  known  to 
be  so  when  purchased,  and  thus  authorise  the  jury  to  find  for  the  defen- 
dant. And  it  is  now  generally  admitted,  that  instead  of  resorting  to  an 
action  on  the  warranty,  he  may  wait  until  suit  has  been  brought  against 
him  for  the  purchase-money,  and  then  take  advantage  of  the  breach;  not 
as  a  technical  set-off,  but  as  proof  of  failure  of  consideration,  and  in 
mitigation  of  damages.     McAllister  v.  Rcab,  4  Wend.  489,  S.  C,  in  error  ; 

8  Wend.  189;  Judd  v.  Dennison,  10  Wend.  513;  Boorman  v.  Johnston, 
12  Wend.  556 ;  Strigleman  v.  Jeffries,  1  S.  &  R.  478  ;  W^ilmot  v.  Hurd, 

11  Wend.  585;  Street  v.  Blay,  2  B.  &  Ad.  456;  Harrington  v.  Stratton, 
22  Pick.  510. 

Although  a  contract  of  sale  cannot  be  avoided  for  a  breach  of  warranty, 


CHANDELOR    V.    LOPUS.  237 

unaccompanied  by  fraud,  yet  it  will  not  be  binding,  even  when  there  is  neither  ^ 
warranty  nor  fraud,  unless  the  goods  delivered  under  it  correspond  with  its 
terms.  Under  these  circumstances,  whether  the  purchaser  has  returned  or  re- 
tained the  goods,  he  is  entitled  to  show  that  they  are  not  such  as  he  agreed 
to  buy,  either  as  a  cause  of  action  against  the  vendor  for  failing  to  fulfil  his 
contract,  was  a  defence  to  an  action  against  himself  for  the  purchase-money. 
Borrekins  v.  Bevan,  3  Rawle,  23 ;  Hastings  v.  Levering,  2  Pick.  215 ; 
Mixer  V.  Coborn,  11  Metcalf,  139;  Osgood  v.  Lewis,  2  Harris  &  Gill,  495; 
Kellogg  V.  Denslow,  14  Conn.  411 ;  Wright  v.  Barnes,  id.  519  ;  Howard 
V.  Hoey,  23  Wend.  350 ;  Hart  v.  Mills,  13  M.  &  W.  85. 

A  mere  breach  of  warranty  unattended  by  fraud,  does  not  entitle  the  ven- 
dee to  rescind  the  contract,  or  return  the  goods.  Kase  v.  Johns,  10  Watts, 
109  ;  Voorhees  v.  Earl,  2  Hill,  228  ;  Gary  v.  Gruman,  4  Hill,  626 ;  Thorn- 
ton V.  Wynn,  12  Wheaton,  183 ;  Street  v.  Blay,  2  B,  &  Ad.  456. 

In  Maryland,  however,  a  breach  of  warranty  without  fraud  is  held  to 
justify  the  return  of  the  goods.  Hyatt  v.  Boyle,  5  Gill  &  Johnson,  121; 
Franklin  v.  Long,  7  id.  407.  And  in  the  recent  case  of  Clark  v.  Baker,  5 
Metcalf,  452,  the  question  was  treated  as  still  open  in  Massachusetts ;  but 
the  court  avoided  the  point,  and  rested  their  decision  on  the  ground,  that  if 
the  right  did  exist,  the  vendee  had  not  done  what  was  necessary  to  enable 
him  to  enforce  it.  It  should  be  remembered,  that  in  many  instances  when 
the  default  of  the  vendor  is  treated  as  a  mere  breach  of  warranty,  it  really 
goes  further,  and  affects  the  substance  of  the  contract ;  and  when  this  is  the 
case,  the  vendee  is  no  doubt  entitled  to  return  the  goods,  on  the  ground  of 
their  failure  to  satisfy  the  stipulations  of  the  agreement,  into  which  he  has 
entered. 

It  is  also  thoroughly  well  settled,  that  when  there  have  been  fraudulent 
acts  or  representations  on  the  part  of  the  vendor,  the  vendee  is  entitled  to 
avoid  the  sale  ab  initio,  and  may  either  rely  on  the  fraud  as  a  defence  to 
suit  for  the  purchase-money,  or  make  it  the  ground  of  an  action  on  the  case, 
in  which  he  may  recover  back  the  price  of  the  goods  if  paid,  and  compensa- 
tion for  any  special  injury,  which  has  resulted  from  the  deceit.  Voorhees  v. 
Earl,  2  Hill,  288 ;  Kase  v.  John,  10  Watts,  109  ;  Burton  v.  Stewart,  3 
Wend.  238  ;  Hazard  v.  Irwin,  18  Pick.  99 ;  Thayer  v.  Turner,  8  Metcalf, 
550.  And  it  has  been  held  in  Massachusetts,  that  the  contract  may  be 
avoided  for  the  fraudulent  representations  of  the  vendor,  even  when  under 
seal;  Hazard  v.  Irwin,  18  Pick.  102  ;  but  this  decision  seems  to  be  a  depar- 
ture from  the  common  law,  which  refused  to  allow  a  sealed  instrument  to  be 
invalidated  for  fraud,  relating  merely  to  the  consideration,  and  not  imme- 
diately affecting  its  execution.     Infra. 

However  this  may  be,  it  is  well  settled,  that  contracts  vitiated  by  fraud, 
are  regarded  by  the  law  as  voidable  and  not  void.  For  as  the  end  in  view  is 
the  protection  of  the  injured  party,  it  is  best  attained  by  giving  him  an  elec- 
tion to  annul  or  enforce  the  sale,  as  the  peculiar  circumstances  of  the  case 
may  require.  He  cannot,  however,  play  fast  and  loose  with  the  vendor, 
even  under  these  circumstances,  and  if  he  elect  to  retain  the  goods,  will  be 
obliged  to  pay  for  them.  But  although  when  the  vendee  has  once  elected 
to  affirm  the  contract,  he  cannot  afterwards  set  it  aside,  it  is  sometimes 
difficult  to  determine  whether  this  election  has  actually  been  made,  There 
can,  however,  be  little  doubt,  that  if  he  keep  and  use  the  goods  after 


238  smith's   leading   cases. 

the  fraud  is  discovered,  he  will  thereby  make  them  his  own,  and  cannot 
subsequently  throw  them  on  the  hands  of  the  vendor,  although  still  entitled 
to  give  the  fraud  in  evidence  as  proof  of  failure  of  consideration,  in  any  suit 
brought  for  the  purchase-money,  or  to  make  it  a  distinct  and  independent 
ground  of  recovery.  Burton  v.  Stewart,  3  Wend.  238  ;  Bcccher  v.  Vroom, 
13  Johns.  302 ;  Com.  v.  Henderson,  5  3Iass.  322  ;  Hazard  v.  Irwin,  18 
Pick.  102-  Borrekins  v.  Bevan,  3  Ilawle,  4-1;  Voorhecs  v.  Earle,  2  Hill, 
288 ;  Harrington  v.  Stratton,  22  Pick.  510. 

The  question  whether  the  right  to  sue  for  the  fraud  by  accepting,  is 
lost  by  accepting  or  retaining  the  goods  after  it  is  discovered,  underwent  a 
repeated  and  thorough  examination  in.  a  recent  case,  in  New  York,  in  which 
it  was  decided  by  the  Supreme  Court  and  Court  of  Appeals,  that  the 
affirmance  of  the  contract  renders  it  binding  as  such,  but  does  not  destroy 
the  right  to  recover  damages  for  the  tort,  as  a  distinct  and  independent 
cause  of  action.  "Whitney  v.  Allaire,  4  Hill,  184  ;  4  Denio,  534;  1  Corn- 
stock,  305.  And  it  is  obviously  just,  that  the  vendee  should  be  able  to 
insist  on  the  performance  of  a  contract,  which  may  be  essential  to  his  inter- 
ests, without  waiving  his  right  to  compensation,  to  the  full  extent  to  which 
he  has  been  led  to  make  a  worse  bargain,  by  the  misrepresentations  of  the 
vendor. 

It  has,  moreover,  been  repeatedly  held,  that  an  entire  contract  of  sale, 
cannot  be  apportioned  by  the  vendee,  even  when  the  defect  extends  only  to 
some  of  the  goods  ;  and  that,  if  affirmed  as  to  part,  it  will  be  binding  as  to 
the  whole,  notwithstanding  an  offer  to  return  the  rest;  Vorhees  v.  Earl,  2 
Hill,  288 ;  Kimball  v.  Cunningham,  4  Mass.  504.  And  this  rule  holds 
good,  even  where  the  sale  has  been  made  of  a  certain  number  of  parcels,  and 
at  a  stipulated  price  for  each ;  Voorhees  v.  Earl.  Thus  in  Clark  v.  Baker, 
4  Metcalf,  the  plaintiff  had  purchased  from  the  defendant,  a  large  quantity  of 
white  and  yellow  corn,  at  that  time  on  board  a  vessel  at  the  wharf,  and  paid 
for  it  at  a  certain  rate  per  bushel,  which  differed  with  regard  to  the  two  species 
of  corn.  Before  the  actual  delivery  was  completed,  it  was  discovered,  that 
tlie  quality  of  the  corn  did  not  correspond  with  the  terms  of  the  contract, 
upon  which  the  defendant  refused  to  receive  any  more,  and  brought  his 
action  to  recover  back  the  purchase-money  paid  for  what  had  been  delivered, 
without  offering  to  return  it.  But  it  was  held  by  the  court,  that  the 
mere  circumstance,  that  the  value  of  the  grain  was  estimated  by  the  bushel, 
did  not  entitle  him  to  accept  the  performance  in  part,  and  reject  the  remain- 
der; and  that  as  the  property  in  the  whole  of  the  corn,  had  passed  under 
the  contract,  the  right  to  rescind  was  lost,  by  his  omission  to  return  that 
portion  which  came  to  his  hands. 

But  the  question  in  such  cases,  as  in  all  others  of  the  construction  of  con- 
tracts, is  one  of  intention  ;  and  the  general  rule  merely  proceeds  upon  a  pre- 
sumption, which  may  be  rebutted  by  particular  circumstances.  Thus,  where 
articles  differing  in  nature,  were  sold  at  auction  in  different  parcels,  it  was 
held  that  the  contract  of  sale  was  not  entire,  and  that  the  purchaser  might 
accept  some  of  the  parcels,  without  waiving  his  right  to  reject  the  rest,  as 
not  ageeeing  with  the  sample  exhibited,  at  the  time  of  the  purchase.  Bar- 
clay V.  Tracy,  5  Watts  &  Sergeant,  45. 

A  question  of  more  difficulty  arises,  where  the  contract  is  so  far  unper- 
formed as  to  entitle  the  vendee  to  return  the  goods,   and  when,  instead  of 


CHANDELOR    V.    LOPUS.  239 

adopting  that   course,  lie  converts  them  -wholly  or  in  part  to  his  own  use. 
Under  these  circumstances,  it  would  seem  more  logical  to  regard  the  accep- 
tance of  the  property,  as  evidence  of  anew  implied  contract  to  pay  what  it  is 
worth.     "Wills  V.  Hopkins,  5  M.  &  W.  7.     But  it  may  also  be  regarded  as  a 
waiver  of  a  further  and  more  complete  performance,  or  as  an  assent  to  receive 
what  has  actually  beeu  sent,  instead  of  what  was  stipulated  for  in   the  first 
instance.     The  former  view  is  sustained  by  the  case  of  Hart  v.  Mills,  15  M. 
&  W.  85,  where  the  plaintiff,  who  had  exceeded  the  terms  of  the  contract,  by 
sending  four  dozen  of  wine  instead  of  two,  was  not  allowed  to  recover  for 
more  than  one  dozen,  which  the  defendant  had  actually  kept  j  the  act  of  the 
latter  in  receiving  and  using  part  of  the  wine,  being  held  to  prove  nothing 
more  than  the  existence  of  an  implied  contract  to  pay  as  much  as  it  was 
worth.     In  like  manner  it  was  said,  in  Mondel  v.  Steele,  8  M.  &  W.  858, 
871,  that  where  there  is  an  executory  contract  for  the  delivery  of  goods  made 
in  a  particular  manner,  or  corresponding  to  a  sample,  which  may  be  refused 
or  returned  in  a  reasonable  time,  if  not  such  as  bargained  for,  the  accep- 
tance or  non-rcturn,    affords   evidence    of  a    new  contract  on  a  quantum 
valebant.     And  it  is  obvious,  that  if  the  acceptance  of  goods  which  do  not 
correspond  with  the  terms  of  a  contract,  be  regarded  as  proving  a  waiver  of 
the  default,  or  an  assent  to  a  substituted  performance,  it  must  deprive  the 
vendee  of  all  remedy  by   set-off  or  action,  a  result  inconsistent  with  the 
general  course  of  decision,  unless  under  peculiar  circumstances.     It  seems, 
however,  to  have  been  supposed  in  Barclay  v.  Tracy,  that  when  goods  differ 
materially  from  the  sample  under  which  they  have  been   sold,  the  vendee 
will  be  rendered  liable  for  the  whole  by  keeping  part ;  and  a  similar  view 
was  taken  in  Clark  v.  Baker,  although  the  point  was  not  actually  decided 
on  either  occasion. 

The  right  of  the  vendee  to  give  in  evidence,  as  a  defence  to  an  action  for 
the  purchase  money,  either  the  breach  of  a  mere  warranty,  or  a  failure  to 
comply  with  the  terms  of  an  executory  contract,  may  now  be  regarded  as 
established  in  England,  and  in  most  of  the  courts  of  this  country.  In  both 
cases,  however,  it  is  subject  to  some  restrictions ;  and  there  is  a  difficulty  in 
the  former,  in  reconciling  it  with  the  established  principles  of  pleading,  which 
does  not  exist  in  the  latter.  The  question  was  examined,  and  the  distinc- 
tions between  the  two  species  of  contracts,  ably  considered  by  the  Court  of 
Exchequer  in  the  recent  case  of  Mondel  v.  Steele,  8  M.  &  W.  858.  The 
plaintitr  there  brought  suit,  on  a  contract  for  building  a  ship  according  to  a 
certain  specification,  and  averred  a  breach  by  a  failure  to  comply  with  its 
terms,  but  confined  his  demand  to  the  damages  arising  on  a  voyage  subse- 
quent to  the  delivery,  from  the  delay  and  expenditures  for  repairs,  rendered 
necessary  by  the  unfitness  of  the  vessel,  to  encounter  the  perils  of  the  navi- 
gation. The  defendant  pleaded,  that  before  action  brought,  he  had  sued  the 
plaintiff  in  indebitatus  assumpsit  for  the  price  of  the  ship,  and  that  the  fiiilure 
to  comply  with  the  contract,  having  been  given  in  evidence  by  the  latter,  the 
jury,  under  the  charge  of  the  court,  had  reduced  the  recovery  against  him, 
by  the  amount  of  compensation  and  damages,  to  which  he  was  entitled  for 
such  failure.  Under  these  circumstances,  it  was  held  upon  a  demurrer  to 
this  plea,  that  in  the  case  of  an  executory  contract  for  the  delivery  of  chat- 
tels, answering  a  particular  description,  as  in  the  instance  of  a  sale  by  sam- 
ple, or  an  agreement  to  manufacture  goods  in  a  specified  manner,  there  can 
be  no  recovery  on  the  contract  itself,  unless  it  is  performed  by  delivering 


240  smith's  leading  cases. 

that  which  the  vendor  has  agreed  to  furnish.  This  rule  was  said  to  hold 
good,  even  where  the  vendee  accepts  and  retains  the  property  actually  deli- 
vered, although  in  that  case,  the  law  will  imply  a  new  contract,  and  regard 
the  old  one  merely  as  furnishing  a  standard  of  value,  fixed  by  the  agree- 
ment of  the  parties.  And  it  was  held  to  follow  from  this  reasoning,  that  as 
the  contract  in  suit  was  executory,  and  had  not  been  fulfilled,  it  was  not 
strictly  before  the  court  in  the  former  action,  in  which  the  only  question 
was  as  to  the  value  of  the  vessel  actually  delivered  to  the  vendee,  and  not 
as  to  the  amount  of  damages  which  he  had  sustained,  by  the  failure  of  the 
defendant,  to  deliver  a  vessel  corresponding  with  the  stipulations  into  which 
he  had  entered,  except  in  so  far  as  the  latter  question  was  identical  with  the 
former.  It  was  consequently  decided,  that  the  matter  set  forth  in  the  plea, 
was  not  an  estoppel  on  the  right  to  recover  for  the  loss  sustained  in  making 
the  repairs,  which  the  faulty  construction  of  the  vessel  had  rendered  neces- 
sary :  and  the  rule  of  law  was  held  to  be,  that  when  goods  are  sold  and  deli- 
vered with  a  warranty,  or  work  and  labour  are  done,  or  goods  furnished 
according  to  a  contract,  the  defendant  cannot  set-off  the  amount  of  damages 
which  he  has  sustained  by  a  breach  of  the  contract,  in  answer  to  an  action 
for  the  price,  but  is  confined  to  showing  how  much  less  the  goods  or  work 
are  worth  by  reason  of  the  breach  of  contract ;  and  that  a  defence,  based 
on  this  ground  in  one  action,  is  no  bar  to  a  recovery  in  another  for  any  sub- 
sequent and  consequential  injury,  resulting  from  the  failure  in  the  per- 
formance of  the  contract. 

So  far  as  this  decision  is  law  in  this  country,  it  restricts  the  right  to  rely 
on  the  defective  quality  of  the  goods,  furnished  under  a  contract  of  sale, 
whether  executory  or  executed,  to  the  resulting  diminutions  of  marketable 
value.  But,  even  if  the  general  principle  thus  asserted  be  correct,  it  may 
be  doubted  whether  it  was  correctly  applied.  The  distinction  taken  by  the 
court,  was  between  actual  deficiency  in  value,  and  mere  consequential  injury, 
and  the  necessity  for  repairing  the  vessel  at  an  earlier  period  than  would  have 
been  necessary,  if  she  had  been  properly  constructed,  which  constituted  the 
gravamen  of  the  declaration,  was  held  to  fall  under  the  latter  category,  and  not 
under  the  former.  But  the  inability  of  a  vessel,  built  in  an  inferior  manner, 
to  go  to  sea  without  meeting  with  injuries,  and  requiring  repairs,  is  precisely  one 
of  the  things  which  make  her  less  valuable,  than  if  more  care  had  been  em- 
ployed in  her  construction,  and  the  contingency  of  loss  from  this  cause,  should, 
therefore,  be  taken  into  account  by  the  jury,  when  an  action  brought  by  the 
builder,  is  resisted  on  the  ground  of  the  non-fulfilment  of  his  contract.  It 
is,  therefore,  difficult  to  see  how  that  which  is  the  necessary  result  of  a  faulty 
mode  of  construction,  and  which  necessarily  enters  into  any  defence  founded 
upon  it,  can  be  subsequently  brought  forward  as  an  independent  cause  of 
action.  This,  it  would  seem,  can  only  arise,  where  a  subsequent  injury  is 
sustained,  which,  although  occasioned  by  the  breach  of  the  contract,  is  not 
one  of  its  necessary  or  probable  consequences.  Thus,  it  is  obvious,  that  the 
injury  occasioned  by  the  breaking  of  the  rope  in  Brown  v.  Edgington,  (su- 
pra), could  not  have  been  taken  into  consideration,  in  any  suit  brought 
against  the  vendee  for  its  price,  and  consequently  that  the  judgment  in  such 
a  suit,  would  not  have  been  a  bar  to  a  subsequent  action  for  the  damages 
sustained  by  the  loss  of  the  wine. 

The  principles  asserted  in  Mondel  v.  Steele,  as  supporting  the  right  of  a 


OnANDELOK     V.     L  0  P  U  S.  241 

purchaser,  under  an  executory  contract,  whicli  has  not  been  fulfilled, 
to  set  up  the  consequent  deficiency  in  value,  as  a  defence  to  an  action  by 
the  vendor,  apply  fully  in  the  case  of  an  executed  contract,  which  has  been 
rendered  inoperative,  by  the  fraud  of  the  party  who  seeks  to  enforce  it.  It 
was,  however,  admitted  by  the  court,  that  these  principles  are  of  more  dif- 
ficult application,  in  the  case  of  a  mere  breach  of  warranty.  That  is  regarded 
by  the  law  as  an  executory  undertaking,  the  performance  of  which  is  not  a 
condition  precedent,  and  need  not  be  proved  or  averred  even  in  a  declaration  in 
special  assumpsit,  upon  the  contract  itself.  Nor  does  it  enter  into  the  essence 
of  the  undertaking,  or  attach  itself  to  the  nature  of  that  which  the  vendor 
has  stipulated  to  sell,  and  thus  the  breach  does  not  give  the  purchaser,  a 
right  to  treat  the  contract  as  unperformed  and  return  the  goods.  It  follows 
that  whether  he  is  sued  in  general  or  special  assumpsit,  his  liability  accrues 
under  the  original  contract :  in  the  latter  case,  on  the  ground  that  the  under- 
taking of  the  plaintiff  has  been  performed  as  far  as  is  necessary  to  give  a 
right  of  suit,  in  the  former  on  the  well  recognised  principle,  that  indebitatus 
assumpsit  may  be  maintained  on  a  specific  contract,  which  has  been  so  far 
fulfilled,  that,  if  specially  declared  on,  it  would  show  a  right  to  the  receipt 
of  money.  The  breach  of  the  warranty,  ought,  therefore,  under  these  cir- 
cumstances, to  come  under  the  rule  which  governs  the  construction  of  other 
independent  stipulations,  and  not  be  admissible  in  evidence,  for  the  purpose 
either  of  diminishing  or  defeating  a  recovery. 

It  was  accordingly  well  settled  at  common  law,  that  a  breach  of  warranty 
gave  a  right  to  bring  a  cross  action,  but  could  not  constitute  a  defence, 
either  by  way  of  set-oflF,  or  in  mitigation  of  damages  to  a  suit  brought  on 
the  original  contract.  The  rule  was  the  same,  even  where  the  action  was 
laid  in  indebitatus  assumpsit,  for  there  the  implied  promise,  follows  the  lia- 
bility imposed  by  the  express  promise,  on  which  it  is  based.  This  rule  was 
adopted  in  Thornton  v.  Wynn,  12  Wheaton,  183,  and  said  to  apply  in  every 
case  of  a  partial  failure  of  consideration,  whether  arising  out  of  fraud  or 
warranty,  although  necessarily  inapplicable,  when  an  executed  contract  has 
been  avoided  by  the  return  of  the  property  sold,  or  when  an  executory  con- 
tract has  not  been  fulfilled.  The  same  doctrine  was  held  in  Palsifer  v. 
Hotchkiss,  12  Conn.  ;  Bain  v.  Wilson,  1  J.  J.  Wilson,  282.  But  the 
course  of  decision  at  the  present  day,  in  this  country  and  in  England,  tends 
in  the  opposite  direction,  towards  the  position  taken  in  Mondel  v.  Steel,  that 
a  partial  failure  of  consideration  may  be  given  in  evidence  in  mitigation  of 
damages,  even  when  the  original  contract  remains  in  full  force,  and  the  suit 
is  expressly  or  impliedly  founded  upon  it.  Parson  v.  Sexton,  4  C.  B.  899  ; 
Beecker  v.  Vrooman,  13  Johnson,  302 ;  Spalding  v.  Vandercock,  2  Wend. 
431;  Barton  v.  Stewart,  3  Id.  236;  McAllister  v.  Reab,  4  Id.  483;  8  Id. 
109  ;  Harrington  v.  Stratton,  22  Pick.  510 ;  Miller  v.  Smith,  1  Mason, 
437  ;  Peden  v.  31oore,  1  Stewart  &  Porter,  71;  and  in  the  recent  case  of 
Withers  v.  Greene,  9  Howard,  203,  the  Supreme  Court  of  the  United  States 
receded  from  the  ground  taken  in  Thornton  v.  Wynn,  and  held  that  a  par- 
tial failure  of  consideration,  growing  out  of  fraud  or  breach  of  warranty, 
may  be  set  up  as  a  defence,  to  a  note  given  for  the  price  of  the  chattel  war- 
ranted. It  must,  however,  be  remembered,  that  the  defence  in  such  cases, 
rests  solely  on  the  equitable  ground  of  reducing  the  right  given  by  the 
contract,  in  the  ratio  of  the  failure  of  the   consideration  on  which    it    is 

Vol.  I.— 16 


242  smith's    leading    cases. 

founded,  and  not  on  tliat  of  a  teclinical  sot-off.  A  set-off,  in  the  technical 
sense  of  the  term,  can  only  arise  where  the  demand  of  the  plaintiff,  and  the 
countcrdemand  of  the  plaintiff,  are  certain,  or  susceptible  of  being  reduced 
to  certainty  by  calculation.  Wilmot  v.  Ilurd,  11  Wend.  585.  There  can 
consequently,  be  no  set-off,  when  the  cause  of  action,  or  the  defence  is 
founded  on  a  breach  of  warranty,  and  consists  in  a  claim  for  unliquidated 
damages.  Hence,  the  defalcation  from  the  plaintiff's  demand  must  stop 
short,  as  in  Mondel  v.  Steel,  with  the  failure  of  the  consideration,  and  can- 
not extend  to  the  consequential  damages  sustained  by  the  defendant.  But 
this  rule  is  not  applicable  in  Pennsylvania,  where  the  jury  are  authorised  to 
take  iuto  view  every  injury,  which  may  have  been  occasioned  by  .any  breach 
of  contract  on  the  part  of  the  plaintiff,  and  even  to  mulct  him  in  any  amount 
necessary  to  compensate  the  defendant. 

The  doctrine  that  a  contract  entire  in  itself,  cannot  be  apportioned  on  the 
ground  of  a  failure  of  consideration,  is  still  applied  in  England,  where  the 
question  arises  on  a  bill  or  note  given  for  the  purchase  money,  although  it  is 
no  longer  held  applicable  in  suits  brought  dir-ectly  on  the  contract  itself, 
Obbard  v.  Betham,  Moody  &  M.  483;  Jones  v.  Bright,  5  Bing.  ;  33 ; 
Trickey  v.  Lame,  6  M.  &  W.  278.  The  law  is  the  same  in  some  parts  of 
this  country;  Scudder  v.  Andrews,  2  McLean,  464 ;  Washburn  v.  Picott,  3 
Devereux,  396 ;  Wise  v.  Keeley,  2  A.  R.  Marshall,  545.  But  many  of 
the  states  have  adopted  the  more  liberal  rule,  that  where  the  contract  has 
not  been  fully  performed  on  one  side,  it  shall  not  be  enforced  on  the  other 
beyond  the  limits  of  justice;  and  this  whether  the  suit  is  brought  on  the 
contract  itself,  or  on  a  negotiable  security,  of  which  it  forms  the  considera- 
tion; Spalding  v.  Vandercock,  2  Wend.  431;  M'Alister  v.  Reab,  4  Id. 
489  ;  Judd  v.  Dennison,  10  Id.  512;  Payne  v.  Cutter,  13  Id.  605;  Har- 
rington v.  Stratton,  22  Pick.  511;  Goodwin  v.  Morse,  9  Metcalf,  278; 
Parkettv.  Gi'egory,  2  Seammon.  44.  And  in  the  recent  case  of  Withers  v. 
Greene,  9  Howard,  226,  the  Supreme  Court  of  the  United  States  were 
obviously  disposed  to  adopt  this  view  of  the  question,  although  they  rested 
their  decision  more  especially  on  the  local  law  of  Alabama;  and  there  can 
be  little  doubt  that  it  will  ultimately  prevail  throughout  this  country,  and 
perhaps,  even  in  England.     Chitty  on  Bills,  89,  note. 

It  is  proper  to  observe,  that  where  the  contract  of  sale  is  vitiated  by  wil- 
ful misrepresentation  or  fraud,  and  has  been  actually  avoided,  no  recovery 
can  be  had  on  a  note  given  for  the  purchase  money.  Sill  v.  Road,  15  John- 
son, 230.  Lewis  v.  Cosgrave,  2  Taunton  2.  Where,  however,  the  contract 
has  not  been  actually  avoided,  a  failure  of  consideration  arising  from  fraud, 
stands  on  the  same  footing  as  if  it  arose  from  a  mere  breach  of  warranty. 
And  it  was  held,  on  this  ground,  in  Palsifer  v.  Hotchkiss,  12  Conn.  234, 
that  a  false  representation  as  to  the  value  of  a  patent  right,  made  to  induce 
the  vendee  to  complete  the  purchase,  could  not  bi  given  in  evidence  in  a 
suit  on  a  note  given  for  the  purchase  money,  unless  it  were  shown,  either 
that  the  patent  was  destitute  of  all  value,  or  that  the  contract  bad  been 
rescinded  by  the  purchaser. 

Failure  of  consideration  could  not  be  given  in  evidence  at  common  law, 
as  a  defence  to  a  suit  on  a  specialty,  for,  as  the  existence  of  a  consideration 
was  immaterial,  proof  of  its  failure  was  necessarily  irrelevant.  Hence,  a 
breach  of  warranty  could  not  be  set  up  in  bar  of  a  recovery,  on  a  bond  given 


CHANDELOR     V.     LOPUS.  243 

for  the  purchase  money  of  the  properly  warranted.  Vrooman  v.  Phelps,  2 
Johnson,  178.  And  the  same  rule  applied,  even  where  the  defence  rested 
on  fraud,  unless  it  attached  directly  to  the  execution  of  the  bond,  instead  of 
consisting  merely  in  a  misrepresentation  of  the  nature  or  value  of  that  for 
which  it  was  given.  Stevens  v.  Judson,  4  Wend.  471.  Fraud  and  failure 
of  consideration  have,  however,  always  been  held  a  sufficient  defence  to  a 
contract  under  seal  in  equity,  and  therefore,  in  Pennsylvania,  where  the 
courts  of  law  administer  justice  on  equitable  principles.  And  it  has  been 
decided  in  Massachusetts,  that  every  contract  induced  by  fraud,  is  voidable 
without  regard  to  its  form,  and  although  the  fraud  may  have  related  solely 
to  the  consideration.  Hazard  v.  Irwin,  18  Pick.  872.  The  strict  common 
law  rule  has  been  abrogated  in  New  York,  by  the  revised  statutes,  and  failure 
of  consideration,  rendered  admissible  in  evidencCj  whether  the  contract  in 
suit  is  a  specialty  or  in  parol. 

It  was  decided  by  the  Supreme  Court  of  New  York,  in  Carey  v.  Gru- 
man,  4  Hill,  62G,  that  in  all  cases  where  the  vendor  becomes  liable  to  the 
vendee,  for  the  defective  quality  of  the  goods  which  he  has  sold,  whether 
bis  liability  arises  through  fraud  or  breach  of  contract,  the  true  measure  of 
damages,  is  the  actual  value  of  goods  corresponding  to  his  representations 
or  agreement;  and  it  was  held,  that  the  amount  of  the  purchase-money, 
although  strong,  is  not  conclusive  evidence  of  such  value.  This  rule  for 
the  estimation  of  damages,  was  also  recognized  in  Borrekins  v.  Bevan,  3 
Rawle,  44.  In  certain  cases,  however,  the  right  of  recovery  may  extend 
beyond  this,  to  consequential  injuries  sustained  by  the  plaintiff  in  con- 
sequence of  the  breach  of  the  contract. 

It  need  hardly  be  said,  that  a  declaration  on  a  warranty,  as  well  as  on 
every  other  contract,  must  strictly  pursue  its  legal  intent.  Thus  in  the  case 
of  Hills  V.  Bannister,  8  Cowen,  31,  where  the  defendant  had  warranted, 
that  a  bell  cast  by  him  would  not  crack  within  a  year,  and  if  it  did,  that 
he  would  recast  it,  the  court  decided  that  he  could  not  be  made  liable, 
without  an  averment  of  notice  of  the  defect,  and  a  request  to  recast.  At 
the  same  time,  it  was  held,  that  the  defect  might  be  given  in  evidence  under 
the  general  issue,  on  notice,  as  failure  of  consideration  and  in  mitigation  of 
damages. 

In  like  manner,  if  the  action  be  in  tort,  the  declaration  must  set  forth 
the  averments,  substantially  necessary  to  sustain  the  action ;  and  if  it  does 
not,  the  plaintiff  cannot  be  allowed  to  establish  them  at  trial  by  proof.  The 
scienter  must  be  averred ;  and  if  not  averred,  cannot  be  proved.  The  execu- 
tors of  Evertson  v.  Miles,  6  Johns.  138;  Stone  v.  Denny,  4  Metcalf,  154; 
Conner  v.  Henderson,  15  Mass.  320;  Reed  v.  Ward,  9  Vermont,  288; 
Smith  V.  Miller,  2  Bibb,  616. 

It  would  appear,  notwithstanding,  that  as  an  averment  that  the  representa- 
tions of  the  vendor  were  made  fraudulently,  and  with  an  intent  to  deceive, 
is  sufficient  in  a  plea  in  bar,  it  must  also  be  sufficient  in  a  declaration, 
although  without  a  direct  allegation,  that  their  falsehood  was  known  at  the 
time  when  they  were  made.  Allen  v.  Addington,  7  Wend.  ] ;  11  Id.  399. 
But  in  whatever  mode  the  fraud  practised  by  the  defendant,  is  alleged, 
care  must  be  taken  to  show  that  it  has  been  productive  of  actual  injury 
to  the  plaintiff,  by  inducing  him  to  enter  into  the  purchase,  or  take  some 
other  step,  which  would  otherwise  have   been   avoided.      The  anomalous 


244  smith's   leading  cases. 

mode  of  declaring  in  tort  on  a  mere  breach  of  warranty,  which  was  sanc- 
tioned in  Williamson  v.  AUanson,  (supra)  is,  of  course,  not  within  the  scope 
of  these  remarks,  for  there  the  action  is  so  far  founded  in  contract,  that  the 
judgment  will  be  a  bar  to  a  new  suit  in  assumpsit  on  the  warranty,  though  not 
to  one  laid  in  tort  for  actual  fraud.  The  Salem  India  Rubber  Co.  v.  Adams, 
23  Pick.  256. 


[*82] 


*COGGS    V.    BERNARD. 


TRINITY.— 2  ANN.E.Ca) 

[REPORTED  LORD  RAYMOND,  909. |] 

If  a  man  undertakes  to  carry  goods(i)  safely  and  securely,  ho  is  responsible  for 
any  damage  they  may  sustain  in  the  carriage  through  his  neglect,  though  he  was 
not  a  common  carrier,  and  was  to  have  nothing  for  the  carriage. 

In  an  action  upon  the  case,  the  plaintiff  declared,  quod  cum  Bernard  the 
defendant,  the  10th  of  Novemher,  13  Will.  3,  &c.  assumpsisset,  salvo  et 
secure  elevare,  Anglice  to  take  up  several  hogsheads  of  brandy  then  in  a 
certain  cellar  in  D.  et  salvo  et  secure  deponere,  Anglice  to  lay  them  down 
ascain  in  a  certain  other  cellar  in  Water-lane:  the  said  defendant  and  his 
servants  and  agents,  tarn  negligenter  et  improvide,  put  them  down  again  into 
the  said  other  cellar,  quod  per  defectum  curcc  ipsius  the  defendant,  his  ser- 
vants and  agents,  one  of  the  casks  was  staved,  and  a  great  quantity  of 
brandy,  viz.,  so  many  gallons  of  brandy,  was  spilt.  After  not  guilty 
pleaded,  and  a  verdict  for  the  plaintiflf,  there  was  a  motion  in  arrest  of 
judgment,  for  that  it  was  not  alleged  in  the  declaration  that  the  defendant 
was  a  common  porter,  nor  averred  that  he  had  anything  for  his  pains.  And 
the  case  being  thought  to  be  a  case  of  great  consequence,  it  was  this  day 
argued  seriatim  by  the  whole  court. 

Gordd,  J.  I  think  this  a  good  declaration.  The  objection  that  has  been 
made  is,  because  there  is  not  any  consideration  laid.  But  I  think  it  is  good 
either  way ;  and  that  any  man  that  undertakes  to  carry  goods,  is  liable  to 
an  action,  be  he  a  common  carrier,  or  whatever  he  is,  if  through  his  neglect 
they  are  lost,  or  come  to  any  damage ;  and  if  a  i^rsemiiiin  be  laid  to  be 
r-ifioo  -|  given,  then  it  is  without  question  so.  The  reason  of  the  action  is, 
L  ^  the  particular  *trust  reposed  in  the  defendant,  to  which  he  has  con- 
curred by  his  assumption,  and  in  the  executing  which,  he  has  miscarried  by 

(a)  S.C.  Com.  1.33.  Salk.  26.  3  Salk.  11.  Holt,  13.  Entry,  Salk.  735.  Raym.  vol. 
3,  p.  240. 

t  [There  is  a  report  of  this  case,  tot.  verb.,  in  the  Hargrave  MSS.,  No.  66,  and  182, 
therein  said  "to  be  transcribed  from  the  MS.  Reports  of  Herbert  Jacob,  Esq.,  of  the  Inner 
Temple,  written  with  his  own  hand."]  (6)  Vide  Jones  on  Bailments,  60. 


COGQS    V.    BERNARD.  245 

his  neglect.  But  if  a  man  undertakes  to  buil(i  a  house,  without  any  thing 
to  be  had  for  his  pains,  an  action  will  not  lie  for  non-performance,  because 
it  is  nudH7ii  pactum.  So  is  the  3  Hen.  6,  36.  So  if  goods  are  deposited 
with  a  friend,  and  are  stolen  from  him,  no  action  will  lie.  29  Ass.  28.  But 
there  will  be  a  difference  in  that  case  upon  the  evidence,  how  the  matter 
appears :  if  they  were  stolen  by  reason  of  a  gross  neglect  in  the  bailee,  the 
trust  will  not  save  him  from  an  action  j  otherwise,  if  there  be  no  gross 
neglect.  So  is  Doct.  et  Stud.  129,  upon  that  difference.  The  same  differ- 
ence is,  where  he  comes  to  goods  by  finding.  Doct.  et  Stud,  tihi  sitpra. 
Ow.  141.  But  if  a  man  takes  upon  him  expressly  to  do  such  a  fact  safely 
and  securely,  if  the  thing  comes  to  any  damage  by  his  miscarriage,  an 
action  will  lie  against  him.  If  it  be  only  a  general  bailment,  the  bailee  will 
not  be  chargeable,  without  a  gross  neglect.  So  is  Keilw.  160.  2  Hen.  7. 
11.  22  Ass.  41.  1  R.  10.  Bro.  Action  sur  le  case,  78.  Southcoto's  case  is 
a  hard  case  indeed,  to  oblige  all  men  that  take  goods  to  keep,  to  a  special 
acceptance,  that  they  will  keep  them  as  safe  as  they  would  do  their  own, 
which  is  a  thing  no  man  living  that  is  not  a  lawyer  could  think  of;  and 
indeed  it  appears  by  the  report  of  that  case  in  Cro.  Eliz.  815,  that  it  was 
adjudged  by  two  judges  only,  viz.  Gawdy  and  Clench.  But  in  1  Vent.  121, 
there  is  a  breach  assigned  upon  a  bond  conditioned  to  give  a  true  account, 
that  the  defendant  had  not  accounted  for  30/.  j  the  defendent  showed  that 
he  locked  the  money  up  in  his  master's  warehouse,  and  it  was  stolen  from 
thence,  and  that  was  held  to  be  a  good  account.  But  when  a  man  under- 
takes specially  to  do  such  a  thing,  it  is  not  hard  to  charge  hira  for  his  neglect, 
because  he  has  the  goods  committed  to  his  custody  upon  those  terms. 

Poict/s.,  J.,  agreed  upon  the  neglect. 

Poxcell,  J.  The  doubt  is,  because  it  is  not  mentioned  in  the  declaration 
that  the  defendant  had  any  thing  for  his  pains,  nor  that  he  was  a  common 
porter,  which  of  itself  imports  a  hire  and  that  he  is  to  be  paid  for  his  pains. 
So  that  the  question  is,  whether  an  action  will  lie  against  a  man  for  doing 
the  office  of  a  friend,  when  there  is  not  any  particular  *neglect  ^^ .  -. 
shown?  And  I  hold,  an  action  will  lie,  as  this  case  is.  And  in  L 
order  to  make  it  out,  I  shall  first  show  that  there  are  great  authorities  for 
me,  and  none  against  me ;  and  then  secondly,  I  shall  show  the  reason  and 
giiit  of  this  action  :  and  then,  thirdly,  I  shall  consider  Southcoto's  case. 

1.  Those  authorities  in  the  Register,  110,  a.  b.  of  the  pipe  of  wine,  and 
the  cure  of  the  horse,  are  in  point;  and  there  can  be  no  answer  given  them, 
but  that  they  are  writs  which  are  framed  short.  But  a  writ  upon  the  case 
must  mention  every  thing  that  is  material  in  the  case;  and  nothing  is  to  be 
added  to  it  in  the  count,  but  the  time  and  such  other  circumstances.  But 
even  that  objection  is  answered  by  Rast.  Entr.  13,  c.  where  there  is  a 
declaration  so  general.  The  year-books  are  full  in  this  point.  43  Edw.  8, 
33,  a.  there  is  no  particular  act  showed :  there  indeed  the  weight  is  laid 
more  upon  the  neglect  than  the  contract.  But  in  48  Edw.  3,  6,  and  19 
Hen.  6,  49,  there  the  action  is  held  to  lie  upon  the  undertaking,  and  that 
without  that  it  would  not  lie;  and  therefore  the  undertaking  is  held  to  be 
the  matter  traversable,  and  a  writ  is  quashed  for  want  of  laying  a  place  of 
the  undertaking.  2  Hen.  7,  11.  7  Hen.  4,  14,  these  cases  are  all  in  point, 
and  the  action  adjudged  to  lie  upon  the  undertaking. 

2.  Now  to  give  the  reason  of  tliesc  cases,  the  gist  of  these  actions  is  the 


246  smith's   leading   cases. 

undertaking.  The  party's  fecial  assumpsit  and  undertaking  obliges  him  so 
to  do  the  thing,  that  the  bailor  come  to  no  damage  by  his  neglect.  And 
the  bailee  in  this  case  shall  answer  accidents,  as  if  the  goods  are  stolen ;  but 
not  such  accidents  and  casualties  as  happen  by  the  act  of  God,  as  fire, 
tempest,  &c.  So  it  is  1  Jones,  179.  Palm.  548;  for  the  bailee  is  not  bound 
upon  any  undertaking  against  the  act  of  Grod.  Justice  Jones,  in  that  case, 
puts  the  case  of  the  22  Ass.j  where  the  ferryman  overladcd  the  boat. 
That  is  no  authority,  I  confess,  in  that  case ;  for  the  action  there  is  founded 
upon  the  ferryman's  act,  viz.  the  overlading  the  boat.  But  it  would  not 
have  lain,  says  he,  without  that  act;  because  the  ferryman,  notwithstanding 
his  undertaking,  was  not  bound  to  answer  for  storms.  But  that  act  would 
charge  him  without  any  undertaking,  because  it  was  his  own  wrong  to  over- 
lade  the  boat.  But  bailees  are  chargeable  in  case  of  other  accidents,  because 
^Qr -|  they  have  a  remedy  against  the  wrong-doers:  as  iu  case  the  goods 
L  -^  are  stolen  from  him,  an  appeal  of  robbery  *will  lie,  wherein  he  may 
recover  the  goods,  which  canijot  be  had  against  enemies,  in  case  they  are 
plundered  by  them ;  and  therefore  in  that  case  he  shall  not  be  answerable. 
But  it  is  objected,  that  here  is  no  consideration  to  ground  the  action  upon. 
But  as  to  this,  the  difference  is,  between  being  obliged  to  do  the  thing,  and 
answering  for  things  which  he  had  taken  into  his  custody  upon  such  an 
undertaking.  An  action  indeed  will  not  lie  for  not  doing  the  thing,  for  want 
of  a  sufficient  consideration  :  but  yet  if  the  bailee  will  take  the  goods  into 
his  custody,  he  shall  be  answerable  for  them ;  for  the  taking  the  goods  into 
hjs  custody  is  his  own  act.  And  this  action  is  founded  upon  the  warranty, 
upon  which  I  have  been  contented  to  trust  you  with  the  goods,  which  without 
such  a  warranty  I  would  not  have  done.  And  a  man  may  warrant  a  thing 
without  any  consideration.  And  therefore  when  I  have  reposed  a  trust  in 
you  upon  your  undertaking,  if  I  suffer,  when  I  have  so  relied  upon  you,  I 
shall  have  ray  action.  Like  the  case  of  the  Countess  of  Salop.  An  action 
will  not  lie  against  a  tenant  at  will  generally,  if  the  house  be  burnt  down. 
But  if  the  action  had  been  founded  upon  a  special  undertaking,  as  that  in 
consideration  the  lessor  would  let  him  live  in  the  house  he  promised  to 
deliver  up  the  house  to  him  again  in  as  good  repair  as  it  was  then,  the 
action (c)  would  have  lain  upon  that  special  undertaking.  But  there  the 
action  was  laid  generally. 

8.  Southcote's((/)  case  is  a  strong  authority;  and  the  reason  of  it  comes 
home  to  this,  because  the  general  bailment  is  there  taken  to  be  an  under- 
taking to  deliver  the  goods  at  all  events,  and  so  the  judgment  is  founded 
upon  the  undertaking.  But  I  cannot  think  that  a  general  bailment  is  an 
undertaking  to  keep  the  goods  safely  at  all  events  :  that  is  hard.  Coke 
reports  the  case  upon  that  reason;  but  makes  a  difference,  where  a  man 
undertakes  a  case  specially,  to  keep  goods  as  he  will  keep  his  own.  Let 
us  consider  the  reason  of  the  case  :  for  nothing  is  law  that  is  not  reason. 
Upon  consideration  of  the  authorities  there  cited,  I  find  no  such  difference. 
In  9  Edw.  4,  40,  b.  there  is  such  an  opinion  by  Danby.  The  case  in  3 
Hen.  7,  4,  was  of  a  special  bailment,  so  that  the  case  cannot  go  very  far  in 

(c)  Vide  Com.  C27.      Burr.  1638. 

{(1)  The  notion  in  Soiithcotc's  case,  4  Rep.  83,  b.  lliat  a  general  bailment,  and  a  bail- 
ment to  be  safely  kept  is  all  one,  was  denied  to  be  law  by  the  whole  court  ex  relatione 
m'ri  Bunbury.     Note  to  3d.  Ed. 


COGGS     V.     BERNARD.  247 

the  matter.  6  Hen.  7,  12,  there  is  such  an  opinion  by  the  by.  And  this 
is  all  the  foundation  of  Southcote's  case.  But  there  are  cases  there  cited, 
which  are  stronger  *against  it,  as  10  Hen.  7,  26,  29  Ass.  28,  the  ^^^  , 
case  of  a  pawn.  My  lord  Coke  would  distinguish  that  case  of  a  pawn  >-  J 
from  a  bailment,  because  the  pawnee  has  a  special  property  in  the  pawn ;  but 
that  will  make  no  difference,  because  he  has  a  special  property  in  the  thing 
bailed  to  him  to  keep,  8  Edw.  2,  Fitzh.  Detinue,  59,  the  case  of  goods  bailed 
to  a  man,  locked  up  in  a  chest,  and  stolen  ;  and  for  the  reason  of  that 
case,  sure  it  would  be  hard  that  a  man  that  takes  goods  into  his  custody  to 
keep  for  a  friend,  purely  out  of  kindness  to  his  friend,  should  be  chargeable 
at  all  events.  But  then  it  is  answered  to  that,  that  the  bailee  might  take 
tbem  specially.  There  arc  many  lawyers  who  do  not  know  that  difference  ; 
or  however  it  may  be  with  them,  half  mankind  never  heard  of  it.  So,  for  these 
reasons,  I  think  a  general  bailment  is  not,  nor  cannot  be  taken  to  be,  a  special 
undertaking  to  keep  the  goods  bailed  safely  against  all  events.  But  if(e)  a 
man  does  undertake  specially  to  keep  goods  safely,  that  is  a  warranty,  and 
will  oblige  the  bailee  to  keep  them  safely  against  perils,  where  he  has  his 
remedy  over,  but  not  against  such  where  he  has  no  remedy  over. 

Holt,  C.  J.  The  case  is  shortly  this.  This  defendant  undertakes  to 
remove  goods  from  one  cellar  to  another,  and  there  lay  them  down  safely ; 
and  he  managed  them  so  negligently,  that  for  want  of  care  him  in  some  of 
the  goods  were  spoiled.  Upon  not  guilty  pleaded,  there  has  been  a  verdict 
for  the  plaintiff,  and  that  upon  full  evidence,  the  cause  being  tried  before 
me  at  Guildhall.  There  has  been  a  motion  in  arrest  of  judgment,  that  the 
declaration  is  insufficient  because  the  defendant  is  neither  laid  to  be  a  com- 
mon porter,  nor  that  he  is  to  have  any  reward  for  his  labour,  so  that  the 
defendant  is  not  chargeable  by  his  trade,  and  a  private  person  cannot  be 
charged  in  action  without  a  reward. 

I  have  had  a  great  consideration  in  this  case ;  and  because  some  of  the  books 
make  the  action  lie  upon  the  reward,  and  some  upon  the  promise,  at  first  I 
made  a  great  question,  whether  this  declaration  was  good.  But  upon  conside- 
ration, as  this  declaration  is,  I  think  the  action  will  well  lie.  In  order  to  show 
the  grounds  upon  which  a  man  shall  be  charged  with  goods  put  into  his  cus- 
tody, I  must  show  the  several  sorts  of  bailments.  And(/)  there  are  six  sorts  of 
bailments.  The  first  sort(y)  of  bailmentis,  abare  naked  bailmentofgoods,deliv- 
ered  by  one  manto  another  to  keep,  for  the  *use  of  the  bailor  ;  and  this  ^,(.07-1 
I  call  a  depositnm,  and  it  is  that  sort  of  bailment  which  is  mentioned  in  L 
Southcote's  case.  The  second  sort  is,  when  goods  or  chattels  that  are  use- 
ful are  lent  to  a  friend  gratis,  to  be  used  by  him ;  that  is  called  commo- 
datum(h)  because  the  thing  is  to  be  restored  in  specie.  The  third  sort  is, 
when  goods  are  left  with  the  bailee  to  be  used  by  him  for  hire ;  this  is 
called  locatio  et  conductio,  and  the  lender  is  called  locator,  and  the  bor- 
rower conchiclor.  The  fourth  sort  is,  when  goods  or  chattels  are  delivered 
to  another  as  a  pawn,  to  be  a  security  to  him  for  money  borrowed  of  him 
by  the  bailor ;  and  this  is  called  in  Latin,  vadium,  and  in  English,  a  pawn 
or  a  pledge.  The  fifth  sort  is  when  goods  or  chattels  are  delivered  to  be  car- 
ried, or  something  is  to  be  done  about  them  for  a  reward  to  be  paid  by  the 

(e)  Vide  Jones,  44.  (/)  Vide  Jones,  35.  {g)  Just.  Inst.  lib.  3,  tit.  l.").  text  3. 

(/i)  Ibid,  text  2.     The  references  to  the  Inst,  in  this  case  arc  by  Serj.  Hill. 


248  smith's    leading   cases. 

person  who  delivers  tbem  to  the  bailee,  who  is  to  do  the  thing  about  thera. 
The  sixth  sort  is,  when  there  is  a  delivery  of  goods  or  chattels  to  somebody 
who  is  to  carry  them,  or  to  do  something  about  them  yratis,  without  any 
reward  for  such  his  work  or  carriage,  which  is  this  present  case.  I  men- 
tion these  things,  not  so  much  that  they  are  all  of  them  so  necessary  in 
order  to  maintain  the  proposition  which  is  to  be  proved,  as  to  clear  the 
reason  of   the  obligation  which  is  upon  persons  in  cases  of  trust. 

As  to  the((')  first  sort,  where  a  man  takes  goods  in  his  custody  to  keep  for 
the  use  of  the  bailor,  I  shall  consider  for  what  things  such  a  bailee  is 
answerable.  He  is  not  answerable  if  they  are  stole  without  any  fault  in 
him,  neither  will  a  common  neglect  make  him  chargeable,  but  he  must  be 
guilty  of  some  gross  neglect.  There  is,  I  confess,  a  great  authority  against 
me ;  where  it  is  held,  that  a  general  delivery  will  charge  the  bailee  to 
answer  for  the  goods  if  they  are  stolen,  unless  the  goods  are  specially 
accepted  to  keep  them  only  as  you  would  keep  your  own.  But(i)  my  Lord 
Coke  has  improved  the  case  in  his  report  of  it ;  for  he  will  have  it,  that  there 
is  no  difference  between  a  special  acceptance  to  keep  safely,  and  an  accept- 
ance generally  to  keep.  But  there  is  no  reason  nor  justice  in  such  a  case 
of  a  general  bailment,  and  where  the  bailee  is  not  to  have  any  reward,  but 
keeps  the  goods  merely  for  the  use  of  the  bailor,  to  charge  him  without  some 
default  in  him. (A;)  For  if  he  keeps  the  goods  in  such  a  case  with  an  ordinary 
r*RSn  care,  he  has  performed  the  trust  reposed  in  him.  *But  according 
L  J  to  this  doctrine  the  bailee  must  answer  for  the  wrongs  of  other 
people,  which  he  is  not,  nor  cannot  be  sufficiently  armed  against.  If  the 
law  be  so,  there  must  be  some  just  and  honest  reason  for  it,  or  else  some 
universal  settled  rule  of  law  upon  which  it  is  grounded;  and  therefore  it  is 
incumbent  upon  them  that  advance  this  doctrine,  to  show  an  undisturbed  rule 
and  practice  of  the  law  according  to  this  position.  But  to  show  that  the 
tenor  of  the  law  was  always  otherwise,  I  shall  give  a  history  of  the  author- 
ities in  the  books  in  this  manner;  and  by  them  show,  that  there  never  was 
any  such  resolution  given  before  Southcote's  case.  The  29  Ass.  28,  in  the 
first  case  in  the  books  upon  that  learning;  and  there  the  opinion  is,  that  the 
bailee  is  not  chargeable,  if  the  goods  are  stole.  As  for  8  Edw.  2,  Fitzh. 
Detinue,  59,  where  goods  were  locked  in  a  chest,  and  left  with  the  bailee, 
and  the  owner  took  away  the  key,  and  the  goods  were  stolen,  it  was  held 
that  the  bailee  should  answer  for  the  goods;  that  case  they  saj' differs 
because  the  bailor  did  not  trust  the  bailee  with  them.  But  I  cannot  see  the 
reason  of  that  difference,  nor  why  the  bailee  should  not  be  charged  with 
goods  in  a  chest,  as  well  as  with  goods  out  of  a  chest;  for  the  bailee  has  as 
little  power  over  them,  when  they  are  out  of  a  chest,  as  to  any  benefit  he 
might  have  by  them,  as  when  they  are  in  a  chest;  and  he  has  as  great 
power  to  defend  them  in  one  case  as  in  the  other.  The  case  of  9  Edw. 
4,  40,  b.  was  but  a  debate  at  bur  ;  for  Danby  was  but  a  counsel  then  :  though 
he  had  been  chief  justice  in  the  beginning  of  Ed.  4,  yet  he  was  removed, 
and  restored  again  upon  the  restitution  of  Hen.  6,  as  appears  by  Dugdale's 
Chronica  Series.  So  that  what  he  said  cannot  be  taken  to  be  any  authority, 
for  he  spoke  only  for  his  client ;  and  Genny  for  his  client,  said  the  contrary. 

(i)  Vide  Jones,  36.  {k)  Vide  L.  Raj.  C.55.     Jones,  46. 

(/)  Vide  Jones,  46,  62. 


COGGS     V.     BERNARD. 


249 


The  case  in  3  Hon.  7,  4,  is  but  a  sudden  opinion,  and  that  by  half  the  court; 
and  yet  that  is  the  only  ground  for  this  opinion  of  my  Lord  Coke  which 
besides  he  has  improved.  But  the  practice  has  been  always  at  Guildhall,  to 
disallow  that  to  be  a  sufficient  evidence  to  charge  the  bailee.  And  it  was 
practised  so  before  my  time,  all  chief  justice  Pemberton's  time,  and  ever 
since,  against  the  opinion  of  that  case.  When  I  read  Southcote's  case 
heretofore,  I  was  not  so  discerning  as  my  brother  Powys  tells  us  he  was, 
to  disallow  that  case  at  first;  and  came  not  to  be  of  this  opinion  till  I  had 
well  considered  and  digested  *that  matter.  Though  I  must  confess,  ^^nq  -t 
reason  is  strong  against  the  case,  to  charge  a  man  for  doing  such  a  L  J 
friendly  act  for  his  friend;  but  so  fur  is  the  law  from  being  so  unreason- 
able, that  such  a  bailee  is  the  least  chargeable  for  neglect  of  any.  For  if 
he(?H)  keeps  the  goods  bailed  to  him  but  as  he  keeps  his  own,  though  he 
keeps  his  own  but  negligently,  yet  he  is  not  chargeable  for  them ;  for  the 
keeping  them  as  he  keeps  his  own  is  an  argument  of  his  honesty.  A -for- 
tiori, he  shall  not  be  charged  where  they  are  stolen  without  any  neglect  in 
him.  Agreeable  to  this  is  Bracton  lib.  3,  c.  2,  99,  b.  <  Is  apud  quern  res 
deponitur  re  obL'f/atnr,  el  de  ea  re,  quam  accepit,  restituenda  tenetur,  et 
etiam  ad  id,  si  quid  in  re  deposita  dolo  commiserit ;  cidpse  autem  nomine 
noil  teneiur,  scilicet  desidise  vel  negligentiae,  quia  qui  neglic/enti  amico  rem 
custodiendam  tradit,  sihi  ipsi  et  proprise  fatuitati  hoc  debet  imputare.'  As 
suppose  the  bailee  is  an  idle,  careless,  druken  fellow,  and  comes  home  drunk, 
and  leaves  all  his  doors  open,  and  by  reason  thereof  the  goods  happen  to  be 
stolen  and  his  own ;  yet  he  shall  not  be  charged,  because  it  is  the  bailor's 
own  folly  to  trust  such  an  idle  fellow. (?i)  So  that  thi^  sort  of  bailee  is  the 
least  responsible  for  neglects,  and  under  the  least  obligation  of  any  one,  being 
bound  to  no  other  care  of  the  bailed  goods  than  he  takes  of  his  own.  This 
Bracton  I  have  cited  is,  I  confess,  an  old  author;  but  in  this  his  doctrine  is 
agreeable  to  reason,  and  to  what  the  law  is  in  other  countries.  The  civil  law 
is  so  as  you  have  it  in  Justinian's  Inst.  lib.  3,  tit.  15.  There  the  law  goes 
further;  for  there  it  is  said  :  <  Ex  eo  solo  tenetur  si  quid  dolo  commiserit : 
culpse  autem  nomine,  id  est,  desidise  ac  negligentiae,  non  tenetur.  Itaque  secu- 
rus  est  qui parum  diligenter  custoditam  rem  furto  amiserit,  quia  qui  neg- 
ligenti  amico  rem  cuslodicndam  tradit,  non  ei,  scd  suse  facilitati,  id  impu- 
tare debet.'  So  that  such  a  bailee  is  not  chargeable  without  an  apparent  gross 
neglect.  And  if  there  is  such  a  gross  neglect,  it  is  looked  upon  as  an  evidence  of 
fraud.  Nay,  suppose  the  bailee  undertakes  safely  and  securely  to  keep  the 
goods,  in  express  words;  yet  even  that  would  not  charge  him  with  all  sorts  of 
neglects ;  for  if  such  a  promise  were  put  into  writing,  it  would  not  charge  so  far, 
even  then.  Hob.  34.  a  covenant,  that  the  covenantee  shall  have,  occupy,  and  en- 
joy certain  lands,  does  not  bind  against  the  acts  of  wrong-doers.  3  Cro.  214,  ace, 
2  Cro.  425,  ace,  upon  a*  promise  for  a  quiet  enjoyment.  And  if  a  pro-  ^  ^q^  -, 
mise  will  not  charge  a  man  against  wrong-doers,  when  put  in  writing,  it  ^  -• 

is  hard  it  should  do  it  more  so  when  spoken.  Doct.  &  Stud.  130,  is  in  point, 
that  though  a  bailee  do  promise  to  re-deliver  goods  safely,  yet,  if  he  have 
nothing  for  the  keeping  of  them,  he  will  not  be  answerable  for  the  acts  of  a 
wrong-doer.     So  that  there  is  neither  sufiicient  reason  nor  authority  to  sup- 

(rn)  HaniseVinn.  p.  60.5.1 

(n)  Sed  vide  Doorman  v.  Jenkins,  2  A.  &  E.  256.  post  96,  in  nota. 


250  smith's   leading   cases. 

port  the  opiuion  in  Southcotc's  ease.  If  the  bailee  be  guilty  of  gross  neg- 
ligence, he  will  be  chargeable,  but  not  for  any  ordinary  neglect. 

As  to  the  second  sort  of  bailment,  viz.  commodatum,  or  lending  r/ratis, 
the  borrower  is  bound  to  the  strictist  care  and  diligence  to  keep  the  goods, 
60  as  to  restore  them  back  again  to  the  lender;  because  the  bailee  has  a  be- 
nefit by  the  use  of  them,  so  as  if  the  bailee  be  guilty  of  the  least  neglect  he 
will  be  answerable ;  as  if  a  man  should  lend  another  a  horse  to  go  westward 
or  for  a  month ;  if  the  bailee  go  northward,  or  keep  the  horse  above  a  month ;  if 
any  accident  happen  to  the  horse  in  the  northern  journey,  or  after  the  expi- 
ration of  the  month,  the  bailee  will  be  chargeable;  because  he  has  made  use 
of  the  horse  contrary  to  the  trust  he  was  lent  to  him  under ;  and  it  may  be, 
if  the  horse  had  been  used  no  otherwise  than  he  was  lent,  that  accident  would 
not  have  befallen  him.  This  is  mentioned  in  Bracton,  ulisujira  :  his  words 
are,(o)  '  Is  autem  cut  res  aliqua  utenda  datur,  re  ohligatur,  quae  commodata 
est,  sed  magna  differentia  est  inter  mutiium  et  commodatum  ;  quia  is  qui  rem 
mutuam  accej)if,ad  ■ipsa7nrestituendam  tenetur,  velejus  pretium,  si  forte  in- 
cendio,  ruina,  naufragio,  aut  latronum  velJiostium  incursu,  consumpta  fuerit, 
vel  dcperdita,  suhtracta  vel  oLlata.  Et  qui  rem  uiendam  accepit,  non  svfficit 
ad  rei  custodiam,  quod  talem  diligentiam  adhiheat,  qualem  suis  rehis  pro- 
priis  adhibere  solet,  si  alias  eam  diligentius potuit  custodire  j  ad  vim  autem 
majorem,  vel  casus  fortuitas  non  tenetur  quis,  nisi  cidpa  sua  intervenerit. 
Lt  si  rem  sihi  commodatam  domi,  secum  detulerit  cum  peregre  profcctus 
fuerit,  et  illam  incursu  hostium  vel prsedonunij  vel  naufragio,  amiscrit,  non 
est  dubium  qtcin  ad  rei  rcstitutionem  tcncatitr.'  I  cite  this  author,  though  I 
confess  he  is  an  old  one,  because  his  opinion  is  reasonable,  and  very  much  to 
my  present  purpose,  and  there  is  no  authority  in  the  law  to  the  contrary. 
But  if  the  bailee  put  his  horse  in  his  stable,  and  he  were  stolen  from  thence 
^q-j  -.  the  bailee  shall  not  be  ^answerable  for  him.  But  if  he  or  his  servant 
L  -'  leave  the  house  or  stable  doors  open,  and  the  thieves  take  the  oppor- 

tunity of  that  and  steal  the  horse,  he  will  be  chargeable  :  because  the  neglect 
gave  the  thieves  the  occasion  to  steal  the  horse.  Bracton  says,  the  bailee 
must  use  the  utmost  care ;  but  yet  he  shall  not  be  chargeable,  where  there 
is  such  a  force  as  he  cannot  resist. 

As  to  the  third  sort  of  bailment,  scilicet  locatio,  or  lending  for  hire,  in  this 
case  the  bailee  is  also  bound  to  take  the  utmost  care,  and  to  return  the  goods 
when  the  time  of  the  hiring  is  expired.  And  here  again  I  must  recur  to  my 
old  author,  fol.  62,  b.  ;  O;)  '  Qui  pro  usu  vestimentorum  auri  vel  argenti, 
vel  alterius  ornamenti,  vel  jumenti,  mercedem  dederit  vel promiserit,  talis  ah 
CO  desideratur  custodia,  qualem(q)  diligentissimus  paterfamilias  suis  rebus 
adhihet,  quam  si  jireestiterit  et  rem  aliquo  casu  amiserit,  ad  rem  restituendani 
non  tenebitur.  Nee  sufficit  aliquem  talem  diligentiam  adhibere,  qualem  suis 
rebus  propriis  adhiberet,  nisi  talem  adhibuerit,  de  qua  superius  dictum  est.' 
From  whence  it  appears,  that  if  goods  are  let  out  for  a  reward,  the  hirer 
is  bound  to  the  (r)  utmost  diligence,  such  as  the  most  diligent  father  of  a 
family  uses ;  and  if  he  uses  that,  he  shall  be  discharged.  But  every  man, 
how  diligent  soever  he  be,  being  liable  to  the  accident  of  robbers,  though  a 

(o)  This  is  cited  from  Bracton,  but  is  in  efiFect  the  text  of  Just.  Tnst.  lib.  3,  tit.  1.5,  texl.  2- 
Ip)  Just.  Inst.  lib.  3,  tit.  2r>,  text  5.  {q)  Vide  Jones,  87. 

(j)  Comm.  Vinn .  in  Just.  Inst,  lib,  3,  tit.  25,  text  5,  n.  2,  3, 


coaas  V.  Bernard.  251 

diligent  man  is  not  so  liable  as  a  careless  man,  tlie(i)  bailee  shall  not  be 
answerable  in  this  case,  if  the  goods  are  stolen. 

As  to  the  fourth  sort  of  bailment,  viz.  vadium,  or  a  pawn,  in  this  I  shall 
consider  two  things ;  first,  what  property  the  pawnee  has  in  the  pawn  or 
pledge;  and  secondly,  for  what  neglects  he  shall  make  satisfaction.  As  to 
the  first,  he  has  a  special  property,  for(;)  the  pawn  is  a  securing  to  the  pawnee, 
that  he  shall  be  repaid  his  debt,and  to  compel  the  pawnor  to  pay  him.  But 
if  the  pawn  be  such  as  it  will  be  the  worse  for  using,  the(?<)  pawnee  cannot 
use  it,  as  cloths,  &c. ;  but  if  it  be  such  as  will  be  never  the  worse,  as  if 
jewels  for  the  purpose  were  pawned  to  a  lady,  she(f)  might  use  them  ;  but 
then  she  must  do  it  at  her  peril ;  for  whereas,  if  she  keeps  them  locked  up 
in  her  cabinet,  if  her  cabinet  should  be  broke  open,  and  the  jewels  taken 
from  thence,  she  would  be  excused ;  if  she  wears  them  abroad,  and  is  there 
robbed  of  them,  she  will  be  answerable.  And  the  reason  is,  because  the 
pawn  is  in  the  nature  of  a  deposit,*  and,  as  such,  is  not  liable  to  ^^.^  -, 
be  used.  And  to  this  effect  is  Ow.  123.  But  if  the  pawn  be  of  L  "  -' 
such  a  nature,  as  the  pawnee  is  at  any  charge  about  the  thing  pawned,  to 
maintain  it,  as  a  horse,  cow,  &c.,  then^-za)  the  pawnee  may  use  the  horse  in 
a  reasonable  manner,  or  milk  the  cow,  &c.,  in  recompence  for  the  meat.  As 
to  the  second  point,  Bracton,  99,  b.  gives  you  the  answer  : — '  Creditor,  qui 
pignus  accepit,  re  obligatur,  et  ad  illam  restiiuendam  tenetur  ;  et  ctcm  hnjus 
modi  res  in  pignus  data  sit  utriusque  gratia,  scilicet  debitoris,  quo  magis 
ei pecunia  crederetur,  et  creditoris  quo  magis  et  in  tuto  sit  creditum,  siifficit 
ad  ejus  rei  custodiam  diligentiam  exactam  adhihere,  quam  si  praestiterit,  et 
rem  casa  amiserit,  securus  esse  possit,  nee  iinpedietiLr  creditum  petere'{x) 
In  efl'ect,  if  a  creditor  takes  a  pawn,  he  is  bound  to  restore  it  upon  the  pay- 
ment of  the  debt;  but  yet  it  is  sufficient,  if  the  pawnee  use  true  diligence, 
and  he  will  be  indemnified  in  so  doing,  and  notwithstanding  the  loss,  yet  he 
ehall  resort  to  the  pawnor  for  his  debt.  Agreeable  to  this  is  29  Ass.  28', 
and  Southcote's  case  is.  But,  indeed,  the  reason  given  in  Southcote's  case  is 
because  the  pawnee  has  a  special  property  in  the  pawn.  But  that  is  not 
the  reason  of  the  case ;  and  there  is  another  reason  given  for  it  in  the  book 
of  Assize,  which  is  indeed  the  true  reason  of  all  these  cases,  that  the  law  re- 
quires nothing  extraordinary  of  the  pawnee,  but  only  that  he  shall  use  an 
ordinary  care  for  restoring  the  goods.  But,  indeed,  if  the  money  for  which 
the  goods  were  pawned  be  tendered  to  the  pawnee  before  they  are  lost,  then 
the  pawnee  shall  be  answerable  for  them ;  because  the  pawnee  by  detaining 
them  after  the  tender  of  the  money,  is  a  wrong-doer,  and  is  a  wrongful  de- 
tamer  of  the  goods,  and  the  special  property  of  the  pawnee  is  determined. 
And  a  man  that  keeps  goods  by  wrong  must  be  answerable  for  them  at  all 
events ;  for  the  detaining  of  them  by  him  is  the  reason  of  the  loss.  Upon  the 
same  difi"erence  as  the  law  is  in  relation  to  pawns,  it  will  be  found  to  stand 
in  relation  to  goods  found. 

As  to  the  fifth  sort  of  bailment,  viz.  a  delivery  to  carry  or  otherwise 
manage,  for  a  reward  to  be  paid  to  the  bailee,  those  cases  are  of  two  sorts  ; 
either  a  delivery  to  one  that  exercises  a  public  employment,  or  a  delivery  to 
a  private  person.     First,  if  it  be  to  a  person  of  the  first  sort,  and  he  is  to 

(s)  D.  ace.  post.  1037.  (<)  S.  P.  3  Salk.  268.     Holt,  528.     Salk.  522. 

{u)  Ibid.  (p)  Ibid.     Vide  Jones,  80,  81. 

(w)  S.  P.  3  Salii.  268.  Holt,  528.  Salk.  522.     Vide  Jones,  80,  81. 
{'£)  This  is  also  the  text  of  Just.  In.^t.  lib.  iii.  tit.  15,  text  4.  Dc  pignore. 


252  smith's   leading   cases. 

r  *93 1  ^^^^^  ^  reward,  he  is  bound  *to  anwer  for  the  goods  at  all  events. 
L  J  And  this  is  the  case  of  the  common  carrier,  common  hoyman,  master 
of  a  ship,  &c. ;  which  case  of  a  master  of  a  ship  was  first  adjudged,  26  Car. 

r*93«l  *^'  *^"  ^^^^  ^''^^^  °^  ^^°^^  ^'  ^^^'^'  Rajm.  220.  1  Vent.  190,  238. 
L  J  The  law  charges  this  person  thus  entrusted  to  carry  goods,  against 
all  events,  but  acts  of  God,  and  of  the  enemies  of  the  king.  For  though 
the  force  be  never  so  great,  as  if  an  irresistible  multitude  of  people  should 
rob  him,  nevertheless  he  is  chargeable.  And  this  is  a  politic  establishment, 
contrived  by  the  policy  of  the  law,(a)  for  the  safety  of  all  persons,  the  ne- 
cessity of  whose  affairs  oblige  them  to  trust  these  sorts  of  persons,  that  they 
may  be  safe  in  their  ways  of  dealing;  for  else  these  carriers  might  have  an 
opportunity  of  undoing  all  persons  that  had  any  dealings  with  them,  by 
combining  with  thieves,  &c.,  and  yet  doing  it  in  such  a  clandestine  manner 
as  would  not  be  possible  to  be  discovered.  And  this  is  the  reason  the  law 
is  founded  upon  in  that  point.  The  second  sort  are  bailees,  factors,  and 
such  like.  And  though  a  bailey  is  to  have  a  reward  for  his  management, 
yet  he  is  only  to  do  the  best  he  can;  and  if  he  be  robbed,  &c.,  it  is  a  good 
account.  And  the  reason  of  his  being  a  servant  is  not  the  thing;  for  be  is 
at  a  distance  from  his  master,  and  acts  at  discretion,  receiving  rents  and 
selling  corn,  &c.  And  yet  if  he  receives  his  master's  money,  and  keeps  it 
locked  up  with  a  reasonable  care,  he  shall  not  be  answerable  for  it,  though 
it  be  stolen.  But  yet  this  servant  is  not  a  domestic  servant,  nor  under  his 
master's  immediate  care.  But  the  true  reason  of  the  case  is,  it  would  be 
unreasonable  to  charge  him  with  a  trust,  further  than  the  nature  of  the 
thing  puts  it  in  his  power  to  perform  it.  But  it  is  allowed  in  the  other 
cases,  by  reason  of  the  necessity  of  the  thing.     The  same  law  of  a  factor. 

As  to  the  sixth  sort  of  bailment,  it  is  to  be  taken,  that  the  bailee  is  to 
have  no  reward  for  his  pains,  but  yet  that  by  his  ill  management  the  goods 
are  spoiled.  Secondly,  it  is  to  be  understood,  that  there  was  a  neglect  in 
the  management.  But  thirdly,  if  it  had  appeared  that  the  mischief  hap- 
pened by  any  person  that  met  the  cart  in  the  way,  the  bailee  had  not  been 
chargeable.  As  if  a  drunken  man  had  come  by  in  the  streets,  and  had 
pierced  the  cask  of  brandy ;  in  this  case  the  defendant  had  not  been 
r  *Q4  I  answerable  for  it,  *because  he  was  to  have  nothing  for  his  pains. 
L  Then  the  bailee  having  undertaken  to  manage  the  goods,  and  having 

managed  them  ill,  and  so  by  his  neglect  a  damage  has  happened  to  the 
bailor,  which  is  the  case  in  question,  what  will  you  call  this  ?  In  Bracton, 
lib.  3,  100,  it  is  called  mandatum.  It  is  an  obligation  which  arises  ex 
mandato.  It  is  what  we  call  in  English  an  acting  by  commission.  And 
if  a  man  acts  by  commission  for  another  gratis,  and  in  the  executing  his 
commission  behaves  himself  negligently,  he  is  answerable.  Vinnius  in  his 
Commentaries  upon  Justinian,  lib.  3,  tit.  27,  684,  defines  mandatum  to  be 
contractus  quo  aliquid  (/rattiito  r/erendum  committitur  et  accipitur.  This 
undertaking  obliges  the  undertaker  to  a  diligent  management.  Bracton,  ubi 
supra,  says,  '  Cuntrahitur  etiam  ohligatio  non  solum  scripto  et  verbis,  sed 
et  C07isensu,  sicui  in  contractibus  bonse  fidei ',  i(t  in  emptionibus,  venditioni- 
luSj  locationibus,  conduction  ibus,  societatibus  et  mandatis.       I  do  not  find 

(a)  Just.  Inst.  lib.  4,  tit.  5,  text  3.     Vide  Vinn.  Comm.  in  Just.  Inst.  lib.  3,  tit.  27,  text 
l,n.  2. 


COGGS     V.     BERNARD.  253 

this  word  in  any  other  author  of  our  law,  besides  in  this  place  in  Bracton, 
•which  is  a  full  authority,  if  it  be  not  thought  too  old.  But  it  is  supported 
by  good  reason  and  authority. 

The  reasons  are,  first,  because  in  such  a  case,  a  neglect  is  a  deceit  to  the 
bailor.  For,  when  he  entrusts  the  bailee  upon  his  undertaking  to  be  care- 
ful, he  has  put  a  fraud  upon  the  plaintiff  by  being  negligent,  his  pretence 
of  care  being  the  persuasion  that  induced  the  plaintiff  to  trust  him.  And  a 
broach  of  a  trust  undertaken  voluntarily  will  be  a  good  ground  for  an  action. 
1  Roll.  Abr.  10.  2  Hen.  7,  11,  a  strong  case  to  this  matter.  There  the 
case  was  an  action  against  a  man  who  had  undertaken  to  keep  an  hundred 
sheep,  for  letting  them  be  drowned  by  his  default.  And  there  the  reason 
of  the  judgment  is  given,  because  when  the  party  has  taken  upon  him  to 
keep  the  sheep,  and  after  suffers  them  to  perish  in  his  default;  inasmuch  as 
he  has  taken  and  executed  his  bargain,  and  has  them  in  his  custody,  if, 
after,  he  does  not  look  to  them,  an  action  lies.  For  here  is  his  own  act, 
viz.  his  agreement  and  promise,  and  that  after  broke  of  his  side,  that  shall 
give  a  suflBcient  cause  of  action. 

But,  secondly,  it  is  objected,  that  there  is  no  consideration  to  ground  this 
promise  upon,  and  therefore  the  undertaking  is  but  nuchim  pactum.  But 
to  this  I  answer,  that  the  owner's  trusting  him  with  the  goods  is  a  sufficient 
consideration  to  *oblige  him  to  a  careful  management.  Indeed  if  ^q-  -, 
the  agreement  had  been  executory,  to  carry  these  brandies  from  the  L  J 
one  place  to  the  other  such  a  day,  the(a)  defendant  had  not  been  bound  to 
carry  them.  But  this  is  a  different  case,  for  assumpsit  does  not  only  signify 
a  future  agreement,  but  in  such  a  case  as  this,  it  signifies  an  actual  entry 
upon  the  thing,  and  taking  the  trust  upon  himself.  And  if  a  mau(Z')  will 
do  that,  and  miscarries  in  the  performance  of  his  trust,  an  action  will  lie 
against  him  for  that,  though  nobody  could  have  compelled  him  to  do  the 
thing.  The  19  Hen.  6,  49,  and  the  other  cases  cited  by  my  brothers,  show 
that  this  is  the  difference.  But  in  the  11  Hen.  4,  83,  this  difference  is 
clearly  put,  and  that  is  the  only  case  concerning  this  matter,  which  has  not 
been  cited  by  my  brothers.  There  the  action  was  brought  against  a  car- 
penter, for  that  he  had  undertaken  to  build  the  plaintiff  a  house  within  such 
a  time,  and  had  not  done  it,  and  it  was  adjudged  the  action  would  not  lie. 
But  there  the  question  was  put  to  the  court — what  if  he  had  built  the 
house  unskilfully  ? — and  it  is  agreed  in  that  case  an  action  would  have  lain. 
There  has  been  a  question  made,  if  I  deliver  goods  to  A.,  and  in  considera- 
tion thereof  he  promise  to  re-deliver  them,  if  an  action  will  lie  for  not  re- 
delivering them;  and  ic  Yelv.  4,  judgment  was  given  that  the  action  would 
lie.  But  that  judgment  was  afterwards  reversed ;  and,  according  to  that 
reversal,  there  was  judgment  afterwards  entered  for  the  defendant  in  the 
like  case.  Yelv.  128.  But  those  cases  were  grumbled  at ;  and  the  rever- 
sal of  that  judgment  in  Yelv.  4,  was  said  by  the  judges  to  be  a  bad  resolu- 
tion ;  and  the  contrary  to  that  reversal  was  afterwards  most  solemnly  ad- 
judged in  2  Cro.  667.  Tr.  21  Jac.  1,  in  the  King's  Bench,  and  that  judg- 
ment affirmed  upon  a  writ  of  error.  And  yet  there  is  no  benefit  to  the 
defendant,  nor  no  consideration  in  that  case,  but  the  having  the  money  in 
his  possession,  and  being  trusted  with  it,  and  yet  that  was  held  to  be  a 

(a)  Vide  Jones,  56,  57,  61.  (6)  Just.  Inst.  lib.  3,  tit.  27,  text  11. 


254 


smith's   leading    cases. 


good  consideration.  And  so  a  bare  being  trusted  with  another  man's  goods 
must  be  taken  to  be  a  sufficient  consideration,  if  the  bailee  once  enter  upon 
the  trust,  and  take  the  goods  into  his  possession.  The  declaration  in  the 
case  of  iMors  v.  Slew,  was  drawn  by  the  greatest  drawer  in  England  at  that 
time ;  and  in  that  declaration,  as  it  was  always  in  all  such  cases,  it  was 
r*on  thought  most  prudent  to  put  in,  that  *a  reward  was  to  be  paid  for 
L  -^  the  carriage.  And  so  it  has  been  usual  to  put  it  in  the  writ,  where 
the  suit  is  by  original.  I  have  said  thus  much  in  this  case,  because  it  is  of 
great  consequence  that  the  law  should  be  settled  in  this  point;  but  I  do 
not  know  whether  I  may  have  settled  it,  or  may  not  rather  have  unsettled 
it.  But  however  that  happen,  I  have  stirred  these  points,  which  wiser 
heads  in  time  may  settle.     And  judgment  was  given  for  the  plaintiff. 


Thk  case  of  Coggs  v.  Bernard,  is  one 
of  the  most  celebrated  ever  decided  in 
Westminster  Hail,  and  justly  so,  since 
the  elaborate  judgment  of  Lord  Holt 
contains  the  first  well-ordered  exposition 
of  the  English  law  of  bailments.  The 
point  which  the  decision  directly  in- 
volves, viz.  that  if  a  man  undertake  to 
carry  goods  safely,  he  is  responsible  for 
damage  sustained  by  them  in  the  carri- 
age through  his  neglect,  though  he  was 
not  a  common  carrier,  and  was  to  have 
nothing  for  the  carriage,  is  now  clear 
law,  and  forms  part  of  a  general  propo- 
sition in  the  law  of  principal  and  agent, 
which  may  be  stated  in  the  following 
words  :  —  The  confidence  induced  by 
iinderlaking  any  service  for  another  is 
a  sufficient  legal  consideration  to  create 
a  duty  in  the  performance  of  it.  [See 
Shillibeer  v.  Glynn,  2  M.  &  W.  143; 
Whitehead  v.  Greelham,  2  Bing.  464.] 
And  this  proposition  includes  cases 
stronger  than  that  reported  in  the  text. 
For  there  Bernard  had  undertaken  to 
lay  the  goods  down  safely,  whereby  he 
introduced  a  special  term  into  his  con- 
tract; for  it  will  be  seen  from  the  judg- 
ments, particularly  Lord  Holt's,  that 
notwithstanding  what  was  said  by 
Lord  Coke  in  Southcote's  case,  there 
is  a  difference  between  the  effect  of  a 
gratuitous  undertaking  to  keep  or  carry 
goods,  and  a  gratuitous  undertaking 
to  keep  or  carry  them  safely.  But, 
under  the  rule  just  laid  down,  a  gra- 
tuitous and  voluntary  agent  who  has 
given  no  special  undertaking,  though 
the  degree  of  his  responsibility  is 
greatly    inferior    to    that    of   a    hired 


agent,  is  yet  bound  not  to  be  guilty  of 
gross  negligence.  This  proposition  is 
affirmed  by  several  recent  cases.  In 
Wilkinson  v.  Coverdale,  1  Esp.  74,  it 
was  alleged  that  the  defendant  had  un- 
dertaken gratuitously  to  get  a  fire-policy 
renewed  for  the  plaintiff",  but  had,  in 
doing  so,  neglected  certain  formalities, 
the  omission  of  which  rendered  the  po- 
licy inoperative.  Upon  it  being  doubted 
at  Nisi  Prius  whether  an  action  would 
lie  under  these  circumstances,  Erskine 
cited  a  MS.  note  of  Mr.  J.  BuUer  in 
Wallace  v.  Telfair,  wherein  that  judge 
had  ruled,  under  similar  circumstances, 
that,  though  there  was  no  consideration 
for  one  party's  undertaking  to  procure 
an  insurance  for  another,  yet  wMiere  a 
party  voluntarily  undertook  to  do  it,  and 
proceeded  to  carry  his  undertaking  into 
effect  by  getting  a  policy  underwritten, 
but  did  it  so  negligently  or  tmskilfully 
that  the  party  could  derive  no  benefit 
from  it,  in  that  case  he  should  be  liable 
to  an  action ;  in  which  distinction  Lord 
Kenyon  acquiesced.  So  in  Beauchamp 
V.  Powley,  1  M.  &  Rob.  38,  where  the 
defendant,  a  stage-coachman,  received  a 
parcel  to  carry  gratis,  and  it  was  lost 
upon  the  road.  Lord  Tenterden  directed 
the  jury  to  consider  whether  there  was 
great  negligence  on  the  part  of  the  de- 
fendant, and  the  jury  thinking  that  there 
was,  found  a  verdict  against  him.  So, 
too,  in  Doorman  v.  Jenkins,  2  Adol.  &. 
Ell.  256,  in  assu7nj)sit  against  the  de- 
fendant, as  bailee  of  money  entrusted  to 
him  to  keep  without  reward,  it  was 
proved  that  he  had  given  the  following 
account  of  its  loss,  viz.  that  he  was  a 


COQGS     V.     BERNARD. 


255 


coffee-Iiniiso  keeper,  and  had  placed  the 
money  in  his  casli-box  in  tlie  tap-room, 
which  had  a  bar  in  it,  and  was  open  on 
Snnday,  though  the  other  parts  of  his 
house  were  not,  and  out  of  which  the 
cash-box  was  stolen  upon  a  Sunday. 
The  Lord  Chief  Justice  told  the  jury 
that  it  did  not  follow,  from  the  defend- 
ant's having  lost  his  own  money  at  the 
r*q7-i  same  time  as  the  plaintiff's,  *that 
•-  ■'he  had  taken  such  care  of  the 
plaintiff's  money  as  a  reasonable  man 
would  ordinarily  take  of  his  own;  and 
he  added,  that  that  fact  afforded  no  an- 
swer to  the  action,  if  they  believed  that 
the  loss  occurred  from  gross  negligence. 
The  jury  having  found  a  verdict  tor  the 
plaintiff,  the  court  refused  to  set  it  aside, 
it  is  clear,  from  the  above  decisions, 
tliat  a  gratuitous  bailee  or  other  agent 
is  chargeable  when  he  has  been  guilty 
of  gross  negligence ;  and  it  is  equally 
clear,  both  from  the  words  of  the  judges 
in  several  of  the  above-cited  cases,  and 
also  from  express  decisions,  that  for  no 
other  kind  of  negligence  will  he  be 
liable,  except  in  the  single  case  which 
shall  by  and  by  be  specified.  In  Door- 
man v.  Jenkins,  Patteson,  J.,  says,  "  It 
is  agreed  on  all  hands  that  the  defend- 
ant is  not  liable,  unless  he  has  been 
guilty  of  gross  negligence."  "  The 
r97fll  <^o""S6''"  *says  Taunton,  J.,  "  pro- 
^  -'  perly  admitted,  that  as  this  bail- 
ment was  for  the  benefit  of  the  bailor, 
and  no  remuneration  was  given  to  the 
bailee,  the  action  could  not  be  maintain- 
able except  in  the  case  of  gross  negli- 
grnce"  In  Shiells  v.  Blackburne,  1  H. 
Bl.  158,  the  defendant,  having  received 
orders  from  his  correspondent  in  Ma- 
deira to  send  a  quantity  of  cut  leather 
thither,  employed  Goodwin  to  execute 
the  order.  Goodwin  accordingly  pre- 
pared it,  and  sent  it,  along  with  a  case 
of  leather  of  the  same  description  be- 
longing to  himself,  to  the  defendant, 
who,  to  save  the  expense  of  two  entries, 
voluntarily  and  toithout  compensation, 
by  agreement  with  Goodwin,  made  one 
entry  of  both  cases,  but  entered  them 
by  tiiis«take  as  wrought  leather,  instead 
of  dressed  leather,  in  consequence  of 
which  mistake  the  cases  were  both 
seized ;  and  an  action  having  been 
brought  by  the  assignees  of  Goodwin, 
who  had  become  bankrupt,  against  the 
defendant,  to  recover  compensation  for 
the  loss,  the  general  issue  was  pleaded, 
and  there  was  a  verdict  for  the  plaintiff, 
which  the  court  set  aside,  and  granted 


a  now  trial,  upon  the  ground  that  the 
defendant  was  not  guilty  either  of  gross 
negligence  or  fraud.  This  case  was 
much  remarked  upon  in  Doorman  v. 
Jenkins,  which  it  resembled  in  the  cir- 
cumstance that  the  bailee  in  each  case 
lost  property  of  his  own  along  with  that 
which  had  been  entrusted  to  him.  "The 
case  of  Shiells  v.  Blackburne,"  says 
Taunton,  J.,  "  created  at  first  some  de- 
gree of  doubt  in  our  minds.  It  was  said 
that  the  court  in  that  case  treated  the 
question  as  a  matter  of  law,  and  set 
aside  the  verdict,  because  the  thing 
charged,  viz.  the  false  description  of  the 
leather  in  the  entry,  did  not  amount  to 
gross  negligence,  and  therefore  the 
jury  had  mistaken  the  law.  I  do  not 
view  the  case  in  that  light.  The  jury 
there  found  that  in  fact  the  defendant 
had  been  guilty  of  negligence,  but  the 
court  thought  they  had  drawn  a  wrong 
conclusion  as  to  that  fact."  In  Dartnall 
V.  Howard,  4  B.  &  C.  345,  the  declara- 
tion stated,  that  in  consideration  that  the 
plaintiff',  at  the  request  of  the  defendants, 
would  employ  them  to  lay  out  1,400^. 
in  purchasing  an  annuity,  the  defend- 
ants promised  to  perform  and  fulfil  their 
duty  in  the  premises,  and  that  they  did 
not  perform  or  fulfil  their  duty,  but,  on 
the  contrary,  laid  out  the  money  in  the 
purchase  of  an  annuity  on  the  personal 
security  of  H.  M.  Goold  and  Lord  Athen- 
ry,  who  were  both  in  insolvent  circum- 
stances. The  court,  after  verdict,  ar- 
rested the  judgment  upon  the  ground 
that  the  defi^ndants  appeared  to  be  gra^ 
tuilous  agents,  and  it  was  not  averred 
that  they  had  acted  either  with  negli- 
gence or  dishonesty.  See  also  Bourne 
v.  Diggles,  2  Chitt.  311 ;  and  Moore  v. 
Mogue,  Cowp.  480. 

From  the  two  classes  of  cases  just 
enumerated,  it  is  plain  that  an  unpaid 
agent  is  liable  for  gross  negligence, 
and  equally  plain  that  he  is  liable  for 
nothing  less.  From  the  latter  of  these 
propositions  there  is,  however,  as  has 
been  already  stated,  one  exception,  and 
it  is  contained  in  the  following  words  of 
Lord  Loughborough,  when  delivering 
judgment  in  Shiells  v.  Blackburne: — 
"  I  agree,"  said  his  lordship,  "  with  Sir 
William  Jones,  that  when  a  bailee  un- 
dertakes to  perform  a  gratuitous  act, 
from  which  the  bailor  alone  is  to  receive 
benefit,  then  the  bailee  is  only  liable 
for  gross  negligence.  But  if  a  man 
gratuitously  nnderta.kes  to  do  a  thing 
to  the  best  of  his  skill,  tvhen  his  situa 


256 


BMITII'S    LEADING    CASES. 


tion  or  profession  is  such  as  to  imply 
skill,  an  omission  of  tiiat  skill  is  imput- 
able to  him  as  gross  negligence.  If,  in 
r  *qR  1  ^^''^  *ca»e,  a  shipbroker,  or  a  clerk 
'-  -'in  the  custom-house,  had  under- 
taken to  enter  the  g-oods,  a  wrong  entry 
would  in  them  be  gross  negligence, 
because  their  situation  and  employment 
necessarily  imply  a  competent  degree 
of  knowledge  in  making  such  entries." 
It  perhaps  may  be  more  correct  to  call 
this  a  distinction  engrafted  on  the  gen- 
eral doctrine,  than  an  exception  from 
it:  since  it  does  not  render  any  unpaid 
agent  liable  for  less  than  gross  negli- 
gence ;  but  renders  that  gross  negli- 
gence, in  some  agents,  which  would  not 
be  so  in  others.  [See  Wyld  v.  Pick- 
ford,  8  M.  &  W.  443,  and  Wilson  v. 
Brett,  11  M.  Sl  W,  113,  where  it  was 
laid  down  that  an  unpaid  agent  is  bound 
to  use  stich  skill  as  he  is  shown  to  pos- 
sess, and  is  guilty  of  culpable  negli- 
gence if  he  do  not.  And  Rolfe,  B.,  in 
that  case  said,  that  there  is  no  differ- 
ence between  negligence  and  gross 
negligence,  that  it  is  the  same  thing, 
with  the  addition  of  a  vituperative 
epithet.  See  Pothier  Contract  de  depot, 
cap.  2,  art.  1,  s.  72.] 

The  case  of  Coggsv.  Bernard  derives 
most  of  its  celebrity  from  the  elaborate 
dissertation  upon  the  general  law  of 
Bailments  delivered  by  Lord  Holt  in 
pronouncing  judgment.  His  lordship 
as  we  have  seen,  distributes  all  Bail- 
ments into  the  following  six  classes, 
viz. : — 

1.  Deposilum ;  or  a  naked  bailment  of 
goods,  to  be  kept  for  the  use  of  the 
bailor. 

2.  Commodatum.  Where  goods  or 
chattels  that  are  useful  are  lent  to 
the  bailee  gratis,  to  be  used  by  him. 

3.  Locntio  rei.  Where  goods  are  lent 
to  the  bailee,  to  be  used  by  him  for 
hire. 

4.  Vadium.     Pawn. 

5.  Locatio  operis  faciendi.  Where 
goods  are  delivered  to  be  carried,  or 
something  is  to  be  done  about  them, 
for  a  reward  to  be  paid  to  the  bailee. 

6.  Mundutum.  A  delivery  of  goods  to 
somebody,  who  is  to  carry  them,  or  do 
something  about  them,  gratis. 

Sir  William  Jones,  in  Ins  Treati.se  on 
Bailments,  objects  to  this  division;  "  for," 
r*qQ  -1  says  he,  "  in  truth  Hus fifth  sort  is 
^  -'no  more  than  a  br;i  nch  of  tiie  third, 
and  he  might  with  equal  reason  have 
added  a  seventh,  since  the  fifth  is  capa- 


ble of  another  subdivision."  The  fifth 
of  the  classes  enumerated  by  Lord  Holt 
is,  as  we  iiave  seen,  Locatio  operis  fa- 
ciendi, i.  e.  where  goods  are  delivered 
to  be  carried,  or  something  is  to  be 
done  about  them  for  reward  to  be  paid 
to  the  bailee.  And  this,  with  due  sub- 
mission to  so  great  an  authority  as  Sir 
William  Jones,  cannot  be  reasonably 
treated  as  a  branch  of  the  third,  which 
is  Locatio  rei,  i.  e.  where  goods  are  lent 
to  the  bailee,  to  be  used  by  him  for 
hire;  for  there  exists  between  them  this 
essential  difference,  viz.  that  in  cases 
falling  under  the  third  class,  or  locatio 
rei,  the  reward  is  paid  by  the  bailee  to 
the  bailor;  whereas  in  cases  falling  un- 
der the  fifth  class,  or  locatio  operis 
faciendi,  the  reward  is  always  paid  by 
the  bailor  to  the  bailee.  It  is  true  that 
in  Latin  both  classes  are  described  by 
the  word  locatio,  which  probably  gave 
rise  to  Sir  William  Jones's  opinion  that 
both  ought  to  be  included  under  the  same 
head  ;  but  then  in  the  third  class,  loca- 
tio rei,  the  word  locatio  is  used  to  de- 
scribe a  mode  of  bailment,  viz.  by  the 
hiring  of  the  thing  bailed ;  whereas  in 
the  fifth  class,  locatio  operis  faciendi, 
the  same  word  locatio  is  used,  not  to 
describe  any  mode  of  bailment,  but  to 
signify  the  hiring  of  the  man^s  labour 
lotio  is  to  work  upon  the  Iking  bailed ; 
for  as  to  the  thing  bailed,  that  is  not 
hired  at  all,  as  it  is  in  cases  falling 
within  the  third  class.  If,  indeed,  Lord 
Holt  had  been  enumerating  the  different 
sorts  of  hirings,  not  of  bailments,  he 
would  no  doubt,  like  the  civilians,  have 
classified  both  locatio  rei  and  locatio 
operis  under  the  word  hiring,  since  in 
one  case  goods  are  hired,  and  in  the 
other  labour.  But  he  was  making  a 
clat-sification,  not  of  hirings,  but  of  bail- 
ments; and  since  in  cases  of  locatio  rei 
there  is  a  hiring  of  the  thing  bailed,  and 
in  cases  of  locatio  operis  no  hiring  of 
the  thing  bailed,  it  was  impossible  to 
place,  with  any  degree  of  propriety,  two 
sorts  of  bailmi'Ht  under  the  same  class, 
one  of  which  is,  and  the  other  of  which 
is  not,  a  bailment  by  way  of  hiring.  As 
to  the  objection  that  Lord  Holt's  fifth 
class  of  bailments  is  capable  of  another 
subdivision,  there  is  no  doubt  but  tliat  it 
may  be  split,  nor  only  as  Sir  W.  Jones 
suggests,  into  locatio  operis  faciendi, 
where  work  is  to  be  done  upon  the 
goods,  and  locatio  operis  mercium  ve- 
hendarum,  where  they  are  to  be  carried, 
but  into  as  many  different  subdivisions 


COGGS    V.    BERNARD. 


257 


as  there  are  different  modes  of  employ- 
ing' labour  upon  jroods;  and,  in  point  of 
fact,  the  civilians,  in  their  division  of 
hirino's,  enumerated  another  class,  viz. 
locatif)  custodioe,  or  the  hiring-  of  care  to 
be  bestowed  in  guarding  a  thing  bailed, 
which  is  omitted  by  Sir  W.  Jones.  For 
these  reasons,  it  is  submitted  that  Lord 
Holt's  classification  is  the  correct  one, 
r*QQi  ^"^  '^  remains  to  make  a  *few 
L  J  remarksoneachof  the  six  classes 
enumerated  by  him. 

1st.     With    respect    to    Depositum, 
which  it  will  be  recollected  is  a  bail- 
ment without  reward,  in  order  that  the 
bailee  may  keep  the  goods  for  the  bailor, 
the  law  respecting  the  bailee's  responsi- 
bility may  be  sununed  up  in  the  words 
in  which  Lord  Holt  concludes  his  obser- 
vations on  that  head  of  bailment,  viz., 
"if  the  bailee  be  guilty  of  gross  negli- 
gence, he  will  be  chargeable,  but  not 
for  any  ordinary  neglect."     An  import- 
ant modern  case  respecting  deposit  has 
been   already    cited   in  this  note,  viz.. 
Doorman  v.  Jenkins,  2  Ad.  &  Ell.  256, 
where,  as  has  been  stated,  the  question 
whether  there  had  bt-en  gross  negli- 
gence was  left  to  the  jury.     There  are 
some  expressions  in  this  part  of  Lord 
Holt's  judgment,  from  which  a  superfi- 
cial reader  might  infer  that  his  lordship 
thought  that  a  depository  would  alvvayi# 
be  secure,  provided   that  he   kept  the 
goods  deposited  with  as  much  care  as 
his  own;  but,  on  looking  attentively  at 
the  whole  context,  it  appears  that  his 
lordship  considered  the  bailee's  keeping 
the  goods  bailed  as  he  keeps  his  own, 
rather  as  an  argument  against  the  sup- 
position that  gross  negligence  has  been 
commiited,    than    as   any    substantive 
ground   of  discharge.     "  The   keeping 
them  (says  his  lordship)  as  he  kept  his 
own,  is  an  argument  of  his  honesty," 
and  consequently  an  argument  against 
the  supposition  of  ^ross  negligence,  for 
Lord  Holt  considered  gross  negligence 
almost  the  same  thing  with  dishonesty. 
"  If,"  says  he,  "  there  be  such  gross  ne- 
glect, it  is  looked  upon  as  evidence  of 
fraud."    And  it  is  quite  clear,  especially 
from  Doorman  v.  Jenkins,  that  gross 
negligence  may  be  committed  by  a  de- 
positary, although   he    may    have   kept 
the  property  entrusted  to  him  with  as 
much  care  as  his  own;  and  tiiat  if  it  be, 
his   negligence  of  his  own  goods  is  no 
defence.     See  also  Rooth  v.  Wilson,  1 
B.  &.  A.  6L     On  the  other  hand,  it  is 
also  clear  that  a  depositary  is  not  liable 
Vol.  I.— 17 


for  any  thing  short  of  ^ross  negligence; 
and  tiioiigh  Lord  Coke,  in  Soulhcote's 
case,  4  Uep.  S-i,  h.,  1  Inst.  89,  a.  b.,  ex- 
pressed an  opinion  that  a  depositary  is 
responsible  if  the  goods  are  stolen  from 
him,  unless  he  accepts  them  specially  to 
keep  as  his  own,  that  doctrine  has  been 
completely  overthrown  by  Lord  Holt  in 
the  principal  case.  How  far  a  deposi- 
tary may  add  to  his  responsibility  by  in- 
serting special  terms  in  his  promise  to 
his  bailor,  is  a  point  not  by  any  means 
clearly  settled.  See  Kettle  v.  Brotnsall, 
Willes,  118,  and  the  observations  of  Sir 
William  Jones  on  Soulhcote's  case ; 
Jones  on  Bailments,  42,  3;  and  of  Mr. 
J.  Powell  in  the  principal  case;  {and 
see  M'Lean  v.  Rutherford,  8  Missouri, 
109. }  A  depositary  has  no  right  to  use 
the  thing  entrusted  to  him.  Bac.  Ab. 
Bailment,  D. ;  [Clark  v.  Gilbert,  2  N. 
C.  343.]  Where  a  man  finds  goods  be- 
longing to  another,  he  seems  bound, 
after  he  has  taken  them  into  his  posses- 
sion, to  the  same  degree  of  care  with  a 
depositary.  See  Isaac  v.  Clarke,  2 
Bulst.  306,  312;  1  Roll.  125,  30;  Doct. 
&  St.  Di.  2,  c.  38;  sed  vide  BacAbr. 
Bailment,  D. 

2dly.  As  to  Commodatum  or  loan, 
the  responsibility  of  the  bailee  is  much 
more  strictly  enforced  in  this  class  of 
bailments  ;  and  that  with  justice,  for  the 
loan  to  him  is  for  his  own  advantage, — 
not,  as  in  the  case  of  deposit,  for  that  of 
the  bailor.  [Besides,  he  may  justly  be 
considered  as  representing  himself  to 
the  bailor  to  be  a  person  of  competent 
skill  to  take  care  of  the  thing  lent.  See 
Wilson  V.  Brett,  11  M.  &  W.  115,  per 
Parke,  B.]  He  is,  therefore,  bound  to 
use  great  diligence  in  the  protection  of 
the  thing  bailed,  and  will  be  responsible 
even  for  slight  negligence;  nor  must 
he  on  any  account  deviate  from  the  con- 
ditions of  the  loan,  as  in  Bringloe  v. 
Morrico,  1  Mod.  210,  3  Salk,271,  where 
the  loan  of  a  horse  to  the  defendant  to 
ride  was  held  not  to  warrant  him  in 
allowing  his  servants  to  do  so.  [But 
where  a  horse  was  for  sale,  and  the 
agent  of  the  vendor  let  A.  have  the 
horse  for  the  purpose  of  trying  it,  A.  was 
held  justified  in  putting  a  competent 
person  upon  the  horse  to  try  it,  an  autho- 
rity todo  so  being  implied.  Lord  Cainoys 
V.  Scurr,  9  Carr.  &  P.  383  ] 

Srdly.  Locatio  ret.  This,  as  we 
have  seen,  is  where  goods  are  lent  to 
the  bailee  for  hire.  In  such  case.  Lord 
Holt  tells  us  that  the  bailee  is  bounJ  to 


258 


smith's   leading   cases. 


use  the  utmost  care.  This  expression, 
as  Sir  W.  Jones  has  remarked,  appears 
too  strong-,  for  it  would  place  a  hirer 
who  jiays  for  the  use  of  the  goods  on  the 
same  footing-  as  a  borrower;  and  indeed 
Lord  Holt  himself  qualifies  it,  by  citing, 
immediately  after,  a  passage  of  Bracton, 
in  which  the  care  inquired  is  described 
to  be  "  talis  qualis  diligentissimus  pa- 
terfamilias  suis  rebus  adhibet."  Sir 
William  has,  in  an  able  criticism  upon 
this  passage,  shown  that  it  was  copied 
verbatim  from  Justinian,  in  whose  work, 
he  further  proves,  that  it  must  have 
been  used  to  signify,  not  extreme,  but 
ordinary  diligence.  Accordingly,  in 
Dean  v.  Keate,  3  Camp.  4,  the  diligence 
required   from    the   *hirer   of  a 


[*10()J 


horse  was  such  as  a  prudent  man 


would  have  exercised  towards  his  own, 
and,  therefore,  having  himself  prescribed 
to  it,  instead  of  calling  in  a  veterinary 
surgeon,  he  was  held  responsible.  See 
the  notes  to  that  case,  and  Davy  v. 
Chamberlain,  4  Esp.  229;  see  also  Read- 
ing v.  Menham,  1  Moo.  &  Rob.  234; 
and  Longman  v.  Galini,  Abbott  on  Shipp. 
259,  n.,  5th  Ed.  [This  species  of  bail- 
ment is  determined  by  a  wrongful  sale 
of  the  goods,  and  the  owner  may  at  once 
maintain  an  action  of  trover  against  even 
a  bona  fide  purchaser,  Cooper  v.  Willo- 
matt,  1  C.  B.  672.] 

Wily.  Vadium  or  pawn.  In  this  case 
also  the  pawnee  is  bound  to  use  ordinary 
r*inn  1  diligence  in  the  care  *and  safe- 
■-  -I    guard  of  the  pawn,  but  he  is 

not  bound  to  use  more ;  and  therefore, 
if  it  be  lost  notwithstanding  such  dili- 
gence, he  shall  still  resort  to  the  pawnor 
for  hisdebt.  See  Lord  Holt's  judgment 
in  the  text;  Vere  v.  Smith,  1  Vent. 
121;  Anon.  2  Salk.  522.  So,  too,  if 
if  several  things  be  pledged  for  the  same 
debt,  and  one  be  lost  without  default  in 
the  pawnee,  the  residue  are  liable  to 
the  whole  debt.  RatclifFe  v.  Davies, 
Yel.  178;  Bac.  Abr.  Bailment.  B.  If 
the  pawnor  make  default  in  payment  at 
the  stipulated  time,  the  pawnee  has  a 
right  to  sell  the  pledge,  and  this  he 
may  do  of  his  own  accord,  without  any 
previous  application  to  a  court  of  equity. 
See  Pothener  v.  Dawson,  Holt,  385 ; 
Tucker  v.  Wilson,  1  P.  Wms.  201  ; 
Lockwood  V.  Ewer,  9  Mod.  278;  3  Alk. 
303;  or  he  may  sue  the  pawnor  for  his 
debt,  retaining  the  pawn,  for  it  is  a  mere 
collateral  security.  Bac.  Abr.  Bailm. 
B ,  Anon.   12   Mod.  5(34.     If  he  think 


proper  to  sell ;  the  surplus  of  the  pro- 
duce, after  satisfying  the  debt,  belongs 
to   the    pawnor;    while,   on    the   other 
hand,  if  the  pawn  sell  for  less  than  the 
amount  of  the  debt,  the  deficiency  con- 
tinues chargeable  on  the  pawnor.  South 
Sea  Co.  V.  buncombe,  2  Str.  919.   From 
all  this,  it  will  be  seen  that  a  paicn  dif- 
fers, on  the  one  hand,  from  a  lien,  which 
conveys  no  right  to  sell  whatever,  but 
only  a  right  to  retain  until  the  debt  in 
respect  of  which  the  lien  was  created 
has   been   satisfied  ;  and,  on  the  other 
hand,  from  a  mortgage,  which  conveys 
the  entire  property  of  the  thing  mort- 
gaged to  the  mortgagee  conditionally,  so 
that  when  the  condition  is  broken  the 
property  remains  absolutely  in  the  mort- 
gagee; whereas  a  paion  never  conveys 
the  general  property  to  the  pawnee,  but 
only   a   special   property    in  the   thing 
pawned ;  and  the  effect  of  a  default  in 
payment  of  the  debt  by  the  pawnor  is, 
not  to  vest  the  entire  property  of  the 
thing  pledged  in  the  pawnee,  but  to  give 
him  a  power  to  dispose  of  it,  accounting 
for  the  surplus,  which  power,  if  he  ne- 
glect to  use,  the  general  property  of  the 
thing  pawned  continues  ia  the  pawnor, 
who  has  a  right  at  any  time  to  redeem 
it.     Com.  Dig.  Mortgage,  B. ;  Waller 
V.   Smith,  5  B.   »Si,  A.   439;    Kemp  v. 

festbrook,  1  Ves.  278;  Demandray  v. 
jtcalfe,  Prec.  Cha.  420;  2  Vern.  G91; 
Vanderzee  v.  Willis,  3  Bro.  21 ;  Rat- 
clifl^e  V.  Davies,  Yelv.  178.  [There  is  a 
passage  in  the  judgment  of  the  Court  of 
Common  Pleas  in  Clarke  v.  Gilbert,  2 
N.  C.  350,  which  at  first  sight,  seems 
opposed  to  the  doctrine  above  laid  down 
as  to  the  sale  of  a  pledge,  but  which,  on 
consideration  of  the  nature  of  the  article 
pledged  in  that  case,  will  be  found  quite 
consistent  with  the  proposition  that  the 
simple  pledge  of  a  mere  chattel  gives  a 
right  of  sale  on  default.  In  that  case  a 
lease  had  been  pledged  to  a  solicitor  for 
the  amount  of  his  bill  of  costs.  The 
*client  became  bankrupt,  and  r^inA?  -i 
the  solicitor,  with  the  concur-  '-  -' 

rence  of  the  assignees,  sold  the  lease, 
and  received  his  bill  of  costs  out  of  the 
proceeds.  The  commission  was  super- 
seded for  default  of  the  petitioning  credi- 
tor's debt,  and  a  fresh  commission  issued, 
under  which  the  plaintiffs  were  appoint- 
ed assignees.  They  were  held  entitled 
to  recover  against  the  solicitor  the 
amounts  which  he  had  received.  Tindal, 
C.  J.,  in  delivering  judgment  said,  "It 


C0GG8    V.     BERNARD, 


259 


appears  lliat  they  were  part  of  the  pro- 
ceeds arising  from  the  sale  of  a  lease 
beloniring  to  the  bankrupt.     Now  that 
lease  at  the  time  of  such  sale,  was  in 
the   possession   of  the   defendant  as   a 
pledge  or  security  for  the  payment  of 
his  demand  against  the  bankrupt,  being 
either  in  his  possession  as  solicitor,  under 
a  claim  upon  it  for  his  lien  which  the 
law  gives  him,  or  having  been  expressly 
deposited  with  him  as  security  for  his 
demand   according   to  the  evidence  of 
Stevens.     In  cither  case  the  right  and 
power  of  the  defendant  over  the  lease 
was  precisely  the  same,  he  had  the  right 
to  retain  the  lease  in  his  possession  until 
his  demand  was   paid,   and   so  far  by 
means  of  the  possession  of  the  lease  to 
enforce  payment  of  his  demand,  but  he 
had  that  right  only,  he  had  no  right  to 
sell  the  lease  and  pay  himself  his  de- 
mand out  of  the  proceeds.     So  long  as 
the    lease   remained   in  his   possession, 
neitlier  the  bankrupt  nor  his  assignee 
could  retake  it  without  either  payment 
of  the  demand  or  a  tender  and  refusal, 
which  is  equivalent  to  payment.     But  if 
instead  of  keeping  the  thing  pledged  he 
sells  it,  or  enables  any  other  person  to 
sell  it  by  concurring  in  the  sale,  he  is 
guilty  of  a  direct  conversion,  and  makes 
himself  liable  for  the  value  of  the  lease 
in  an  action  of  trover."     It  is  conceived 
that  the  above  passage  is  not  to  be  con- 
sidered as  propounding  generally  that  a 
chattel  pledged  cannot  be  sold  in  default 
of  payment,  and  that  it  must  be  confined 
to  the  case  under  discussion,  of  a  pledge 
of  a  lease  or  other  title  deed  which  gives 
tiie  pledgee  an  equitable  mortgage  upon 
the   land  with  a  certain    known  legal 
remedy  by  sale  under  the  decree  of  a 
Court  of  Equity,  a  remedy  inconsistent 
with  his  parting  with  the   possession  of 
the  deed  only,  for  which,  without  the 


clear- thai  the  *assignee  of  the  r*i()()-,-| 
equity  of  redemption  in  a  thing  '-  -' 

mortgaged  could  have  no  rights  at  law. 
[A  mere  pledge  of  chattels  personal,  is 
therefore  not  properly  speaking  a  mort- 
gage, and  though  in  writing,  need  not 
bear  a  mortgage  stamp.  Harris  v. 
Birch,  9  M.  &  W.  592.]  There  may, 
however,  be  a  mortgage,  properly  speak- 
ing, of  chattels,  which  will  be  subject  to 
the  same  incidents  as  any  other  mort- 
gage. If  the  pawnee,  after  payment  or 
tender,  insist  upon  retaining  the  goods 
pledged,  he  is  a  wrong-doer,  and  be- 
comes liable  to  an  action,  and  charge- 
able with  any  damage  which  may  after- 
wards happen  to  the  pledge,  whether 
with  or  without  his  default.  See  t!ie» 
text.  Lord  Holt's  judgment;  Anon.  2 
Salk.  522 ;  Com.  D.  Mortg.  B. 

A  pawn  being  a  sort  of  bailment  trans- 
fer of  the  possession  of  the  chattel  pledg- 
ed, is  of  the  essence  of  it;  and  if  the 
pawnee  part  with  the  possession,  he  loses 
the  benefit  of  his  security.  Ryal  v.  Rolle, 
1  Atk.  165;  approved  of  in  Reeves  v. 
Capper,  5  Bing.  N.  C.  140,  141.  But  if 
the  pawnee,  after  the  pawn  has  taken 
place,  redeliver  the  chattel  to  the  pawn- 
or for  some  purpose  consistent  with  the 
continuance  of  the  contract  of  pledge, 
the  possession  of  it  by  the  pawnor  is  look- 
ed upon  as  the  possession  of  the  pawnee, 
and  the  security  remains.  Reeves  v. 
Capper,  ibid. 

See,  on  the  subject  of  pawnbrokers,  st. 
39  &  40  G.  3,  c.  99,  28th  July,  1800,  inti- 
tuled An  Act  for  belter  regulating  the 
Businessof  Pawnbrokers  [amended  as  to 
the  hours  of  business  by  9  &  10  Vict.  c. 
98] ;  and  see  Nickesson  v.Trotter,  3  iVlee. 
&L  VVel.  130.  This  act  limits  the  interest 
which  pawnbrokers  may  take  [upon 
loans  not  exceeding  ten  pounds,  leaving 
loans  of  larger  amount  subject  to  the  or- 


knd,  but  little  could  be  obtained,  whilst    dinary  law,see  Pennell  v.  Attenborough, 


great  damage  could  be  inflicted  on  the 
pledgor  by  putting  his  title  deed  in 
peril.]  After  the  debt  has  been  dis- 
charged or  tendered,  it  of  course  be- 
comes the  pawnee's  duty  to  return  the 
pawn.  See  the  text ;  Isaac  v.  Clarke, 
2  Biilst.  306;  Anon.  2  Salk.  522;  B.  N. 
P.  72.  And  if  the  pawnor  have,  as  he 
may  do,  assigned   his   property  in    th 


4  Q,.  B.  868],  and  contams  provisions 
guarding  against  the  facility  of  putting 
away  stolen  goods  through  pawnbrokers. 
At  the  expiration  of  a  year  and  a  day  the 
pledges  may  be  sold,  by  public  auction 
only,  unless  the  pawnor  give  a  notice  to 
the  contrary,  in  which  case  the  sale  must 
be  postponed  for  three  months ;  but  if 
the    pawnbroker    neglect   to   sell,   the 


pledge,  subject  to  the  pawnee's  riglils  pawnor  will,  as  at  common  law,  have  a 

and  special  property,  the  assignee  will  right  to  redeem  at  any  time.    Waller  v. 

have,  it  is  said,  llie  same  right  as  the  Smith,  5  B.  &  A.  439. 

pawnor,  both  in  law  and  equity ;  Kemp  *olhly.    Locatio    operis  /'^"'  r*ioi  I 

V.  VVestbrook,  1  Ves.  278;  [Franklin  v.  endi.    in  this  case,  goods  are  en-  '- 

Neate,  13  M.  &.  \V.  481];  whereas  it  is  trusted  by  the  bailor  to  the  bailee,  to  be 


260 


smith's   leading    cases. 


safely  kept,  or  to  be  carried,  or  to  have 
some  work  done  upon  them,  for  hire  to 
be  paid  to  the  bailee.  Such  is  the  bail- 
ment of  goods  to  a  warehouseman  or 
wharfinger  to  be  taken  care  of,  of  cloth 
to  a  tailor  to  be  made  into  a  garment,  of 
jewels  to  a  goldsmith  to  be  set,  of  a  seal 
to  a  stone-cutter  to  be  engraved,  &c.  In 
such  cases  the  rule  is,  that  the  bailee  is 
bound  not  only  to  perform  his  contract 
with  regard  to  the  work  to  be  done,  but 
also  to  use  ordinary  diligence  in  the 
r*im  1^^'"^  ^"^  preservation  of  the 
•■  J  property    ^entrusted    to    him. 

Vide  Best  v.  Yate,  1  Vent.  268.  Thus, 
if  a  watch  be  left  with  a  watchmaker  for 
repairs,  he  must  use  ordinary  care  about 
its  safeguard.  If  he  use  less,  and  the 
watch  be  lost,  he  is  chargeable  with  its 
value.  Clarke  v.  Earnshaw,  1  Gow,  30, 
[So  a  wharfinger  who  takes  lipon  him 
the  mooring  and  stationing  of  the  vessels 
at  his  wharf  is  liable  for  any  accident 
occasioned  by  his  negligent  mooring. 
Wood  v.  Curling,  15  M.  &  W.  626;  16 
M.  &  W.  628.]  So  if  cattle  be  agisted, 
and  the  agister  leave  the  gates  of  his 
field  open,  he  uses  less  than  ordinary 
diligence ;  and  if  the  cattle  stray  out  and 
are  stolen,  he  must  make  good  the  loss. 
Broadwater  v.  Boll,  Holt,  541.  If  an  un- 
common or  unexpected  danger  arise,  he 
must  use  eiforts  proportioned  to  the  emer- 
gency to  ward  it  otf.  In  Leek  v.  Maes- 
taer,  1  Camp.  138,  the  defendant  was 
the  proprietor  of  a  dry-dock,  the  gates  of 
which  were  burst  open  by  an  uncommon- 
ly high  tide,  and  the  plaintid's  ship, 
which  was  lying  there,  forced  against 
another  ship  and  injured.  It  was  sworn, 
that  with  a  sufficient  number  of  hands 
the  gates  might  have  been  shored  up  in 
time  so  as  to  bear  the  pressure  of  the 
water;  and,  though  the  defendant  offer- 
ed to  prove  that  they  were  in  a  perfectly 
sound  state.  Lord  Ellenborough  held  that 
it  was  his  duty  to  have  had  a  sufficient 
number  of  men  in  the  dock  to  take  mea- 
sures of  precaution  when  the  danger  was 
approaching,  and  that  he  was  clearly  an- 
swerable tor  the  effects  of  the  deficiency. 
So  a  warehouseman,  who  is  a  bailee  of 
this  description,  does  not  use  ordinary 
diligence  about  the  goods  entrusted  to 
him,  if  he  have  not  his  tackle  in  proper 
order  to  crane  them  into  tlie  wareliouse, 
whereby  they  fall  and  are  injured.  Tho- 
mas V.  Day,  4  Esp.  262.  But  he  is  not 
liable  for  loss  by  a  mere  accident,  not 
resulting  from  his  negligence.  Garside 
V.  Trent  iVav.  Co.  4  T.  R.  5bl ;  see  Hyde 


V.  Do.5T.  R.  389;  In  re  Webb,  8  To unt. 
443;  Vere  v.  Smith,  1  Vent.  121.  [Yet, 
in  case  of  a  loss  the  onus  is  on  the  bailee 
to  prove  that  it  occurred  through  no  want 
of  ordinary  care  on  his  part,  Mackenzie 
V.  Cox,  9  Car.  &  P.  632.]  There  are, 
however,  two  cases  in  which  the  liability 
of  bailees  falling  within  this  class  is  ex- 
tended very  much  beyond  the  limit  just 
pointed  out,  viz.  where  the  bailee  is  an 
innkeeper  or  a  common  carrier.  The 
extent  of  the  innkeeper's  liability  has 
already  been  discussed  in  the  notes  to 
Calye's  case,  the  leading  auihorily  on 
that  subject.  A  few  words  shall  be  now 
devoted  to  that  of  the  carrier. 

A  common  carrier  is  a  person  who  un- 
dertakes to  transport  from  place  to  place, 
for  hire,  the  goods  of  such  pprsons  as 
think  fit  to  employ  him.  Such  is  a 
proprietor  of  wagons,  barges,  lighters, 
merchant-ships,  or  other  instruments  for 
the  public  conveyance  of  goods.  See  the 
text;  Forward  v.  Pittard,  *1  r:>:if»iAi 
T.  R.  27;  Mors  V.  Slew,  2  Lev.  L  ^"^° -I 
69:  1  Vent.  190,  238,  commented  on  in 
the  text  by  Lord  Holt;  Rich  v.  Kneeland, 
Cro.  Jac.  330;  iMaving  v.  Todd,  1  Stark. 
72;  Brook  v.  Pickwick,  1  Bing.  218; 
{  Benett  v.  Peninsular  Steamboat  Co.  6  C. 
13.  775. }  A  person  who  conveys  passen- 
gers only  is  not  a  common  earner.  Aston 
V.  Heaven,  2  Esp.  533;  Christie  v. 
Griggs,  2  (vamp.  79;  see  Sharpe  v.  Grey, 
9,  Bing.  460.  [But  see  Brotherlon  v. 
VVood,  3  B.  it  B.  54,  and  Carpue  v.  Lon- 
don and  Brighton  Railway  Company,  5 
Q.  B.  747.  As  to  the  liability  of  a  cab 
proprietor  for  passenger's  luggage,  see 
Ross  v.  Hill,  2  C.  B.  877.]  Nor  is  a 
town  carman  so,  who  does  not  ply  from 
one  fixed  terminus  to  another,  but  under- 
takes casual  jobs.  Brind  v.  Dile,  2  M. 
&  Rob.  80.  A  railway  company  are 
common  carriers  unless  exempt  by  some 
special  provision.  Palmer  v.  Grand  Junc- 
tion Canal  Co.,  4  M.  «fc  W.  749.  [Pick- 
ford  V.  Grand  Junction  Railway  Com- 
pany, 10  M.  &.  W.  .399;  Parker  v.  Great 
Western  Railway  Company,  7  Scott,  N. 
R.  835.]  The  extraordinary  liabilities 
of  a  carrier  were  imposed  upon  him  in 
consequence  of  the  public  nature  of  his 
employment,  which  rendered  his  good 
conduct  a  matter  of  importance  to  the 
whole  community.  He  is  bound  to  con- 
vey the  goods  of  any  person  offering  to 
pay  his  hire,  unless  iiis  carriage  be  al- 
ready full,  or  the  risk  sought  to  be  im- 
posed upon  him  extraordinary,  or  unless 
the  goods  be  of  a  sort  which  he  cannot 


COGGS    V.     BERNARD. 


261 


convey,  or  is  not  in  tlie  habit  of  convey- 
ing. J.ickson  V.  Rogers,  2  Show.  327;  Ri- 
ley v.  Home,  5  Bing.  217;  Lane  v.  Cotton, 
1  Lord  Hay.  64H;  Edwards  v.  Sherratt, 
1  E.u<t,  6U4 ;  Batson  v.   Donovan,   I  B. 

6  A.  32.  [And  in  a  declaration  against 
him  for  refusing  to  cnrry,  it  is  enough  to 
aver  readiness  and  willingness  to  pay  the 
hire  without  a  formal  tender,  Pickford  v. 
Grand  Junction  Railway  Company,  8 
M.  &,  \V.  373;  Wyld  v.  Pickford,  8  M. 
&.  VV.  443.  The  hire  charged  must  be 
no  more  than  a  reasonable  remuneration 
to  the  carrier,  and,  consequently,  not 
more  to  one  than  to  another,  for  the  same 
service.  Pickford  v.  Grand  Junction  Rail- 
way Company,  10  M.  &  W.  399;  Par- 
ker v.  Great  Western  Railway  Company, 

7  Scott,  N.  R.  835.  As  a  general  rule, 
"if  anything  is  delivered  to  a  person  to 
be  carried,  it  is  the  duty  of  the  person 
receiving  it  to  ask  such  questions  as  may 
be  necessary  ;  if  he  ask  no  questions,  and 
there  be  no  fraud  to  give  the  case  a  false 
complexion,  on  the  delivery  of  the  parcel, 
he  is  bound  to  carry  the  parcel  as  it  is," 
per  Parke,  B.,  Walker  v.  Jackson,  10  M. 
&.  W.  169,  where  it  was  held  that  the 
nnconununicated  fact  that  a  carriage 
contained  valuable  jewellery  and  watch- 
es, did  not  exonerate  the  owners  of  a 
ferry  over  which  it  was  carried,  from 
liability  for  a  loss,  which  was  alleged  to 
have  been  partly  occasioned  by  the 
weight.]  While  the  goods  are  in  his 
custody,  he  is  bound  to  the  utmost  care 
f  *1()1    1°^  them;  *and,    unlike   other 

-'  bailees  falling  under  the  same 
class,  he  is,  at  common  law,  responsible 
for  every  injury  sustained  by  them  occa- 
r*iQo-i  sioned  by  any  means  ^whatever, 
"-'  except  only  the  act  of  God  or  the 
King's  enemies.  1  Inst.  89;  Dale  v. 
Hall,  1  Wils.  2^1 ;  Covington  v.  Willan, 
Gow,  115;  seeDavies  v.  Garrett,  6  Bing. 
716.  [Bourne  v.  Gattliffe,  8  Scott,  N.  R. 
6U4,  11  CI.  &  Fin.  4-5.]  However,  when 
the  increase  of  personal  property  through- 
out the  kingdom,  and  the  frequency  with 
which  articles  of  great  value  and  small 
bulk  were  transmitted  from  one  place  to 
another,  had  begun  to  render  this  degree 
of  liability  intolerably  dangerous,  car- 
riers, on  their  patt,  began  to  insist  that 
their  employers  should,  in  such  cases, 
either  diminish  it,  by  entering  into  spe- 
cial contracts  to  liiat  effect  upon  deposit- 
ing their  goods  for  conveyance,  or  should 
pay  a  rate  of  remuneration  proportiona- 
ble lo  the  risk  undertaken.  To  this  end, 
they  posted  up  and  distributed  written 


or  printed  notices,  to  the  effect  that  they 
would  not  be  accountable  for  property  of 
more  tlian  a  specified  value,  unless  the 
owner  had  insured  and  paid  an  addition- 
al premium  for  it.  If  this  notice  was  not 
communicated  to  the  employer,  it  was 
of  course  ineffectual.  Keh  v.  Willan, 
6  M.  &  S.  15U.  But  if  it  could  be  brought 
home  to  his  knowledge,  it  was  looked 
upon  as  incorporated  into  his  agreement 
with  the  carrier,  and  he  became  bound 
by  its  contents.  May  hew  v.  Eames,  6 
B.  &  C.  601 ;  Rowley  v.  Home,  3  Bing. 
2;  Nicholson  v.  Willan,  5  East,  5o7. 
Still  the  carrier,  notwithstanding  his 
protection  by  the  notice,  was  bound  to 
avoid  gross  negligence  ;  and  if  the  pro- 
perty was  lost  or  injured  by  such  neg- 
ligence, he  was  responsible.  Smith  v. 
Home,  2  B.  M.  18;  Dufl^v.  Budd,  3  B. 
&  B.  177  ;  Birkett  v.  Willan,  2  B.  &  A. 
356;  Garnett  v.  Willan,  5  B.  &.  A.  53; 
Sleat  v.  Fagg,  ib.  542 ;  Wright  v.  Snell, 
ib.  350;  [Wyld  v.  Pickford,  8  M.  &  W. 
443] ;  see  Owen  v.  Burnett,  4  Tyrwh, 
143;  [Hinton  v.  Dibbin,  2  Q.  B.  646]. 
Unless,  indeed,  the  employer  had  lulled 
his  vigilance  by  an  undue  concealment 
of  the  nature  of  the  trust  imposed  on 
him,  for  such  conduct  would  have  exo- 
nerated the  carrier,  even  had  he  givea 
no  notice.  Batson  v.  Donovan,  4  B.  &-  A. 
21 ;  Miles  v.  Cattle,  6  Bing.  743 ;  see 
4  Burr.  230l ;  B.  N.  P.  71  ;  [and  as  to 
the  mode  of  pleading  such  a  defence,  see 
Webb  V.  Page,  6  Scott,  N.  R.  951,  which 
shews  that  it  cannot  be  raised  under  the 
plea  of  not  guilty]  Very  many  ques- 
tions, as  was  naturally  to  be  expected, 
having  arisen  upon  the  construction  of 
these  notices,  and  whether  they  had 
come  to  the  customer's  knowledge,  the 
legislature  has  thought  proper  to  step 
in,  and  by  several  enactments  to  regu- 
late the  responsibility  of  carriers  by 
land  and  water.  The  land-carrier's  act 
is  Stat.  11  Geo.  4  <St  1  Will.  4,  cap. 
68,  which  enacts  that  no  common  car- 
rier by  land  for  hire,  shall  be  liable  for 
loss  or  injury  to  any  gold  or  silver  coin, 
gold  or  silver  in  a  manufactured  or  un- 
manufactured state,  precious  stones,  jew- 
ellery, watches,  clocks,  time-pieces,  trin- 
kets, [see,  Davey  v.  Mason,  1  Car.  &  M. 
45],  bills,  banknotes,  orders,  notes,  or 
securities  for  payment  of  money,  stamps, 
maps,  writings,  title  deeds,  paintings,  en- 
gravings, pictures,  gold  or  silver  plate, 
or  plated  article,  glass  (see  Owen  v.  Bur- 
nett, 4  Tyrwh.  143),  china,  silks — man- 
ufactured or  unmanufactured — wrought- 


2G2 


smith's   leading    cases. 


up  or  not  wroiight-iip  with  other  mato- 
TJals,  [see  Davcy  v.  Mason,  1  Car.  &  M. 
45,1  ^"rs  (see  Mayhew  v.  Nelson,  6  C. 
&.  P.  .59,)  or  lace,  contained  in  any  par- 
cel, when  the  value  exceeds  the  sum  of 
lOL,  unless  at  the  time  of  delivery,  the 
value  and  nature  of  the  article  shall  have 
been  declared,  and  the  increased  charges, 
or  an  engagement  to  pay  the  same,  ac- 
cepted by  the  person  receiving  the  par- 
cel. By  sect.  2,  the  carrier  may  demand 
for  such  parcels  an  increased  rate  of 
charge,  which  is  to  be  notified  by  a  no- 
tice affixed  in  his  office,  and  customers 
are  to  be  bound  thereby,  without  further 
proof  of  the  notice  having  come  to  their 
knowledge.  Carriers  who  omit  to  affix 
the  notice  are,  by  sect.  3,  precluded  from 
the  benefit  of  this  act,  and,  by  sect.  4, 
they  can  no  longer  by  a  notice  limit  their 
responsibility  in  respect  of  articles  not 
within  the  act.  Special  contracts,  how- 
ever, between  the  carrier  and  his  em- 
ployer are  still  allowed,  and  are  not 
affected  by  this  statute.  [See  VVyld  v, 
Pickford,  8  M.  &  \V.  443.]  By  sect.  5, 
the  act  is  not  to  protect  carriers  from 
their  liability  to  answer  for  loss  occasion- 
ed by  the  felonious  acts  of  their  own  ser- 
vants, nor  is  it  to  protect  the  servant 
from  answering  for  his  own  neglect  or 
misconduct.  And  it  has  been  held  that, 
notwithstanding  this  statute,  the  carrier 
is  still  answerable  for  gross  negligence 
on  his  part,  which  has  occasioned  a  loss 
of  property  such  as  the  act  directs  to  be 
insured,  even  although  the  owner  has 
neglected  to  insure  it ;  for  the  protec- 
tion given  to  the  carrier  by  the  act  is 
r*in'^l  ^'^^^^tituted  for  the  ^protection 
'-  '  -'  which  he  formerly  derived  from 
his  own  notice,  and  the  former,  therefore, 
it  has  been  supposed]  will  not  now  protect 
him,  in  a  case  in  which  the  latter  would 
not  have  been  allowed  to  do  so,  in  con- 
sequence of  his  misconduct.  Owen  v. 
Burnett,  4  Tyrwh.  142.  [But  the  Court 
of  Queen's  Bench  has  lately  decided 
that,  in  a  case  within  the  carriers'  act, 
the  carrier  is  not  liable  for  a  loss  by  his 
servant  of  the  articles  mentioned  in  the 
statute,  even  though  it  may  have  been 
occasioned  by  gross  negligence  not 
amnunling  to  a  misfeasance.  Hinlon  v. 
Dibbin,  2  Q.  B.  646,  where  the  general 
subject  is  discussed  in  a  most  elaborate 
judgment.]  {See  Machu  v.  Railway 
Co.  2  Exch.  415. } 

[*}0'\  1        *With   respect    to    carriers 
■-  ■'by  water,  besides  the  exemp- 

tions for  which  they  stipulate  in  their 


charter-parties  and  bills  of  lading,  (which 
latter  always  contain  a  clause  discharg- 
ing them  from  liability  for  losses  occa- 
sioned by  "  the  act  of  God,  the  King's 
enemies,  fire,  and  all  and  every  other 
dangers  and  accidents  of  the  seas,  rivers, 
and  navigation,  of  what  nature  and  kind 
soever ;"  the  first  two  of  which  exemp- 
tions they  indeed  enjoyed  at  common  law, 
and  that  from  loss  by  fire  under  26  Geo. 
3,  c.  86,  s,  2,)  they  are  further  protected 
by  the  last-mentioned  statute  from  mak- 
ing good  loss  or  damage  to  any  gold,  sil- 
ver, diamonds,  watches,  jewels,  or  pre- 
cious stones,  sustained  by  any  robbery, 
embezzlement,  making  away  or  secret- 
ing thereof,  unless  the  owner  or  shipper 
has,  at  the  time  of  shipping,  declared  the 
nature  and  value  thereof  in  writing.  6 
Geo.  4,  c.  155,  s.  53,  exempts  them  from 
liability  from  damage  arising  from  the 
want  of  a  duly  qualified  pilot,  unless  in- 
curred by  their  own  refusal  or  neglect  to 
take  one  on  board  ;  and  sect.  .55,  from  lia- 
bility for  loss  incurred  through  the  de- 
fault or  incompetency  of  a  licensed  pilot. 
Where  their  common  law  liability  re- 
mains, it  is  much  narrowed  by  the  fol- 
lowing acts,  viz.  7  Geo.  2,  c.  1.5,  which 
exempts  them  from  making  good  losses 
incurred  by  the  misconduct  of  the  master 
and  mariners,  without  their  privity,  to  a 
greater  extent  than  the  value  of  the  ship 
and  freight  (see  Sutton  v.  Mitchell,  1  T. 
R.  18)  [Brown  v.  Wilkinson,  15  M.  & 
W.  391] ;  26  Geo.  3,  cap.  86,  sec.  1, 
which  extends  the  above  enactment  to 
all  cases  of  loss  by  robbery  by  v;hom- 
Eoever  committed,  and  53  Geo.  3,  cap. 
159,  which  extends  it  to  all  cases  of  loss 
occasioned  without  their  default  or  pri- 
vity ;  but  this  act  does  not  extend  to 
vessels  used  solely  in  rivers  or  inland 
navigations,  nor  to  any  ship  not  dul}' 
registered  according  to  law;  nor  do  any 
of  the  acts  extend  to  lighters  and  gabbets. 
Hunter  v.  M'Gown,  1  Bligh,  573.  ft 
should  also  be  observed,  that  the  benefit 
of  the  three  last-mentioned  acts  extends 
to  owners  only,  not  to  masters,  and  that 
the  last  contains  an  express  clause 
against  relieving  the  master,  though  he 
may  happen  also  to  be  a  part-owner. 
See  Wilson  v.  Dickson,  2  B.  &  A.  2. 

Where  goods  consigned  to  a  vendee 
are  lost  through  the  default  of  the  car- 
rier, the  consignee  is  the  proper  person 
to  sue,  {if  the  property  in  the  goods  has 
passed  to  him,}  for  the  consignor  was  his 
agent  to  retain  the  carrier.  Dawes  v. 
Peck,  8  T.  R.  330 ;  Dutton  v.  Solomon- 


COGGS     V.    BERNARD. 


263 


?on,  3  B.  &P.  582;  Kin?  v.  Meretlith,  2 
Camp.  639;  Brown  v.  Hodgson,  lb.  86. 
But  it  is  otherwise  where  the  goods  were 
sent  merely  for  approval,  Swain  v.  Shep- 
herd, 1  M.  &-  Rdb.  224,  or  the  consignee 
is  the  agent  of  the  consignor,  Sargent  v. 
Morris,  3  B.  «Sj.  A.  277,  or  the  carrier  has 
r*in'V  1  contracted  to  be  liable  to  the 
'■  J  *consignor  in  consideration  of 

the  latter's  becoming  responsible  for  the 
price  of  the  carriage;  Moore  v.  Wilson, 
1  T.  R.  659;  Davis  v.  James,  5  Burr. 
2680 ;  [or  where  the  property  in  the  goods 
has  not  yet  passed  to  the  vendee,  as,  for 
instance,  when  there  is  no  evidence  of  a 
contract  sufficient  to  satisfy  the. statute 
of  Frauds,  and  the  carrier  is  not  of  the 
vendee's  selection,  Coats  v.  Chaplin,  2 
Q.  B.  483;  Norman  v.  Phillips,  14  M. 
&.  W.  277 ;  or,  to  speak  generally,  where 
the  carrier  is  employed  by  the  consignor, 
and  the  goods  are  at  his  risk.  Dunlop 
V.  Lambert,  6  CI.  &  Fin.  GOO  ]  See 
Freeman  v.  Birch,  1  Nev.  &  M.  420;  6 
Q.  B.  492,  n.  S.  C. 

In  the  case  of  an  action  brought 
against  a  carrier,  it  is  sufficient  prima 
facie  evidence  of  a  loss  by  his  negligence 
to  show  that  the  goods  never  reached  the 
consignee,  [or  a  short  delivery,  Havvkes 
V.  Smith,  Car.  &  M.  72,  Rolfe,  B.]  But 
where  they  are  bailed  to  a  booking-office 
keeper  to  be  delivered  to  a  carrier,  the 
plaintiff  must  show  by  direct  evidence, 
that  they  were  not  delivered  to  one. 
Gilbart  v.  Dale,  5  A.  &  E.  ,543 ;  Griffith 
V.  Lee,  1  C.  &  P.  110.  Wiih  regard  to 
the  mode  of  declaring  against  a  carrier, 
formerly,  the  practice  was  to  set  out  the 
custom  of  the  realm;  that  has  been  dis- 
continued, because  the  custom  of  the 
realm  being  the  law  of  the  realm,  the 
courts  take  notice  of  it.  Afterwards  the 
practice  became  to  state  the  defendants 
to  be  common  carriers  for  hire,  tolidem 
verbis;  that  was,  however,  departed 
from  to  some  extent  in  Brotherton  v. 
Wood,  3  B.  &  B.  58,  and  still  more  in 
Pozzi  v.  Shipton,  8  A.  »St  E.  974,  where 
a  declaration  stating  that  the  plaintiff 
delivered  and  that  the  defendant  accept- 
ed the  goods  in  question,  to  be  carried 
for  reward  from  A.  to  B.,  was  held  suffi- 
ciently upon  the  custom  of  the  realm  to 
warrant  a  verdict  against  one  of  two  de- 
fendants, upon  evidence  of  his  being  a 
common  carrier.  The  court,  however, 
doubted  whether  it  would  have  been 
good  on  special  demurrer.  [If  to  such  a 
•  declaration  the  defendant  pleads  an  ac- 
ceptance  of  the   goods  on  the   special 


terms  of  a  carrier's  notice,  the  plaintiff, 
if  he  means  to  rely  upon  gross  negli- 
gence as  rendering  the  defendants  liable 
notwithstanding  the  notice,  must  reply 
or  new  assign  such  negligence.  Wyld 
V.  Pickford,  8  M.  &  W.  443.  It  is  the 
duty  of  a  carrier  not  only  to  carry  safely, 
but  also,  if  no  time  be  stipulated,  to  car- 
ry within  a  reasonable  time,  and  a  breach 
of  that  duty  may  be  proved  under  a  de- 
claration alleging  the  lapse  of  a  reason- 
able time,  and  that  the  carrier  has  not 
delivered.  Raphael  v.  Pickford,  5  Man. 
&Gr.  551,6  Sc.N.  R.  473. 

Questions  have  arisen  as  to  the  time 
during  which  the  liability  of  the  carrier 
continues,  and  there  is  sometimes  consi- 
derable difficulty  in  determining  the  pe- 
riod at  which  he  ceases  to  hold  the  goods 
in  his  capacity  of  carrier,  though  retain- 
ing *the  control  or  possession  r^-irjq  -i 
of  them.  It  ia  for  the  jury  (when  '-  '^  ^ 

there  is  no  written  contract)  to  determine 
the  extent  of  the  agreed  transit,  as,  for 
instance,  in  the  case  of  goods  carried 
across  a  ferry,  it  is  for  the  jury  to  deter- 
mine from  evidenceof  the  practice  at  the 
ferry  whether  the  owners  of  the  ferry 
have  undertaken  to  carry  goods  up  a 
slip,  or  only  to  land  them  on  the  shore. 
See  Walker  v.  Jackson,  10  M.  &  W. 
161. 

{Where  a  railway  company  employs 
porters,  at  the  station,  to  carry  luggage 
out  to  the  hackney-carriages,  and  a  por- 
ter accordingly  undertakes  to  carry  out 
a  passenger's  luggage  to  the  carriage, 
the  liability  of  the  company  as  common 
carriers  continues  until  the  luggage  is 
placed  in  the  hackney-carriage;  Rich- 
ards v.  Railway  Co.  7  C.  B.  839.} 

When  the  goods  have  arrived  at  the 
end  of  the  transit,  it  seems  that  the  car- 
rier is  bound  to  keep  them  a  reasonable 
time  at  his  own  risk  for  the  owner,  and  it 
would  seem  that  during  the  period  for 
which  he  keeps  them  under  an  obliga- 
tion to  do  so,  springing  out  of  his  receipt 
of  them  as  a  carrier,  he  is  subject  to  the 
same  liability  as  during  their  transit. 
See  Hyde  v.  Trent  Navigation  Compa- 
ny, 5  T.  R.  389.  After  that  period  his 
extraordinary  liability  as  a  common  car- 
rier is,  it  would  seem,  at  an  end,  and  he 
remains  liable  only  to  the  same  extent 
as  ordinary  depositees.  See  per  Lord 
Abinger,  C.  B.,  Cairns  v.  Robins,  8  M. 
&  W.  2.58. 

In  Bourne  v.  Gatliff,  4  N.  C.  314,  5 
Scott,  667,  3  Scott,  N.  R.  1,  3  Man.  & 
Gr.643,  8  Scott,  N.  R.  604,  11  Clark  «Si 


264 


SMITHS     LEADING     CASES. 


Fin.  45,  the  duty  of  a  carrier  by  sea  was 
much  considered.  It  was  there  holden 
by  the  Courtsof  Common  Pleas  and  Ex- 
chequer Chamber,  and  by  the  House  of 
Lords,  that  in  the  absence  of  any  course 
of  dealing-  or  usage  of  the  port  to  justify 
him',  a  carrier  by  sea  under  a  bill  of  lad- 
ing of  goods  to  be  delivered  "at  the  Port 
of  London,  (all  and  every  the  dangers  of 
the  sea,  &c.,  excepted,)  unto  Mr.  Samuel 
Gatlitf  or  assigns,  on  paying  for  the  said 
goods  freight,"  &c.,  was  not  entitled  im- 
mediately on  the  arrival  of  the  vessel, 
and  without  notice  to  the  owner,  to  land 
the  goods ;  and  that,  having  so  landed 
them  on  a  wharf,  where,  before  coming 
to  the  hands  of  the  owner,  they  were  de- 
stroyed by  accidental  fire,  the  carrier 
was  responsible  for  their  loss.  In  the 
Bame  case,  upon  a  plea  to  the  second 
count,  a  question  arose  as  to  the  liability 
of  a  carrier  by  sea,  who,  for  an  additional 
hire,  undertakes,  after  the  arrival  of  the 
goods,  to  take  care  of  them  at  the  wharf 
where  they  are  landed,  and  to  convey 
them  within  a  reasonable  time  to  the 
place  of  business  of  the  customer.  The 
Court  of  (Common  Pleas  held  that  he  was 
liable  for  a  loss  of  the  goods  by  acciden- 
tal fire  whilst  on  the  wharf,  there  being 
no  ground  for  supposing  him  to  be  clothed 
with  one  degree  of  responsibility  whilst 
taking  care  of  the  goods  at  the  wharf, 
and  another  and  different  degree  whilst 
carrying  the  goods  from  the  wharf,  inas- 
much as  both  these  duties  formed  part  of 
the  san:e  express  contract,  and  were 
paid  fjr  by  the  same  reward;  and  that 
Court  referred  to  Hyde  v.  Trent  Naviga- 
tion Company  as  an  authority  for  their 

r*l()3(/l  J"*^S"^^n'^-  ^n  *'^he  Exchequer 
*-  '  -'  Chamber  that  part  of  the  judg- 
ment was  reversed  on  the  ground  that 
the  second  count  did  not  state  an  em- 
ployment of  the  defendants  as  common 
carriers,  a  point  not  noticed  in  the  Com- 
mon Pleas,  and  the  principle  acted  upon 
by  thnt  Court  is  therefore,  perhaps,  un- 
touched by  the  reversal. 

In  Cairns  v.  Robins,  8  M.  &  W.  2.58, 
goods  were  sent  by  a  carrier,  who  deli- 
vered them  to  his  customer,  accompa- 
nied by  a  printed  bill,  which  stated  that 
"any  goods  that  shall  have  remained 
three  months  in  the  warehouse  without 
beinir  claimed,  or  on  account  of  the  non- 
payment of  the  charges  thereon,  will  be 
sold  to  defray  the  carriage  and  other 
charges  thereon,  or  the  general  lien,  as 
the  case  may  be,  together  with  ware- 
house rents  and  expenses."     The  cus- 


tomer sent  them  back  to  the  carrier's 
warehouse  to  await  his  orders.  They 
remained  there  more  than  a  year,  and 
then  were  lost.  The  customer  brought 
an  action  treating  the  carriers  as  bailees 
for  reward,  and  a  verdict  found  for  the 
plaintiff  was  upheld  by  the  Court  of  Ex- 
chequer on  the  ground  stated  by  Alder- 
son,  B.,  in  the  course  of  his  judgment, 
that  there  was  evidence  from  whence 
the  jury  might  reasonably  find,  that  in 
consideration  that  the  parties  whose 
goods  were  carried  would  pay  a  certain 
sum,  the  defendants  would  not  only 
carry  them,  but  would  warehouse  them 
for  three  months,  the  compensation  so 
paid  being  a  compensation  not  only  for 
carrying,  but  for  wareliouse-rent  also.] 

The  sixth  and  last  class  of  bailments 
is  (according  to  Lord  Holtl  mondalum, 
or  a  delivery  of  goods  to  somebody  who 
is  to  carry  them,  or  do  something  about 
them,  gratis.  And  this  might  have 
been  classed  under  the  same  head  with 
deposilitm.  For  as  the  keeping,  carry- 
ing, and  wnrkirig  upon  goods  for  hire 
are  all  included,  both  by  Lord  Holt  and 
Sir  VV.  Jones,  under  the  same  head, 
there  seems  no  good  reason  why  the 
keeping,  carrying,  and  working  vpon 
them  gratuitously  should  not  have  been 
so  likewise.  Certain  it  is,  that  the  lia- 
bilities of  the  depositary  and  of  the 
mandatary  are  precisely  the  same;  both 
(in  the  absence,  at  least,  of  a  contract 
in  special  terms)  are  bound  to  slight 
diligence,  and  to  slight  diligence  only, 
and  liable  for  nothing  short  of  ^ro.ss 
negligence,  the  reason  in  each  case 
being  the  same,  namely,  that  neither  is 
to  receive  any  reward  for  his  services. 
Accordingly,  whenever  the  extent  of  a 
mandatary's  liability  is  discussed  we  find 
the  cases  respecting  that  of  depositaries 
cited,  and  relied  upon,  and  so  vice  versa. 
The  cases  of  Beauchamp  v.  Powley,  1 
M.  &  Hob.  38;  Shiells  v.  Blackburne, 
1  H.  Bl.  1.58;  and  Dartnall  v.  Howard, 
4  B.  &.  C.  315,  the  facts  of  which  are 
respectively  stated  at  the  commence- 
ment of  this  note,  were  decisions  rf:in_t-] 
*on  the  responsibility  of  manda-  '-  ^ 
taries,  and  from  those,  as  well  as  from 
the  general  principle,  it  appears  that 
such  bailees  are  liable  fortress  negli- 
gence, and  for  that  only. 

\_.\    gratuitous    agent    is,    however, 
bound  to  use  such  skill  as  he  possesses; 
for  instance,  a  person  who  rides  a  horse 
gratuitously  at   the  owner's  request  for  ly 
the   purpose  of  showing  him  tor  sale,  if 


coaas  V.  Bernard.                             265 

proved  to  be  a   person   skilled    in  the  bailor  alone:  this  includes  the  cases  of 

manao'ement  of  horses,  is  held   equally  mandataries  and  deposits,  and   in  this 

liable  with   a   borrower  for   injury  sus-  the  bailee  is  liable  only  for  ^ross  ne^Zi- 

tained   by  the   horse  whilst    ridden    by  gence.     The  second  is,  where   the  bail- 

him.     Wilson  v.   Brett,    11   M.   &,  VV.  ment  is  for  the    benefit  of  the  bailee 

113.]  alone;  this  comprises  Zocns,  and  in  this 

From  the  above  cursory  view  of  the  class  the  bailee  is  bound    to  the  very 

law  of  bailments,  it  will  be  seen  that,  strictest  diligence.    The  third  is,  where 

besides  the  six  classes,  enumerated  by  the  bailment  is  for  the  benefit  both  of 

Lord   Holt,  bailees  may  be  distributed  bailor  and  bailee  :   this  includes  locatio 

into  three  general  classes  varying  from  rei,  vadium  and  locatio  opt^ris,  and    in 

one  another  in  their  degrees  of  respon-  this  class  an  ordinary  and  average  de- 

sibility.     The  first  of  these  is,  where  gree  o/(/tZJg^ertce  is  sufficient  to  exempt 

the  bailment  is  for  the  benefit  of  the  the  bailee  from  responsibility. 


In  the  cominon  law,  the  only  sure  way  of  ascertaining  legal  obligations, 
and  the  most  convenient  method  of  arranging  them,  is  by  considering  the 
remedies  by  which  the  obligations  are  enforced.  Rights  and  duties,  so 
called,  existing  beyond  the  limits  of  legal  remedy,  may  be  matters  of 
enlightened  curiosity,  and  moral  or  metaphysical  speculation,  but  are  no 
part  of  the  common  law. 

Most  of  the  classes  of  persons  mentioned  in  the  preceding  case  and  note, 
may  be  comprehended  under  the  distinction  of  ordinary  paid  ayents  and 
unpaid  agents:  and  as  the  actions  by  which  their  liability  is  enforced,  are 
case,  trover,  and  assumpsit,  there  can  be  no  difficulty  in  determining  the 
ground  and  extent  of  their  liabilities. 

But,  besides  these,  there  are  at  least  three  classes  of  persons,  upon  whom 
the  common  law  has  imposed  a  peculiar  responsibility;  and  has  allowed  a 
special  writ  for  the  enforcement  of  it.  It  differs  from  the  liability  of  the 
two  first-mentioned  classes,  in  this ;  that,  whereas  they  are  liable  only  for 
neligence,  or  want  of  diligence,  this  class  is  made  responsible,  as  a  kind  of 
insurers,  for  damage  arising  wholly  by  the  act  of  others,  or  by  inevitable 
accident;  by  any  cause,  in  short,  except  the  act  of  God.  Such  is  the  lia- 
bility at  common  law,  of  a  master  of  a  house^  for  damage  done  to  his  neigh- 
bour's property,  by  a  fire  arising  in  his  house,  though  occasioned  by  the 
negligpnce  of  others,  if  they  have  entered  the  house  with  his  consent  or 
knowledge :  of  an  innkeeper,  for  any  loss  or  injury  to  goods  of  travellers 
placed  infra  hospitum ;  and  of  common  carriers.  The  liability  of  these 
three  appears  to  rest  on  the  same  principle,  and  have  the  same  extent;  being, 
within  the  range  of  its  action,  a  responsibility  for  all  damage  arising  by 
human  means :  and  it  is  enforced  by  the  same  kind  of  special  writ,  upon 
the  latv  and  custom  of  the  realm  of  England.  It  appears  to  be  a  peculiar, 
and  native  institution  of  the  English  people ;  very  similar  in  its  policy  to 
the  law  which  made  the  hundred  liable  for  robberies,  &c. 

The  common-law  responsibility  of  a  master  of  a  house  is  understood  to  be 
abolished  by  statute  6  Ann.  c.  31,  s.  6;  10  Ann.  c.  14,  s.  1;  which  provides, 
that  no  action  shall  be  maintained  against  any  person  in  whose  house  or 
chamber  any  fire  shall  accidentally  begin :  the  old  cases,  however,  especially 
2  Hen.  IV.  18,  pi.  6,  are  worth  reading,  on  account  of  the  close  analogy  to 


266  smith's   leading   cases. 

the  cases  of  innkeepers  and  carriers:  and  the  case  of  Anonymous,  Cro.  El. 
10,  to  illustrate  the  difference  between  a  special  action  on  the  custom,  and 
an  action  on  the  case  for  negligence.  See  also,  Filliter  v.  Phippard,  11  Q. 
B.  347,  354. 

The  whole  subject  of  the  preceding  case,  and  of  Calye's  (ante  p.  170,) 
may,  therefore  be  considered  under  the  following  heads  : 

1.  Innkeepers. 

2.  Common  carriers. 

3.  Ordinary  paid  agents;  and  unpaid  agents. 

1.  Innkeeper. — The  principle,  exhibited  in  Calye's  case,  (ante  p.  170,) 
in  regard  to  the  liability  of  an  innkeeper,  is  well  established,  as  a  part  of 
the  law,  in  this  country.  An  innkeeper  is  answerable  for  all  losses  happen- 
ing to  the  goods  of  travellers  becoming  hia  guests,  except  such  losses  as  are 
caused  by  the  act  of  God  or  the  public  enemies,  or  by  the  conduct  of  the 
guest  himself,  or  his  servant,  or  the  companion  whom  he  brings  with  him ; 
Mason  v.  Thompson,  9  Pickering,  280,  284 ;  Kisten  v.  Hildebraud,  9  B. 
Monroe,  72,  74 ;  Thickstun  v.  Howard,  8  Blackford,  535,  537. 

To  become  subject  to  this  extraordinary  liability,  it  is  essential  that  the 
person  should  be  a  common  innkeeper;  that  is  to  say,  should  exercise  the 
calling  or  business  of  entertaining  travellers,  or  transient  persons  ;  either, 
together  with,  or  without,  their  horses ;  and  should,  thereby,  become  bound 
to  receive  and  entertain  all  travellers  demanding  hospitality,  unless  there  be 
a  good  excuse  for  refusing.  The  keeper  of  a  boarding-house,  or  a  coffee- 
house, though  he  may  occasionally  entertain  travellers,  does  not  incur  the 
responsibility  of  an  innkeeper ;  Kisten  v.  Hildebrand,  9  B.  Monroe,  72, 
75.  And  it  is  only  in  relation  to  the  goods  of  travellers  or  wayfarers, 
becoming  his  guests,  that  an  innkeeper  incurs  this  liability ;  the  goods  of  a 
permanent  boarder  at  an  inn,  are  not  thus  protected ;  Manning  v.  Wells,  9 
Humphreys,  746  ;  Kisten  v.  Hildebrand. 

To  give  rise  to  this  liability  in  an  innkeeper,  it  is  necessary  that  the  tra- 
veller should  have  become,  in  point  of  law,  his  guest.  If  a  traveller  comes 
to  an  inn,  and  becomes  its  guest,  and  leaves  his  property  there,  and  goes 
out  for  a  time,  intending  to  return,  the  innkeeper  is  liable  for  goods  lost 
during  the  guest's  absence;  McDonald  v.  Edgerton,  5  Barbour's  S.  Ct.  560. 
But,  upon  the  question,  whether  a  traveller  can  become  a  guest,  by  sending 
his  goods  to  an  inn,  without  going  there  himself,  there  has  been  a  difference 
of  opinion.  The  true  principle  appears  to  be,  that  the  business  of  an  inn- 
keeper is  two-fold ;  to  entertain  travellers,  and  to  entertain  their  horses, 
including  the  care  of  travelling  equipage.  A  person  will,  no  doubt,  incur 
the  full  liability  of  an  innkeeper,  as  respects  goods  brought  to  his  inn  by  a 
traveller,  even  if  such  person  provides  entertainment  for  travellers  only, 
and  not  for  their  horses.  And,  on  the  other  hand,  a  person  who  provided 
entertainment  only  for  the  horses  of  travellers,  and  not  for  travellers  also, 
would  not  incur  an  innkeeper's  responsibility,  as  respects  horses  sent  to  him 
by  travqllers ;  for  he  would  be,  in  law,  a  liveryman,  and  not  an  innkeeper. 
But  the  business  of  an  innkeeper,  in  its  greatest  completeness,  includes 
both  services :  and  the  law  seems  to  be,  that  a  traveller,  by  sending  his 
horses  and  carriage  to  an  inn,  becomes  the  guest  of  the  inn,  so  far  as  a 
responsibility  for  those  objects  is  concerned,  though  the  traveller  himself 
lodges  and  diets  elsewhere ;  but  that,  by  sending  to  an  inn  his  luggage,  or 


COGGS    y.     BERNARD.  267 

other  effects  accompanying  the  person,  without  coming  himself,  he  does  not 
become  a  guest,  nor  does  the  innkeeper  become  chargeable  for  them.  That 
a  traveller,  by  sending  his  horse,  chaise  and  harness  to  an  inn,  though  he 
himself  goes  to  lodge  with  a  friend,  becomes  the  guest  of  the  inn,  so  far  as 
to  cause  the  innkeeper  to  be  liable  for  the  loss  of  the  horse  or  equipage,  is 
decided  in  Mason  v.  Thompson,  9  Pickering,  280,  285,  on  the  authority  of 
Yorke  v.  Grenaugh,  2  Lord  Raymond,  866,  868 ;  and  again  in  Peet  v. 
M'Graw,  25  Wendell,  653.  If,  however,  one  who  is  not  a  traveller,  way- 
farer, or  transient  person,  but  a  resident  in  the  town,  keep  his  horses  at  an 
inn,  the  innholder  is  not  answerable,  but  for  negligence;  being  in  law,  as 
respects  such  horses,  only  a  liveryman.  This  is  the  point  adjudged  in  Grin- 
nell  V.  Cook,  3  Hill's  N.  Y.  486,  Thickstun  v.  Howard,  8  Blackford,  535, 
and  Hickman  v.  Thomas,  16  Alabama,  6§6;  and  although,  in  all  of  those 
cases,  the  opinion  was  expressed,  that  to  make  an  innkeeper  liable  for  the 
horses  of  any  one,  the  proprietor  must  become  personally  a  guest  of  the  inn, 
yet  that  point  was  not,  in  any  of  these  cases,  judicially  before  the  court. 

The  liability  of  an  innkeeper  is  for  all  goods  of  a  traveller,  that  are  h>fra 
Jiosjxitium,  that  is,  intrusted  to  the  care  and  keeping  of  the  inn.  An  inn- 
keeper, indeed,  is  bound  to  take  into  his  care  and  keeping,  the  goods  of  all 
travellers  coming  as  guests  to  his  inn,  without  its  being  necessary  that  the 
goods  should  be  placed  in  his  special  keeping;  and,  therefore,  if  a  traveller 
is  his  guest,  and  the  goods  are  brought  within  the  inn,  that  is  sufiBcient  to 
create  the  responsibility;  McDonald  v.  Edgerton,  5  Barbour's  S.  Ct.  560. 
But  if  the  goods  are  intrusted  to  the  keeping  of  the  innholder,  it  matters 
not,  whether  or  not,  they  are  brought  within  the  building,  or  even  within 
the  curtilage  of  the  inn  :  the  liabilitj^  does  not  depend  upon  the  place  where 
the  goods  are  deposited,  but  upon  the  question,  whether  they  are  given  into 
the  custody  of  the  innkeeper,  or  kept  at  the  risk  of  the  guest.  The  inquiry 
always  is,  did  the  party  rest  on  the  security  of  the  inn  ?  If  the  guest  leaves 
his  horse,  carriage,  or  other  property,  to  the  care  and  disposal  of  the 
innkeeper,  the  latter  is  liable,  though  the  property  is  put  in  a  stable,  wagon- 
house,  open  shed,  or  pasture-lot;  Clute  v.  Wiggins,  14  Johnson,  175;  Piper 
V.  Manny,  21  Wendell,  282  :  but  if  the  guest  requires  that  his  horse,  or 
other  animal,  should  be  put  to  pasture,  and  he  is  stolen,  the  innkeeper  is  not 
liable;  Hawley  v.  Smith,  25  Wendell,  642.  That  is  the  principle  upon 
which  the  court,  in  that  case,  professed  to  proceed,  and  it  is  no  doubt  a  correct 
one ;  but,  as  the  statement  says,  that  the  plaintiff  stopped  at  the  house  with 
a  drove  of  700  sheep,  which,  "with  his  knowledge,"  were  turned  out  to 
pasture,  and,  there,  were  injured  by  eating  laurel,  probably,  the  true  ground 
of  the  judgment  is,  that  a  flock  of  sheep  is  not  comprehended  among  the 
"  bona  et  catalla  transeuntis,"  which  an  innkeeper  is  bound  to  receive  and 
protect.  Upon  a  similar  principle,  that  an  innkeeper  is  liable  only  for  such 
things  as  are  put  infra  hospitivm,  or,  under  the  protection  of  the  inn,  it  was 
held  in  a  case,  where  the  plaintiff  coming  to  lodge  at  the  inn,  had  delivered 
a  bag  of  money  to  the  innkeeper's  step-daughter,  who  was  in  the  house  as 
a  relation,  and  not  as  a  servant,  the  plaintiff  being  on  terms  of  great  inti- 
macy with  her,  and  having  often  before  trusted  money  to  her  keeping,  and 
then  actually  courting  her  in  marriage,  and  she  had  carried  the  bag  into 
the  defendant's  bed-room,  that  the  true  point  in  the  case,  was,  whether  the 
plaintiff   did   not  repose   his  trust  and  confidence  in   the   step-daughter, 


268  smith's   leading   cases. 

without  resting  ou  the  security  of  the  inn ;  and  the  jury  found  for  the  defend- 
ant; Sneider  v.  Geiss,  1  Yeates,  34. 

If  any  casualty  befal  an  animal,  in  the  possession  of  an  innkeeper,  to 
which  his  responsibility  as  innkeeper  would  not  extend,  he  will  still  be 
liable  as  a  bailee,  for  negligence;  Hill  v.  Owen,  5  iilackford,  323;  Ilawley 
V.  Smith. 

2.  Common  Carriers. 

Definition  of  covimon  carriers.  A  common  carrier  is  usually  defined, 
one  who  undertakes  for  hire  to  carry  for  any  who  choose  to  employ  him. 
See  Mershon  et  al.  v.  Hobensack,  2  Zabriskie,  373,  377.  The  subject  is 
examined  by  Gibson,  C.  J.,  in  Gordon  v.  Hutchinson,  1  Watts  and  Ser- 
geant, 285,  and  the  rule  deduced  is,  that  ''  a  wagoner,  who  carries  goods  for 
hire,  is  a  common  carrier,  whether  transportation  be  his  principal  and  direct 
business,  or  an  occasional  and  incidental  employment."  In  Craig  v.  Chil- 
dress, Peck's  Tennessee,  270,  271,  the  rule  laid  down,  and  approved  of  in 
Turney  v.  Wilson,  7  Yerger,  340,  342,  is  that  <'  one  who  undertakes  for  a 
reward  to  convey  produce  or  goods  of  any  sort,  from  one  place  upon  the 
river  to  another,  becomes  thereby  liable  as  a  common  carrier  :"  and  in 
Moses  et  al.  v.  Norris,  4  New  Hampshire,  304,  it  was  held  to  be  well  settled 
that  "all  persons  carrying  goods  for  hire,  come  under  the  denomination  of 
common  carriers."  In  Chevallier  v.  Strahams,  2  Texas,  115, 121,  this  s\ib- 
ject  was  examined,  and  the  rule  deduced,  "  that  all  persons  who  transport 
goods  from  place  to  place  for  hire,  for  such  persons  as  see  fit  to  employ  them, 
whether  usually  or  occasionally,  whether  as  a  principal  or  an  incidental  and 
subordinate  occupation,  are  common  carriers,  and  incur  all  their  responsibili- 
ties." It  is  reasonable,  and  seems  to  be  settled,  that  one  who  undertakes, 
though  it  be  only  pro  hac  vice,  to  act  as  a  common  carrier,  that  is,  to  carry 
for  hire  without  a  special  contract,  tlierchy  incurs  the  responsibility  of  a 
common  carrier.  Powers  v.  Davenport,  7  Blackford,  497.  Ship-owners, 
and  steamboat-owners,  carrying  goods,  on  rivers,  lakes,  or  the  high  seas, 
either  to  foreign  or  domestic  ports,  are  common  carriers,  with  all  the  duties 
and  responsibilities  which  belong  to  carriers  by  land.  Elliott  &  Stewart 
V.  Rossell  &  Lewis,  10  Johnson,  1 ;  Kemp  &  Billing  v.  Coughtry  and  others, 

11  id.  107  ;  M'Arthur  &  Hurlbcrt  v.  Sears,  21  Wendell,  190,  over-ruling 
whatever  was  contra  in  Aymar  v.  Astor,  G  Cowcn,  266 ;  Crosby  v.  Fitch, 

12  Connecticut,  410;  Hastings  et  al.  v.  Pepper,  11  Pickering,  41 ;  Bennett 
V.  Filyaw,  1  Florida,  403  ;  Friend,  &c.  v.  Woods,  6  Grattan,  189,  192 ; 
Porterfield  &  Brooks  v.  Humphreys,  8  Humphreys,  497,  &c.  &c.  To  con- 
stitute a  common  carrier,  a  right  to  compensation  must  exist,  though  a  con- 
tract to  pay  a  certain  sum  need  not  have  been  made;  Knox  v.  Hives,  Battle, 
&  Co.,  14  Alabama,  249  ;  see  also  M'Gill  v.  Kowand,  3  Barr,  451.  What 
variation  the  bills  of  lading  may  introduce,  see  infra.  In  relation  to  pas- 
sengers, stage-owners  and  steamboat  and  railroad  companies,  do  not  incur 
the  liability  of  common  carriers,  and  are  responsible  only  for  negligence  in 
conducting  the  journey,  or  in  providing  the  means  of  transportation  ;  Boyce 
V.  Anderson,  2  Peters,  150;  Stokes  v.  Salstonstall,  13  id.  181;  Stockton  v. 
Frey,  4  Gill,  408,  423  ;  and  with  regard  to  their  liability  for  defects  in  tho 
means  of  conveyance,  such  as  coaches,  harness,  &;c.,  it  has  lately  been  deci- 
ded, that  they  arc  responsible  for  the  consequences  to  the  passengers,  of  all 


COGGS     V.      BERNARD.  269 

defects  which  might  have  been  discovered  and  remedied  upon  the  most 
thorough  and  careful  examination  of  the  vehicle,  but  not  for  accidents  hap- 
pening from  an  internal  and  hidden  defect,  which  a  thorough  and  careful 
examination  could  not  disclose,  and  which  could  not  be  guarded  against  by 
the  exercise  of  a  sound  judgment,  and  the  most  vigilant  oversight;  Ingalls 
V.  Bills  and  others,  9  Metcalf,  1 ;  but  of  the  baggage  of  passengers,  they 
are  common  carriers,  the  compensation  for  its  conveyance  being  in  law 
included  in  the  passage-money  paid  by  the  traveller ;  Orange  County  Bank 
v.  Brown,  9  Wendell,  85;  Camden  &c.  Company  v.  Burke,  13  id.  611; 
Hollister  v.  Nowlen,  19  id.  235  ;  Cole  v.  Groodwin,  id.  251 ;  Bennett  v. 
Dutton,  10  New  Hampshire,  481,480;  see  Blanchard  v.  Isaacs,  3  Barbour's 
S.  Ct.  388 ;  Peixotti  v.  M'Laughlin,  1  Strobhart,  468  ;  but  unless  notice 
is  given,  and  an  extra  price  paid,  where  articles  of  unusual  character  and 
value  are  carried,  as  in  Camden,  &c.  Co.  v.  Burke,  the  implied  liability  for 
the  safe  carriage  of  baggage,  created  by  the  principal  contract  in  relation  to 
the  passenger,  will  not  extend  beyond  what  is  strictly  and  fairly  baggage, 
that  is,  such  articles  as  are  usually  carried  by  travellers  for  their  personal 
accomodation  and  use  in  the  journey,  and  will  not  include  money  or  mer- 
chandise carried  in  trunks  ;  Orange  County  Bank  v.  Brown ;  Pardee  v. 
Drew,  25  Wendell,  459;  Hawkins  v.  Hoffman,  6  Hill,  586;  Bingham  v. 
Rogers,  6  Watts  &  Sergeant,  495 ;  N.  J.  Steam  Nav.  Co.  v.  Merchant's 
Bank,  6  Howard's  S.  C.  344,417;  Bomar  v.  Maxwell,  9  Humphreys,  621, 
624.  The  responsibility  of  such  persons  as  common  carriers,  attaches  as 
soon  as  the  baggage  is  delivered  to  the  agent  or  conductor,  and  taken  into 
keeping  by  him,  though  not  intended  to  start  till  the  next  conveyance; 
Camden,  &c.  v.  Belknap,  21  Wendell,  355 ;  and  mere  arrival  at  the  place  of 
stopping,  does  not  discharge  the  steamboat-owner,  but  he  continues  liable 
as  carrier,  till  the  usual  time  of  delivery,  and  is  liable  if  he  deliver  the 
baggage  to  the  wrong  person,  upon  a  forged  order ;  Powell  and  others  v. 
Myers,  26  Wendell,  591,  in  the  Court  of  Errors;  See  also  Logan  v.  The 
Ponchartrain  Rail  Road  Company,  11  Robinson's  Louisiana,  24.  But 
when  goods  carried  upon  a  railway,  are  deposited  in  the  railway  company's 
warehouse,  the  company's  liability  while  the  goods  are  in  their  warehouse, 
is  only  that  of  paid  depositaries ;  Thomas  v.  B.  &  Pr.  R.  R.  Corp.  10  Met- 
calf, 472.  See  Lewis  v.  Western  R.  R.  Corporation,  11  Id.  509.  Steam- 
boat owners,  undertaking  as  a  business  to  tow  other  boats,  in  possession  of 
which  the  master  and  hands  remain,  are  not  common  carriers,  but  liable 
only  as  paid  agents  for  ordinary  negligence.  Alexander  and  others  v. 
Green  and  others,  3  Hill's  N.  Y.  10  ;  Wells  v.  The  Steam  Nav.  Co.  2  Com- 
stock,  204,  208.  Fei-rymen  are  common  carriers;  Rutherford  v.  M'Growen, 
1  Nutt  &  M'Cord,  17 ;  Cook  v.  Gourdin,  id.  19  ;  Pomeroy  v.  Donaldson,  5 
Missouri,  36  ;  Smith  v.  Seward,  3  Barr,  342, 345  ;  Peixotti  v.  M'Laughlin, 
1  Strobhart,  468.  In  Dwight  et  al.  v.  Brewster  et  al.,  4  Pickering,  50, 
a  common  carrier  is  defined,  <<  One  who  undertakes  for  hire  or  reward,  to 
transport  the  goods  of  such  as  choose  to  employ  him  from  place  to  place  :" 
and  it  was  there  held,  in  the  case  of  a  stage-coach,  whose  principal  business 
was  to  carry  the  mail  and  passengers,  that  the  practice  of  taking  parcels  for 
hire  to  be  conveyed  in  the  stage-coach,  constituted  the  proprietors  com- 
mon carriers ;  and  that  the  notice  <'  all  baggage  at  the  risk  of  the  owners," 
related  only  to  the  baggage  of  passengers  and  not  parcels;  and  the 
same  points  are  decided  in  Beckman  &  Johnson  v.  Shouse,  5  Rawle,  179. 


270  smith's  leading  cases. 

In  Robertson  &  Co.  v.  Kennedy,  2  Dana,  431,  where  the  same  defini- 
tion is  given,  it  was  held,  that  "  Draymen,  cartmen,  and  porters,  who  under- 
take to  carry  goods  for  hire,  as  a  common  employment,  from  one  part  of 
a  town  to  another,  come  within  the  definition."  A  person  may  be  a  com- 
mon carrier  of  money,  as  well  as  of  other  property  :  Kemp  &  Billings  v. 
Coughtry  and  others,  11  Johnson,  107 ;  S.  P.  Harrington  and  others  v. 
M'Shane,  2  Watts,  443 ;  and  Emery  v.  Hersey,  4  Greeuleaf,  407. 

Where  the  business  undertaken  by  the  proprietors  of  a  conveyance,  is 
not  clearly  defined  and  known,  the  question  often  arises  as  to  the  liability  of 
the  proprietors,  for  articles  delivered  to  the  agent  who  conducts  the  convey- 
ance ;  the  stage-driver,  for  instance,  or  steamboat  captain.  This  is  not  a 
question  in  the  law  of  common  carriers ;  but  it  is  a  question  obviously 
belonging  wholly  to  the  law  of  agency.  If  there  had  been  no  actual  autho- 
rity given  to  the  conductor  of  the  conveyance,  and  yet  the  circumstances 
are  such  as  to  create  a  general  agency  as  to  the  kind  of  carrying  in  question, 
the  proprietors  will  be  liable,  as  in  Dwight  et  al.  v.  Brewster  et  al. :  on  the 
other  hand,  if  the  proprietor  of  a  vehicle,  who  is  not,  though  he  formerly 
may  have  been,  in  the  business  of  a  common  carrier,  send  his  servant  with 
it,  on  a  special  journey,  with  express  orders  not  to  carry  for  others,  he,  the 
proprietor,  is  not  liable.  Satterlee  and  others  v.  Grroat,  1  Wendell,  172. 
The  case  of  Aliens  v.  Sewall  and  others,  2  Wendell,  327,  S.  C.  6  id.  335, 
turned  in  fact  wholly  upon  the  question  of  agency  or  no  agency;  and  a 
majority  of  the  Court  of  Errors  were  finally  of  opinion,  that,  under  the 
special  facts  of  the  case,  the  parcel  had  been  confided  to  the  personal  trust 
and  care  of  the  captain,  and  not  to  him  as  agent  and  representative  of  the 
proprietors,  and  that,  therefore,  the  latter  were  not  liable.  The  same  prin- 
ciples, of  making  the  liability  of  the  ship-owner  for  the  acts  of  the  master, 
turn  on  the  general  law  of  agency,  are  acted  on  in  Walter  v.  Brewer,  11 
Mass.  99 ;  see  also  Taylor  v.  Wells,  3  Watts,  65. 

The  liability  of  a  carrier.  A  common  carrier  is  absolutely  liable  for  the 
safety  of  the  goods ;  and  is  responsible  for  injuries  or  losses  arising  from 
the  acts  of  others,  without  any  neglect  or  fault  on  his  part :  the  exceptions, 
according  to  the  usual  language,  are,  "  the  acts  of  God,  the  public  enemies, 
or  the  fault  of  the  party  complaining."  Dusar  v.  Murgatroyd,  1  Wash- 
ington C.  C.  K  13,  17  5  Eriend,  &c.  v.  Woods,  G  Grattan,  189,  192;  see 
also  New  Jersey  Steam  Nav.  Co.  v.  Merchants'  Bank,  G  Howard's  S.  Ct., 
344,  381. 

What  precisely  is  meant  by  the  technical  expression,  Act  of  God,  has  been 
a  point  of  some  little  difiiculty.  I  apprehend  that  the  true  notion  of  the 
exception  is,  those  losses  that  are  occasioned  exclusively  by  the  violence  of 
nature  ;  by  that  kind  of  force  of  the  elements,  which  human  ability  could 
not  have  foreseen  or  prevented  :  such  as  lightning,  tornadoes,  sudden  squalls 
of  Avind,  &c.  If,  however,  it  does  not  necessarily  mean  only  the  violence  of 
nature,  it  certainly  is  restricted  to  the  act  of  nature,  and  implies  the  entire 
exclusion  of  all  human  agency,  whether  of  the  carriers  or  of  third  persons. 
This  principle  is  settled  in  M'Arthur  &  Hurlbertv.  Sears,  21  Wendell,  190; 
a  highly  interesting  and  important  case,  to  which  the  reader  is  specially 
referred :  it  is  there  said,  "  No  matter  what  degree  of  prudence  may  be 
exercised  by  the  carrier  and  his  servants;  although  the  delusion  by  which 
it  is  baffled,  or  the  force  by  which  it  is  overcome  be  inevitable ;  yet  if  it  be 


COGQS    V.    BERNARD.  271 

the  result  of  human  means,  tlie  carrier  is  responsible;"  p.  196.     All  the 
cases  appear  to  agree  in  requiring  this  entire  exclusion  of  human  agency, 
from  the  cause  of  the  injury  or  loss.     See  Mershon  et  al.  v.  Hobensack,  2 
Zabriskie,  373,  381 ;  and  see  also,  Chevallier  v.  Strahams,  2  Texas,  115, 
125,  where  it  was  held  that  a  loss  caused  by  fire,  blown  from  some  distance 
by  the  wind,  was  not  caused  by  an  act  of  God.     In  Backhouse  v.  Sneed,  1 
Murphy,  173,  it  is  held  that,  "all  accidents  which  can  occur  by  the  inter- 
vention of  human  means,  however  irresistible  they  may  be,  the  carrier  is 
considered  as  insuring  against."     In  Ewart  v.  Street,  2  Bailey,  157,  it  is 
held,  that  to  come  within  the  exception,  the  loss  must  result  not  from 
human  agency,  but  immediately  and  directly,  and  not  consequentially,  from 
the  act  of  God;  and  in  Smyrl  v.  Niolon,  id.  421,  it  is  said,  that  if  a  freshet 
have  so  disturbed  and  changed  the  regular  navigation  of  the  river,  that  a 
snag  has  been  lodged  in  the  usual  channel,  and  a  vessel  descending  the 
usual  channel  is  lost  upon  this  snag,  which  was  not  before  known  to  be 
there,  this  is  a  loss  by  the  act  of  God;  but  it  seems  to  be  very  questionable 
whether  such  a  loss  is  not  too  remote  a  consequence  of  the  act  of  God,  and 
whether  the  navigator  of  a  river,  whose  channel  is  liable  to  be  so  interrupted, 
is  not  bound  to  take  notice  of  the  probable  results  of  a  freshet,  and  to  be 
responsible  for  what  is  in  fact,  an  ordinary  peril  of  the  kind  of  navigation  he 
has  undertaken.     It  is  true  that  the  case  of  Smyrl  v.  Niolon  appears  to  be 
confirmed  in  Faulkner  &  Cams  v.  Wright,  Coker  &  Tuttle,  Rice,  108. 
The  case  of  Williams  and  others  v.  Grant  and  others,  1  Connecticut,  487, 
goes  still  farther  than  that  of  Smyrl  v.  Niolon,  for  it  is  said  there  that  striking 
upon  a  rock,  in  the  sea,  not  generally  known  to  navigators,  and  actually  not 
known  to  the  master  of  the  ship,  is  the  act  of  God :  but  this  seems  to  be 
giving  rather  a  Mahometan  extension  to  that  phrase :  and  perhaps  both  of 
these  cases  are  liable  to  the  remark  of  confounding  the  exception  of  the  act 
of  God,  with  the  exception  of  perils  of  the  "navigation,"  in  bills  of  lading  : 
— between  which  there  is  a  settled  distinction,  which  may  here  be  noted. 
While  it  is  universally  agreed  that  the  liability  of  carriers  by  water,  is,  at 
common  law,  and  in  the  absence  of  express  contract,  identical  with  that  of 
carriers  by  land,  it  seems  to  be  admitted  by  the  best  authorities,  that  the  bill 
of  lading  may,  in  navigation  by  water,  introduce  exceptions  not  existing  by 
common  law;  see  Elliott  v.  Rossell,  10  Johnson,  1,  9:  and  M'Arthur  & 
Hurlbert  v.  Sears :  and  this  seems  to  be  the  point  asserted  in  Aymar  v. 
Astor.     This  exception  of  "  the  perils  of  the  sea  or  of  the  river,"  has 
received  a  fixed  construction,  narrow  enough,  yet  somewhat  wider   than 
"the  act  of  God."     In  Johnson  v.  Friar,  4  Yerger,  48,  it  is  decided  that 
the  expression  "dangers  of  the  river  excepted,"  in  bills  of  lading,  means 
only  such  as  no  human  skill  or  foresight  could  have  guarded  against;  and 
in  Gordon  v.  Buchanan,  5  Yerger,  72,  82,  the  distinction  is   expressly 
taken;  the  act  of  God,  it  is  said,  "means  disasters  with  which  the  agency 
of   man  has  nothing  to  do,  such  as  lightning,  tempests,  and  the  like;" 
"the   perils  of  the   river,"  includes   something   more;    "  ]Many  disasters 
which  would  not  come  within  the  definition  of  the  act  of  God,  would  fall 
within  the  exception  in  this  receipt.     Such,  for  instance,  as  losses  occasioned 
by  hidden  obstructions  in  the  river  newly  placed  there,  and  of  a  character 
that  human  skill  and  foresight  could  not  have  discovered  and  avoided." 
Turncy  v.  Wilson,  7  Yerger,  340,  confirms  these  cases.     In  Williams  v. 


272  smith's    leading   cases. 

Branson,  1  Murphy,  417,  it  is  held  that  this  exception,  in  the  bill  of 
lading,  narrows  the  common-law  liability :  that,  "  dangers  of  the  river," 
"  signify  the  natural  accidents  incident  to  the  navigation,  not  such  aa 
might  be  avoided  by  the  exercise  of  that  discretion  and  foresight  which  are 
expected  from  persons  in  such  employment;"  and  that  to  ascertain  whether 
the  loss  were  by  a  "  peril  of  the  sea,"  it  must  be  inquired  whether  the  acci- 
dent arose  through  want  of  proper  foresight  and  prudence.  In  Marsh  & 
Howren  v.  Blithe,  1  Nott  &  M'Cord,  170,  the  point  is  the  same;  the  mean- 
ing of  "the  act  of  God"  was  not  in  question;  the  point  decided,  was  that 
to  determine  whether  the  cause  of  the  loss  was  "  a  peril  of  the  sea,"  the 
existence  or  non-existence  of  negligence  was  to  be  tried  by  the  jury :  and 
see  S.  P.  Humphreys  v.  Heed,  6  Wharton,  435,  442.  444;  Whitesides  v. 
Russell,  8  Watts  &  Sergeant,  44,  49.  In  Jones  et  al.  v.  Pitcher  &  Co.,  3 
Stewart  &  Porter,  136,  171,  &c.  j  confirmed  4  id.  382,  there  is  a  rambling 
discussion  as  to  the  meaning  of  "act  of  God"  and  "perils  of  the  river,"  to 
the  same  effect.  The  case  of  Williams  and  others  v.  Grant  and  others,  1 
Connecticut,  487,  is  an  authority^  as  an  adjudged  case,  only  as  to  the  mean- 
ing of  "the  perils  of  the  sea;"  for  in  that  case  there  was  a  bill  of  lading, 
containing  that  exception :  the  court  however  supposed  the  two  expressions 
to  have  the  same  meaning,  and  define  the  act  of  God  to  mean  "  all  misfor- 
tunes and  accidents  arising  from  inevitable  necessity,  which  human  prudence 
could  not  foresee  and  prevent;"  but  this  opinion  that  the  two  phrases  are 
the  same,  is  denied  in  M'Arthur  &  Hurl  hurt  v.  Sears.  That  there  is  a 
distinction  between  the  two  expressions  is  also  established  in  Plaisted  v. 
Boston  &  Kennebec  Steam  Nav.  Co.,  27  Maine,  132,  where  it  is  decided 
that  a  loss  by  collision  at  sea  is  not  an  act  of  God  to  excuse  a  carrier,  though 
it  would  be  a  peril  of  the  sea.  There  is  one  other  case  which  should  be 
referred  to,  which,  though  it  does  not  carry  the  meaning  of  an  "  act  of 
God,"  beyond  the  meaning  of  "an  act  of  nature," -yet  militates  against  its 
meaning  a  direct  and  violent  act  of  nature  :  the  case  is  that  of  Colt  &  Colt 
V.  M'Mechen,  6  Johnson,  160.  It  was  decided  there,  that  a  sudden /a iVwre 
of  the  wind,  whereby  the  vessel  tacking  was  unable  to  change  her  tack,  and 
so  was  sent  ashore,  was  an  act  of  God :  it  is  stated  in  the  evidence,  and  the 
opinion,  that  the  wind  was  light  and  variable :  that  they  were  standing  for 
the  west  shore,  and  had  approached  it,  as  near  as  was  usual  and  proper,  when 
they  put  down  the  helm  to  bring  her  about,  the  jib-sail  began  to  fill,  the 
vessel  had  partly  changed  her  tack,  when  the  wind  suddenly  ceased  blowing, 
and  the  head  way  under  which  the  vessel  was  shot  her  on  the  bank.  "  The 
sudden  gust,  in  the  case  of  the  hoyman,"  says  Spencer,  J.,  alluding  to  the 
case  of  Amies  v.  Stephens,  1  Str.  128,  "and  the  sudden  and  entire  failure 
of  the  wind  sufficient  to  enable  the  vessel  to  beat,  are  equally  to  be  considered 
the  acts  of  God.  He  caused  the  gust  to  blow  in  the  one  case ;  and  in  the 
other,  the  wind  was  stayed  by  him."  This  may  be  very  fair  divinity;  and 
upon  such  a  theological  theory  of  causation,  every  thing  may  be  the  act  of 
God ;  but  it  is  the  most  extraordinary  version  of  the  principle  on  which  a 
common  carrier  is  discharged  from  liability  that  the  books  contain,  and  upon 
the  authority  of  later  cases,  may  confidently  be  pronounced  to  be  wrong. 
Kent,  Ch.  J.,  in  fact  substantially  dissented  :  for  while  he  assented  to  the 
theology  of  Spencer,  J.,  that  the  stopping  of  the  wind  was  the  act  of  God, 
be  thought  there  "was  a  degree  of  negligence   imputable  to  the  master,  in 


COGGS    V.    BERNARD.  273 

sailing  so  near  the  shore  under  a  light  variable  wind,  that  a  failure  in  coming 
about,  would  cast  him  aground.     He  ought  to  have  exercised  more  caution, 
and  guarded  against  such  a  probable  event,  in  the  case,  as  the  want  of  wind 
to  bring  his  vessel  about,  &c.  j"  in  other  words,  he  thought  it  not  such  an 
act  of  God  as  takes  away  the  legal  inference  of  negligence.     The  principle 
so  clearly  and  carefully  ascertained  in  M'Arthur  &  Hurlbert  v.  Sears,  con- 
trols both   this  case  and  Williams  and   others  v.  Grant   and  others.     The 
principle  that  all  human  agency  is  to  be  excluded  from  creating  or  entering 
into,  the  cause  of  mischief,  in  order  that  it  may  be  deemed  the  act  of  God, 
shuts  out  those  cases  where  the  natural  object  in  question  is  made  a  cause 
of  mischief  solely  by  the  act  of  the  captain  in  bringing  his  vessel  into  that 
particular  position  where  alone  that  natural  object  could  cause  mischief;  in 
the  two  cases  in  question,  it  was  the  act  of  the  captain  that  imparted  to  the 
natural  objects  all  the  mischievous  qualities  that  they  possessed;  for  rocks, 
shores,  currents,  and  dying  breezes,  are  not  by  their  own  nature,  and  inhe- 
rently, agents  of  mischief  and  causes  of  danger,  as  tempests,  lightning,  &c., 
are  ;  the  danger  therefore  sprang  from  human  agency.     It  may  be  thought 
that  in  principle  the  distinction  does  not  amount  to  much,  for  that  the  carrier 
is  always  liable  for  his  own  negligence,  and  it  is  easy  to  see  that  such  acci- 
dents never  can  prove  fatal  without  negligence  on  his  part.     But  practically 
the  distinction  is  of  the  first  importance,  because,  it  affects  the  burden  of 
the  proof:  and  the  confusion  of  the  distinction  tends  to  thwart  the  wise 
provision  of  the  common  law,  which  will  not  allow  the  carrier  to  throw  upon 
the  employer  the  burden  of  proving  or  inferring  negligence   or  defective 
means  in  the  carrier,  until  he  has  shown  the  intervention  of  such  an  extra- 
ordinary, violent,  and  destructive  agent,  as  by  its  very  nature  raises  a  pre- 
sumption that  no  human  means  could  resist  its  effect.     Upon  the  whole, 
it  would  seem  that  an  act  of  God  signifies  the  extraordinary  violence  of 
nature. 

In  the  late  case  of  Friend  &c.  v.  "Woods,  6  Grattan,  189,  the  views  here 
expressed  are  approved,  and  it  is  decided  that  the  act  of  God  which  excuses 
the  carrier  must  be  a  direct  and  violent  act  of  nature.  It  was  there  held 
that  the  stranding  of  a  boat  on  a  bar  recently  formed  in  the  ordinary  channel 
of  the  river,  of  which  the  navigators  of  the  boat  had  no  knowledge,  but 
which  might  have  been  ascertained  by  human  foresight  and  diligence,  was 
not  a  loss  by  the  act  of  God,  but  made  the  carrier  liable.  In  Walpole  v. 
Bridges,  5  Blackford,  222,  it  was  considered  by  the  court  that  an  exception  in 
a  bill  of  lading  of  ''unavoidable  dangers  and  accidents  of  the  road,"  was  equi- 
valent to  an  exception  of  "  the  acts  of  God,"  and  did  not  amount  to  a  restriction 
of  the  common  law  liability;  but  what  was  meant  by  "unavoidable  dangers 
and  accidents  of  the  road,"  was  not  determined  in  that  case.  Again,  in 
M'Call  V.  Brock,  5  Strobhart,  119,  124,  it  was  decided  that  the  bursting  of 
the  boiler  of  a  steamboat  cannot  be  considered  as  included  in  the  exception 
of  the  act  of  God,  or  inevitable  accident ;  and  the  court  there  said,  <'  The 
well-settled  legal  import  of  these  phrases  limits  inevitable  accidents  to  such 
as  may  be  produced  by  physical  causes  which  are  irresistible,  which  human 
foresight  and  prudence  cannot  anticipate,  nor  human  skill  and  diligence 
prevent ;  such  as  loss  by  lightning,  storms,  inundations  and  earthquakes, 
and  the  unknown  dangers  to  navigation,  which  are  suddenly  produced  by 
their  violence." 
Vol.  I.— 18 


274  smith's   leading   cases. 

It  has  been  said  above  tbat  the  carrier  is  always  liable  for  injuries  result- 
ing from  his  own  negligence;  including,  of  course,  defects  in  the  means  of 
transportation  provided  by  him ;  he  is  therefore  liable  for  those  injuries 
which  the  violence  of  nature  causes  in  consequence  of  his  negligence  or 
defective  means.  The  course  of  proof  in  regard  to  a  common  carrier  ap- 
pears to  be  thus  :  By  proving  the  delivery  of  the  thing  to  him  to  be  carried 
by  him,  the  burden  of  accounting  for  it  is  thrown  upon  him;  and  he  must 
either  show  the  safe  delivery  of  the  goods,  or  prove  that  the  loss  occurred 
by  one  of  the  excepted  causes.  Murphey,  Brown  &  Co.  v.  Staton,  3  Mun- 
ford,  239;  Craig  v.  Childress,  Peck,  270;  Turney  v.  Wilson,  7  Yerger,  840; 
Ewart  V.  Street,  and  Smyrl  v.  Niolon,  2  Bailey,  (So.  Car.)  157,  421;  Cameron 
V.  Ilich,  4  Strobhart,  1G8,  180.  If  the  carrier  prove  that  the  injury  or  loss 
was  occasioned  by  one  of  those  occurrences  which  are  termed  the  act  of  God, 
prima  facie  he  discharges  himself :  and  the  onus  of  proving  that  the  alleged 
cause  or  agency  would  not  have  produced  the  loss  or  injury  without  his 
negligence  or  defective  means,  is  thrown  upon  the  plaintiff:  but  if  the  plain- 
tiff  can  prove  such  negligence  or  defective  means,  on  his  part,  as  that  without 
their  co-operation,  the  violence  of  nature  might  not  have  resulted  in  occa- 
sioning a  loss,  he  shall  recover.  Bell  v.  Reed  &  Beelor,  4  Binney,  127  ; 
Hart  V.  Allen  &  Hart,  2  Watts,  114 ;  Reed  v.  I.  &  I.  Dick,  8  id.  479 ;  Wil- 
liams and  others  v.  Grant  and  others,  1  Connecticut,  487;  Lawrence  v. 
M'Gregor,  Wright,  193  ;  Putman  v.  Wood,  3  Massachusetts,  481 ;  Faulkner 
&  Cams  V.  Wright,  Coker  &  Tuttle,  Rice,  108.  The  true  way  of  looking 
at  this  is  not  that  the  carrier  discharges  his  peculiar  liability  by  showing  an 
act  of  God,  and  is  then  made  responsible  as  an  ordinary  agent,  for  negli- 
gence; but  that  the  intervention  of  negligence  breaks  the  carrier's  line  of 
defence  by  showing  that  the  injury  or  loss  was  not  directly  caused  by  the 
act  of  God,  or  more  correctly  speaking,  was  not  the  act  of  God. 

The  liability  of  a  carrier  does  not  begin,  until  there  has  been  a  delivery 
of  the  goods  to  him,  or  his  authorized  servants,  or  agents,  actually  or  con- 
structively;  Tower  v.  The  U.  &  S.  R.  R.  Co.  7  Hill,  47;  Blanchard  v. 
Isaacs,  3  Barbour's  S.  Ct.  388 ;.  Merriam  v.  Hartford  &  New  Haven  R.  R. 
Co.  20  Connecticut,  354  ;  and  when  his  liability  has  attached,  it  does  not 
cease,  until  a  delivery  of  the  goods  by  him,  according  to  the  usage  of  the 
business ;  Graff  v.  Bloomer,  9  Barr,  114 ;  T.  &  M.  Bank  v.  Ch.  Tr.  Co.  18 
Vermont,  131,  140;  McHenry  v.  Railroad  Co.  4  Harrington,  448. 

Exceptions  to  a  can-ier's  UahiUtij. — In  Phillips  v.  Earle  et  al.,  8  Picker- 
ing, 182,  it  is  decided  that  a  carrier  is  liable  for  the  loss  of  a  valuable  pack- 
age, though  not  informed  of  the  value  of  the  contents;  but  it  is  said  he 
would  not  be,  if  deceived  as  to  the  value,  for  that  would  be  a  fraud.  The 
same  principle  is  established  in  Relf  v.  Rapp,  3  Watts  &  Sergeant,  21 ;  and 
it  is  there  decided,  that  where  a  fraudulent  misrepresentation  is  made,  as 
by  marking  a  box  of  jewelry  ''glass,"  the  carrier  is  not  liable  for  the  value 
of  the  jewelry.  A  principle,  similar  to  that  of  these  cases,  is  established  by 
the  fine  discussions  in  Hollister  v.  Nowlen,  and  Cole  v.  Goodwin  and  Story, 
19  Wendell,  235  and  252  ;  and  the  points  considered  as  settled  in  those 
cases  are,  agreeably  to  the  afore-cited  cases ;  that  it  is  not  the  duty  of  the 
owner  to  disclose  the  value  and  nature  of  the  contents  of  his  parcels,  but 
the  carrier  is  liable,  whatever  they  may  be ;  but  the  carrier  has  a  right  to 
require  from  the  owner  or  traveller,  to  be  informed  of  the  value,  that  he  may 


COGGS     V.     BERNARD.  275 

know  what  degree  (ff  care  is  necessary,  and  may  make  bis  charge  according 
to  the  responsibility;  and  if  he  make  such  demand,  and  the  owner  is  guilty 
of  fraud  in  misrepresenting  the  nature  and  value,  the  common  carrier's 
extraordinary  liability  is  remitted  ;  but  knowledge  that  the  carrier  requires 
this  information  must  be  brought  home  directly  to  the  employer,  and  gene- 
ral notices  stuck  up  in  public  places,  or  advertised,  however  extensively,  are 
not  sufficient  evidence  of  fraud  in  him ;  and  it  is  strongly  doubted,  if  not 
denied,  in  these  cases,  that  if  the  employer  has  seen  the  notices,  it  is  enough ; 
there  should  be  particular  and  special  inquiry  from  him. 

This  question  is  a  wholly  diiferent  one  from  that  of  the  right  of  the  car- 
rier to  rid  himself  of  this  extraordinary  liability,  by  notice  or  a  special 
acceptance  J  it  concerns  only  his  right  to  require  information  of  the  value, 
that  he  may  regulate  his  care  and  charges  accordingly.  And  it  is  highly 
satisfactory  to  observe  that  the  American  cases  all  put  this  exception  on  the 
ground  of  fraud  in  the  owner,  and  not  on  the  ground  of  special  contract  or 
notice.  There  is  no  doubt  that  this  is  in  perfect  accordancy  with  legal 
principle,  and  the  superior  propriety  of  resting  the  exception  on  fraud,  as 
concerns  principle,  and  the  burden  of  proof,  is  ably  and  abundantly  vindi- 
cated by  Bronson,  J.,  in  Hollister  v.  Nowlcn. 

That  it  is  possible  for  a  common  carrier,  by,  either,  general  notice,  or  a 
special  acceptance,  to  limit  his  extraordinary  liability,  is  a  position  which, 
it  is  believed,  is  not  supported  by  the  authority  of  any  adjudged  case  in  the 
United  States.  On  the  contrary,  it  has  been  determined  in  New  York,  after 
prolonged  and  repeated  consideration,  that  a  carrier  cannot,  by  any  kind  of 
notice,  nor  even  by  express  agreement,  limit  or  vary  his  common-law  respon- 
sibility j  and  it  has  recently  been  decided  by  the  Supreme  Court  of  the 
United  States,  that  he  cannot  protect  himself  by  any  sort  of  notice,  although 
there  may  be  forms  of  express  and  special  contract,  upon  which  his  liability 
may  be  different  from  that  imposed  by  the  common  law. 

In  South  Carolina,  indeed,  in  an  action  brought  upon  a  bill  of  lading,  ex- 
cepting dangers  by  fire,  it  has  been  held,  that  a  carrier  may,  by  agreement, 
limit  his  liability;  Swindler  v.  Hilliard  &  Brooks,  2  Richardson,  286,  303. 
But  this  seems  never  to  have  been  carried  beyond  the  exemption  from  lia- 
bility for  fire,  and  the  true  ground  of  that  exemption,  in  South  Carolina, 
appears  to  be  usage;  see  Singleton  v.  Hilliard  &  Brooks,  1  Strobhart,  203, 
216. 

In  Hollister  v.  Nowlen,  19  Wendell,  235,  the  point  adjudged  by  the 
court,  (according  to  Bronson,  J.'s  statement  of  the  point  in  Cole  v.  Grood- 
win  &  Story,  id.  254,)  is,  that  stage-proprietors  cannot  limit  their  liability 
by  a  general  notice  hrouylit  home  to  the  employer ;  and  in  Camden,  &c. 
Transportation  Co.  v.  Belknap,  21  Wendell,  355,  the  same  point  is  again 
affirmed  to  be  the  settled  law  of  the  court :  see  also  Logan  v.  The  Pont- 
chartrain  Rail  Road  Company,  11  Robinson's  Louisiana,  24.  In  Hollister 
V.  Nowlen,  and  Cole  v.  Goodwin  &  Story,  the  effect  of  a  special  acceptance, 
or  express  contract,  excepting  certain  risks  from  the  carrier's  liability,  was 
left  undecided,  though  Mr.  Justice  Cowen,  in  the  latter  case,  after  an  ela- 
borate  investigation  of  the  English  cases,  which,  as  he  shows,  have  been  not 
a  little  misapprehended  on  this  point,  and  the  principles  of  the  rule,  came 
to  the  conclusion  that  such  agreements  are  invalid;  and  at  a  subsequent 
time,  upon  that  point  coming  up  in  Gould  and  others  v.  Hill  and  others,  2 


276  smith's    leading   cases. 

Hill's  N.  Y.  G23,  where,  upon  delivery  of  goods  to  th(*  common  carrier,  a 
written  memorandum  had  been  received  from  liim,  engaging  to  deliver  the 
goods,  (danger  ofjlre,  &c.  excepted,)  which  the  court  held  ''undoubted  evi- 
dence of  assent,  on  the  part  of  the  employer,"  and  the  goods  were  subse- 
quently destroyed  by  fire,  without  any  negligence  on  the  carrier's  part,  the 
Supreme  Court  adopted  the  opinion  of  Judge  Cowen,  and  decided  that  all 
such  agreements  are  void;  see  Wells  v.  The  Steam  Navigation  Co.  2  Corn- 
stock,  204,  209,  and  Slocum  v.  Fairchild,  7  Hill,  292,  297. 

In  the  absence  of  any  contradictory  decision,  it  may  well  be  considered 
that  the  thorough  discussion  the  matter  underwent  in  the  cases  of  Hollister 
V.  Nowlen,  and  Cole  v.  Goodwin  &  Story,  has  settled  the  principles  of  law 
for  this  country,  in  respect  to  the  inefficacy  of  notices.  "  The  rule  of  the 
common  law,"  says  Bronson,  J.,  "  is  founded  upon  a  great  principle  of 
public  policy  j  it  has  been  approved  by  many  generations  of  wise  men,  and 
if  the  courts  were  now  at  liberty  to  make,  instead  of  declaring  the  law,  it 
may  well  be  questioned  whether  they  could  devise  a  system,  which,  on  the 
whole,  would  operate  more  beneficially.  I  feel  the  more  confident  in  this 
remark,  from  the  fact,  that  in  G-reat  Britain,  after  the  courts  had  been  per- 
plexed, for  thirty  years,  with  various  modifications  of  the  law  in  relation, 
to  carriers,  and  when  they  had  wandered  too  far  to  retrace  their  steps,  the 
legislature  finally  interfered,  and  in  its  more  important  features  restored  the 
salutary  rule  of  the  common  law ;"  p.  241 ;  "  The  doctrine  that  a  carrier 
may  limit  his  responsibility  by  a  notice,  was  wholly  unknown  to  the  com- 
mon law  at  the  time  of  our  Revolution.  It  has  never  been  received  in  this, 
nor,  so  far  as  I  have  observed,  in  any  of  the  states.  Should  it  now  be  re- 
ceived among  us,  it  will  be  after  it  has  been  tried,  condemned,  and  aban- 
doned in  that  country  to  which  we  have  been  accustomed  to  look  for  light 
on  questions  of  jurisprudence;"  p.  248. 

More  recently,  in  New  Jersey  Steam  Navigation  Company  v.  Merchants' 
Bank,  6  Howard's  S.  Ct.  344,  382,  the  Supreme  Court  of  the  United  States, 
though  giving  effect  to  a  special  agreement  of  a  particular  kind  between  an 
express  agent  and  a  steamboat  company,  ('the  character  of  which  will  be 
more  fully  stated  presently),  decided  that  a  carrier  cannot,  by  published 
notices,  exonerate  himself  from  the  liabilities  which  the  law  has  annexed  to 
his  employment.  In  that  case,  notice  was  published  that  "  all  goods,"  &c. 
'<  must  be  at  the  risk  of  the  owners  of  such  goods,  &c."  The  court  said, 
however,  that  admitting  the  right  of  the  carrier  to  restrict  his  obligation  by 
a  previous  general  agreement  defining  the  privileges  and  duties  of  both 
parties,  "  it  by  no  means  follows  that  he  can  do  so  by  any  act  of  his  own. 
He  is  in  the  exercise  of  a  sort  of  public  ofiice,  and  has  public  duties  to  per- 
form, from  which  he  should  not  be  permitted  to  exonerate  himself,  without 
the  assent  of  the  parties  concerned.  And  this  is  not  to  be  implied  or  infer- 
red from  a  general  notice  to  the  public,  limiting  his  obligation,  which  may 
or  may  not  be  assented  to.  He  is  bound  to  receive  and  carry  all  the  goods 
offered  for  transportation,  subject  to  all  the  responsibilities  incident  to  his 
employment,  and  is  liable  to  an  action  in  case  of  refusal.  And  we  agree 
with  the  court  in  Hollister  v.  Nowlen,  that,  if  any  implication  is  to  be  in- 
dulged from  the  delivery  of  the  goods  under  the  general  notice,  it  is  as  strong 
that  the  owner  intended  to  insist  upon  his  rights,  and  the  duties  of  the  car- 
rier, as  it  is  that  be  assented  to  their  qualification.     The  burden  of  proof 


COGGS    V.    BERNARD.  277 

lies  on  the  carrier,  and  nothing  short  of  an  express  stipulation  by  parol  or 
in  writing  should  be  permitted  to  discharge  him  from  duties  which  the  law 
has  annexed  to  his  employment.  The  exemption  from  these  duties  should 
not  depend  upon  implication  or  inference,  founded  on  doubtful  and  conflict- 
ing evidence ;  but  should  be  specific  and  certain,  leaving  no  room  for  con- 
troversy between  the  parties." 

But  though  the  principle,  that  no  effect  is  to  be  given  to  these  limitary 
notices,  has  not  elsewhere  been  decided,  a  kindred  policy  has  been  generally 
adopted,  and  by  construing  such  notices  with  great  rigor,  and  throwing  vari- 
ous obstacles  in  the  way,  the  matter  has  been  so  managed,  that,  it  is  believed 
no  carrier,  charged  upon  his  common-law  liability,  has  ever  protected  him- 
self, in  a  court  of  law,  by  such  a  notice.     In  Barney  v.  Prentiss  &  Carter, 
4  Harris  &  Johnson,  317,  the  court  declined  to  say  whether  common  carriers 
could,  by  any  publications,  exonerate  themselves,  but  decided  that,  admit- 
ting that  they  could,  the  notice  must  be  plain,  explicit,  and  free  from  all 
ambiguity,  and  that,  as  the  defendant,  in  his  notices,  had  used  ambiguous 
and  doubtful  language,  he  stood  as  if  no  notice  had  been  published.     In 
Beans  v.  Green  et  ah,  3  Fairfield,  422,  the  admission  of  the  doctrine  of  no- 
tice was  regretted,  and  it  was  decided  that  general  notice  that  the  carrier 
will  not  be  liable,  unless  the  fare  is  paid,  and  the  article  entered  on  the  way- 
bill, was  nought,  unless  clearly  brought  home  to  the  actual  knowledge  of 
the  party  to  be  affected.     The  Supreme  Court  of  Massachusetts  has  inti- 
mated an  opinion  unfavourable  to  the  validity  of  notices.     ''  The  doctrine  of 
the  common  law,  as   applied  to  common  carriers,"  they  have  said,   ''is 
founded  in  practical  wisdom,  and  has  long  been  consistently  enforced ;  and 
we  are  neither  disposed  to  relax  its  requisitions,  nor  give  countenance  to 
ingenious  devices,  by  which  its  provisions  may  be  evaded ;"  Thomas  v. 
Boston  &  Providence  Pv..  R.  Corp.,  10  Metcalf,  472,  479.     In  Pennsylvania, 
there  are  numerous  and  strong  dicta  against  the  expediency  of  allowing  any 
limitation  of  the  carrier's  liability ;  see  per  Rogers,  J.,  in  Beckman  &  John- 
son V.  Shouse  et  al.,  5  Rawle,  179,  who  says,  that  when  notice  is  set  up, 
"not  only  the  notice  should  be  brought  home  to  the  employer,  but  also  that 
the  terms  of  the  notice  should  be  clear  and  explicit,  and  not  liable  to  the 
charge  of  ambiguity  or  doubt :"  per  the  same,  in  Eagle  v.  White,  6  Whar- 
ton, 505,  who  says,  it  is  a  principle  "  which  has  stood  the  test  of  experience, 
and  which  we  are  unwilling  to  see  frittered  away,  further  than  has  been 
already  done  in  those  cases  where  carriers  have  been,  as  I  think,  unwisely 
permitted  to  limit  their  own  responsibility  :"  per  G-ibson,  C.  J.,  in  Attwood 
V.  Ptcliance  Transportation  Co.,  9  Watts,  87,  who  says,  "The  maxim  that 
any  one  may  dispense  with  a  rule  provided  for  his  exclusive  benefit,  is  not 
without  its  exceptions,  and  notwithstanding  the  unfortunate  direction  given 
to  the  decisions  at  an  early  day,  it  is  still  almost  susceptible  of  a  doubt, 
whether  an  agreement  to  lessen  the  common-law  measure  of  a  carrier's 
responsibility,  like  an  agreement  to  forego  a  fee-simple  tenant's  right  of 
alienation,  or  a  mortgagor's  right  of  redemption,  is  not  void  by  the  policy  of 
the  law.     That  the  bailor  is  left  as  much  at  another's  mercy,  by  an  agree- 
ment like  the  present,  (excepting  "  dangers  of  the  navigation,  fire,  leakage, 
and  all  other  unavoidable  accidents,")  as  a  borrower  would  be  by  an  agree- 
ment to  turn  his  mortgage  into  a  conditional  sale,  is  entirely  evident  from 
the  fact  that  the  carrier  has  the  exclusive  custody  of  the  goods,  and  that  to 


278  smith's   leading   cases. 

convict  him  of  negligence  in  his  function,  would  be  as  impracticable  as  to 
convict  him  of  connivance  at  robbery,  against  which  the  common-law  rule 
of  his  responsibility  was  intended,  more  especially,  to  guard.  From  his 
servants,  who  are  usually  the  only  persons  that  can  speak  of  the  matter,  it 
would  be  idle  to  expect  testimony  to  implicate  themselves,  and  the  owner 
can  seldom  have  any  other  account  of  his  property  than  what  they  may 
choose  to  give  him.  Such  a  state  of  things  is  not  to  be  encouraged ;  and 
though  it  is,  perhaps,  too  late  to  say  that  a  carrier  may  not  accept  his 
charge  in  special  terms,  it  is  not  too  late  to  say  that  the  policy  which  dic- 
tated the  rule  of  the  common  law,  requires  that  exceptions  to  it  be  strictly 
interpreted,  and  that  it  is  his  duty  to  bring  his  case  strictly  within 
them."  These  remarks  were  relied  on  by  the  court,  in  Gould  and  others 
V.  Hill  and  others,  as  encouraging  them  to  come  to  the  conclusion  there 
reached.  The  case  of  Bingham  v.  Rogers,  6  Watts  &  Sergeant,  495, 
settles  nothing  on  this  point.  The  remark  in  Laing  v.  Colder,  8  Barr.  479, 
that  the  right  of  a  carrier  to  limit  his  liability  by  notice  was  expressly  de- 
cided by  Bingham  v.  Rogers,  and  that  this  must  now  be  taken  as  the  law  of 
that  state,  not  only  attaches  far  too  much  weight  to  the  rambling  and  un- 
certain discourse  of  the  judge  in  that  case,  which  was  an  action  for  negli- 
gence, and  not  on  the  custom,  but  is  itself  but  an  extrajudicial  dictum,  the 
action  in  Laing  v.  Colder  being  case  for  negligence,  whereby  injury  to  the 
person  and  goods  was  occasioned. 

The  inefficacy  of  notices,  whether  general  or  particular,  whether  pub- 
lished at  large,  or  brought  home  to  the  knowledge  of  the  party  concerned, 
in  limiting  the  responsibility  of  common  carriers,  ought  now,  fairly  to  be  con- 
sidered as  a  settled  principle  in  American  law.  It  i-emains  to  inquire  what 
principle  is  established  by  the  Supreme  Court  in  the  New  Jersey  Steam 
Navigation  Company  v.  The  Merchants'  Bank,  in  regard  to  the  eifect  of 
special  agreements.  In  that  case,  a  formal  contract  had  been  entered  into 
in  writing,  between  Harnden  and  the  Steam  Navigation  Company,  by  which 
in  consideration  of  paying  0250  a  month,  Harnden  was  to  have  the  privi- 
lege of  transporting  in  the  company's  boats  a  wooden  crate  of  certain  dimen- 
sions, contents  unknown.  The  agreement  comprised  sundry  mutual  stipu- 
lations, and  contained  a  condition  that  the  crate  and  its  contents  were 
always  to  be  at  the  exclusive  risk  of  Harnden,  and  that  the  company  were 
not  to  be  responsible  to  him  or  his  employers  for  any  losses.  The  contract 
was  originally  under  seal  for  a  fixed  period,  and,  upon  the  expiration  of  that 
time,  was  renewed  by  writing  not  under  seal,  for  another  definite  period. 
A  loss  by  fire  having  occurred  during  the  latter  term,  the  owners  of  the 
goods,  carried  by  Harnden,  sued  the  company,  not  upon^a  general  liability  as 
common  carriers,  but  upon  the  special  agreement  with  Harnden,  treating 
themselves  as  Harnden's  principals  in  that  agreement,  which  the  court  held 
that  they  might  do.  Founding  their  case  upon  the  agreement,  of  course 
they  were  bound  by  all  its  stipulations.  As  the  owners,  said  the  court, 
''claim  through  it,  they  must  affirm  its  provisions,  so  far  as  they  may  be 
consistent  with  law."  Here  was  an  executory  agreement,  of  a  general 
character,  entered  into  previously  to  the  tender  of  the  goods  to  the  can-ier 
for  transport,  creating  a  more  onerous  liability  than  that  imposed  by  the 
common  law,  because  it  deprived  the  carrier  of  his  right  to  be  informed  of 
the  nature  and  value  of  the  goods  carried;  and  this  was  set  up  and  sued 
upon  by  the  owner  as  the  ground  of  his  right  to  recover.     There  could  not 


COGOS     V.      BERNARD.  279 

be  a  doubt  of  the  right  of  the  currier  in  such  a  suit  to  avail  himself  of  the 
condition.  Whether,  a  common  carrier,  when  charged  upon  his  common 
law  responsibility,  can  discharge  himself  from  it  by  showing  a  condition  or 
agreement,  verbal  or  written,  assented  to  or  entered  into,  on  the  part  of  the 
owner,  by  accepting  a  bill  of  lading,  or  signing  a  memorandum,  at  the  time 
the  goods  are  delivered  to  the  carrier,  is  a  totally  diflferent  question,  and  is 
not  touched  by  the  decision  of  the  Supreme  Court  in  support  of  the  express 
ajireeraent  in  that  case. 

Policy  and  legal  principle  concur  in  requiring  that  all  such  restrictions, 
whether  in  the  form  of  an  exception  in  a  bill  of  lading,  or  of  a  note  sign- 
ed by  the  owner  on  delivering  the  goods,  should  be  deemed  nullities. 
The  fallacy  of  the  argument  in  favour  of  the  right  of  the  carrier  to  vary 
his  liability  by  introducing  conditions  into  his  acceptance  of  goods,  lies  in 
considering  the  carrier  as  an  insurer,  and  thence  inferring  that  his  liabi- 
lity is  voluntary,  and  arises  ex  contractu;  for  if  it  arose  from  contract, 
it  might  seem  liable  to  be  varied  by  contract.  In  result,  his  responsi- 
bility is  somewhat  like  an  insurer's ;  but  it  does  not  arise  in  the  same 
way,  and  in  its  legal  ground  and  nature,  is  wholly  different.  See  Gales  v. 
Hallman,  1  Jones,  516,  520.  It  is  a  responsibility  attached  by  law  to  the 
calling  or  employment  of  common  carrier  :  if  he  assumes  the  calling,  he 
has  no  power  over  the  duties  which  the  law  annexes  to  that  calling.  His 
assuming  the  character  of  a  common  carrier  depends  entirely  on  his  own 
will  and  assent :  but  if  he  undertakes  that  occupation,  the  liabilities  which 
come  upon  him  in  respect  to  goods  brought  to  him  to  be  carried,  are 
imposed  by  the  law,  and  not  created  by  his  assent  or  agreement.  The  law 
of  common  carriers  is  different  from  the  law  applicable  to  other  classes  of 
people.  They  are  recognised  by  the  law  as  peculiar  persons,  in  respect  to 
whom,  in  their  employment,  non-feasance  is  a  mis-feasance, — a  failure  to 
carry  and  deliver  safely  is  a  tort, — and  their  liability  is  enforced  by  an  action 
on  the  case.  Though  assumpsit  will  also  lie,  it  is  an  assumpsit  implied  and 
defined  by  the  law,  and  not  created  by  any  express  contract  of  the  carrier. 
The  ground  upon  which  the  invalidity  of  all  these  restrictions  attempted  to 
be  affixed  by  common  carriers  upon  their  legal  duties,  may  confidently  be 
affirmed,  is  this,  that  the  carrier  is  bound  to  carry  all  goods  that  are  tender- 
ed to  him  for  the  purpose,  and  is  liable  to  an  action  if  he  refuses.  He  13 
bound  to  carry  unconditionally,  and  under  the  full  responsibility  of  his 
common  law  duty ;  and  to  say,  then,  that  he  has  a  legal  right  to  prescribe  the 
terms  and  determine  the  liabilities  under  which  he  will  carry,  is  contradic- 
tory and  absurd.  The  law  which  imposes  a  definite  and  absolute  duty  upon 
him,  puts  him  under  an  incapacity  to  contract  in  derogation  of  that  duty. 
There  is  no  substantial  difference  between  mere  notices  published  by  a 
carrier,  and  special  agreements  entered  into  upon  the  delivery  of  the  goods 
to  him ;  and  to  allow  an  important  public  duty  to  be  defeated, — to  suffer  a 
great  principle  of  policy  and  justice  and  reason  to  be  circumvented — by  an 
empty  form  of  words,  imposed  by  one  man  who  has  no  right  to  propose 
them,  upon  another  who  has  no  power  to  repel  them, — would  be  a  reproach 
to  the  law.  In  these  cases  of  "  special  agreements,"  so  called,  there  is  no 
real  assent  to  the  new  contract  proposed  by  the  carrier  :  the  owner  accepts 
the  conditional  bill  of  lading,  or  signs  a  memorandum  discharging  the 
carrier,  because  he  cannot  help  it :  he  must  have  his  goods  carried,  and  he 
sees  that  the  carrier  will  refuse  them  unless  the  prescribed  terms  are  ac- 


280  smith's    leading   cases. 

ceptcd.  So  far  as  policy  and  convenience  are  concerned,  there  is  clearly  no 
distinction  between  mere  "  notices/'  and  these  "  special  agreements,"  and 
in  point  of  formal  and  legal  reasoning,  the  latter  are  without  any  effective 
value.  In  the  first  place,  if  the  carrier  is  in  law  bound  absolutely  to  carry 
the  goods  under  a  full  and  entire  liability,  the  owner's  agreement  to  remit  a 
part  of  this  liability  is  a  contract  wholly  without  consideration.  In  the  next 
place,  it  is  an  agreement  made  under  an  unlawful  compulsion.  In  the  third 
place,  the  carrier's  liability  is  not,  in  any  individual  case,  an  advantage 
introduced  for  the  benefit  only  of  the  party  concerned  in  that  case;  it  is  a 
principle  of  public  policy  established  for  the  convenience  of  society  and  the 
benefit  of  the  community  at  large ;  and  as  the  consent  of  any  one  person  to 
these  conditions  in  his  own  ease  tends  to  establish  a  custom  in  derogation  of 
the  interests  and  rights  of  the  public,  such  consent  should  be  deemed  unlawful 
and  void.  A  carrier's  special  acceptance,  therefore,  or  a  special  contract 
proposed  by  him  on  the  delivery  of  goods,  and  assented  to  by  the  owner, — 
whatever  form  or  name  may  be  given  to  it — ought  to  be  considered  as  a 
mere  notice,  lacking  the  essential  qualities  of  a  valid  contract :  and  the 
Supreme  Court  of  the  United  States,  which  upon  grounds  of  policy  has  con- 
demned such  notices,  cannot  rationally  stop  short  of  the  salutary  result 
arrived  at  by  the  Supreme  Court  of  New  York,  that  all  such  agreements  are 
void.  The  point  decided  in  the  New  Jersey  Steam  Navigation  Company  v. 
Merchants'  Bank  is  no  doubt  accurate  and  safe.  It  amounts  to  this  ;  that 
if  a  man,  in  advance  of  any  tender  of  goods  to  a  carrier  to  be  transported, 
voluntarily  enters  into  a  special  agreement  as  to  the  circumstances,  condi- 
tions and  terms,  upon  which  goods  shall  thereafter  be  carried,  he  is,  on  all 
occasions  on  which  he  deals  with  him  on  the  basis  of  that  contract,  bound 
by  its  provisions.  In  as  far  as  such  agreement  extends,  and  when  the  par- 
ties are  dealing  upon  the  footing  of  it,  it  may  truly  be  said,  that  "  the  carrier 
is  not  to  be  regarded  as  in  the  exercise  of  his  public  employment :"  such 
contract  is  collateral  to  his  ordinary  character  and  duty ;  and  is  a  source  of 
new  rights  and  liabilities,  not  inconsistent  with  his  implied  and  general  obli- 
gations, but  apart  from  them.  But  when  a  person  comes  with  goods  to  a 
carrier  to  be  transported  by  him,  he  means  to  deal  with  him,  and  the  other 
considers  himself  to  be  dealt  with,  as  a  common  carrier;  and  whatever  con- 
tracts may  then  be  made  in  limitation  of  his  liability  are  in  direct  and 
necessary  repugance  with  his  duty  and  calling  as  a  common  carrier. 

But  even  if  effect  be  given  to  notices  or  special  acceptances,  they  can 
only  operate  to  discharge  the  extraordinary  liability  of  the  carrier ;  and,  on 
the  authority  of  Alexander  and  others  v.  Greene  and  others,  3  Hill's  N.  Y. 
9,  to  discharge  them  from  the  liability  of  a  warehouseman,  or  other  bailee 
for  hire.  He  will  still  be  liable  to  any  losses  occasioned  by  bis  own  act  or 
fraud,  or  by  such  negligence  or  defective  means  as  would  render  an  unpaid 
agent  liable.  This  is  the  point  decided  in  Camden,  &c.,  Co.  v.  Burke,  13 
Wendell,  611,  before  the  doctrine  of  notice  was  wholly  rejected.  Such  is 
the  principle  asserted  in  Beckman  &  Johnson  v.  Shouse,  et  al.,  5  Rawle, 
179,  189.  In  New  Jersey  Steam  Navigation  Co.  v.  Merchants'  Bank,  6 
Howard's  S.  Ct.  344,  383,  the  Supreme  Court,  recognizing  this  as  estab- 
lished in  regard  to  notices,  decided  upon  a  similar  principle,  that  a  special 
contract  with  an  express  agent  that  the  goods  were  to  be  conveyed  at  his 
risk,  and  that  the  carriers  were  not,  in  any  event,  to  be  responsible  to  him 


COGGS     V.     BERNARD.  281 

or  liis  employers,  for  any  loss,  or  damage,  could  not  upon  any  fair  and  rea- 
sonable conbtruction,  be  regarded  as  stipulating  for  wilful  misconduct,  gross 
negligence,  or  want  of  ordinary  care,  either  in  the  seaworthiness  of  the  ves- 
sel, her  proper  equipments  and  furniture,  or  her  management  by  the  master 
and  hands.  It  was  there  held,  that  though  the  carrier  was  exempt  by  his 
agreement  from  those  losses  against  which  he  was  a  sort  of  insurer,  yet, 
inasmuch  as  he  had  undertaken  to  carry  the  goods  from  one  place  to  ano- 
ther, he  incurred  the  same  degree  of  responsibility  as  that  attached  to  a 
private  person,  engaged  casually  in  the  like  occupation,  and  was  bound  to 
use  ordinary  diligence  in  the  custody  and  delivery  of  the  goods,  and  to  pro- 
vide vehicles  and  means  of  transportation.  In  Thomas  v.  Boston  and  Pro- 
vidence Rail-Road  Corporation,  10  Metcalf,  472,  480,  the  court  seem,  also, 
to  have  been  of  opinion,  that  the  effect  of  notice,  at  the  most,  could  only  be 
to  discharge  the  extraordinary  liability  of  the  carrier,  and  to  put  him  on  the 
footing  of  an  ordinary  bailee  for  hire,  who  would  still  be  liable  for  loss 
occasioned  by  his  negligence  or  want  of  ordinary  care. 

While,  however,  these  exceptions  made  by  those  who  are  common  car- 
riers, are  generally  to  be  regarded  as  against  the  policy  of  the  law,  yet  there 
seems  to  be  some  obscurity  as  to  what  persons  are  common  carriers  in  this 
2Joi)it  of  view.  Without  opening  doubts  upon  this  part  of  the  law,  and  with- 
out going  into  the  principle  of  the  distinction,  it  seems  to  be  settled  and 
unquestionable,  that  the  liability  of  carriers  by  sea,  and  upon  the  great 
rivers,  may,  by  the  bill  of  lading,  be  limited,  at  least  to  the  extent  of  except- 
ing the  "  perils  of  the  navigation,"  the  meaning  of  which  is  explained  in  a 
former  part  of  this  note.  See  Putnam  v.  Wood,  3  Mass.  481 ;  SchiefFelin 
and  another  v.  Harvey,  6  Johnson,  170,  180 ;  and  New  Jersey  Steam  Navi- 
gation Company  v.  Merchants'  Bank,  6  Howard's  S.  Ct.  344,  382.  This  is 
a  trade  in  which  the  carrying  has  always  been  by  bill  of  lading,  and  that 
particular  exception  has  been  used  in  bills  of  lading  for  ages,  and  old  and 
universal  usage  may  be  considered  as  having  established  it  j  but  the  excep- 
tion of  fire,  leakage,  &c.,  now  frequently  used  in  bills  of  lading,  are  of 
modern  practice,  and  the  cases  do  not  authorise  their  being  deemed  valid. 
But  as  to  carriage  by  land  and  on  canals,  the  principle  of  Gould  and  others 
V.  Hill  and  others,  is  not  opposed  by  any  American  case. 

Common  carriers  may  be  sued  either  in  case  on  the  custom,  or  in  assumpsit 
on  their  contract,  and  the  action  chosen  will,  as  to  joinder  of  defendants,  be 
governed  by  its  own  rules;  M'Calla  v.  Forsyth,  4  Watts  &  Sergeant,  179; 
Zell  v.  Arnold,  2  Penrose  and  Watts,  292 ;  Hunt  v.  Wynn,  6  Watts,  47  ; 
Porter  et  al.  v.  Hildebrand,  2  Harris,  129,  132 ;  Smith  v.  Seward,  3  Barr, 
342  ;  Mershon  et  al.  v.  Hobensack,  2  Zabriskie,  373,  381 ;  Bank  of  Orange 
V.  Brown  and  five  others,  3  Wendell,  158,  where  the  subject  is  extensively 
examined.     See,  however,  Livingston  v.  Coxe,  6  Barr,  360. 

3.  Ordinary  paid  agents  and  unpaid  agents. 

All  the  other  cases  in  which  property  is  confided  to  the  possession  of 
another,  are  distinguishable  into  two  classes  ;  1.  Where  the  employee  is  a 
paid  agent :  2.  Where  he  is  not  paid.  The  conduct  of  an  employee  of 
either  class,  after  receiving  possession,  may  be  such  as  to  render  him  liable 
in  trover  for  the  conversion  of  the  goods,  or  in  case  or  assuinpsii  for  injury 
or  loss.     Before  speaking  of  the  specific  liabilities  of  the  two  classes  for 


282  smith's  leading  cases. 

injuries  or  loss  arising  from  their  breach  of  duty,  or  from  their  neglect,  it 
will  be  proper  to  consider  the  action  of  trover ;  for  the  same  principles  in 
respect  to  its  use,  apply  to  all  cases  in  which  property  is  lawfully  in  the 
possession  of  another;  that  is,  to  the  case  of  innkeepers,  carriers,  ordinary 
paid  agents  and  unpaid  agents,  finders,  &c.  (It  has  not  been  deemed  neces- 
sary to  take  notice  of  the  action  of  detinue,  because  the  other  actions  cover 
the  whole  ground  of  the  liability.) 

As  the  original  possession  is  rightful,  trover  will  not  lie,  unless  there  be 
a  conversion.  If  there  be  no  proof  of  a  positive  act  of  conversion,  there 
must  be  a  demand  and  refusal,  in  order  to  ground  the  action.  Ilosmer  v. 
Clarke,  2  Greenleaf,  308.  A  demand  and  refusal  is  prima  facie  evidence 
of  conversion ;  but  the  presumption  is  rebutted,  if  it  appear  that  the  property 
was  not  in  the  defendant's  possession  or  control  at  the  time,  but  was  lost 
or  stolen.  Lockwoodv.  Bull  &  Eager,  1  Cowen,  322  ;  Packard  v.  Getman, 
6  id.  757 ;  Hallenback  v.  Fish,  8  Wendell,  547,  relating  to  innkeepers, 
who  stand  precisely  as  common  carriers.  If  the  property  have  been  used 
by  the  defendant,  against  the  permission  expressed  or  implied  upon  the 
delivery,  or  sold,  or  delivered  to  another,  or  destroyed  by  the  defendant,  this 
is  a  conversion,  and  trover  is  the  remedy.  Murray  v.  Ogden  and  Burling, 
10  Johnson,  172;  Bullard  v.  Young,  3  Stewart,  46;  but  there  is  no  con- 
version, and  trover  will  not  lie,  where,  ■without  an  act  of  the  defendant, 
the  goods  have  been  lost,  or  have  been  stolen,  the  remedy  is  assumpsit  or 
case.  Packard  v.  Getman,  4  Wendell,  613  ;  Moses  et  al.  v.  Norris,  4  N. 
H.  304 ;  Hawkins  v.  Hoffman,  6  Hill,  586.  Nor  will  trover  lie  by  the 
bailor,  not  really  owning  the  goods,  where  the  bailee  has  delivered  them  to 
the  true  owner.  King  and  another  v.  Richards,  6  Wharton,  418.  Where 
things  have  been  loaned  or  hired  for  a  definite  purpose,  and  are  used  for 
another  purpose,  this  is  at  once  a  conversion,  and  trover  is  the  remedy.  In 
Wheelock  v.  Wheelright,  5  Massachusetts,  104,  it  is  decided  that  if  one 
hire  a  horse  to  go  to  a  certain  specified  distance,  and  he  go  further  and 
elsewhere,  this  is  a  conversion  ;  the  remedy  is  trover,  and  not  case ;  had 
the  horse  been  returned,  the  return  had  gone  to  the  reduction  of  the 
damages ;  being  killed,  the  plaintiff  was  entitled  to  recover  the  actual  value 
of  the  horse  at  the  time  of  the  conversion.  In  Homer  v.  Thwing  et  al.,  3 
Pickering,  492,  the  same  principles  are  established,  and  it  is  decided,  that 
under  the  same  circumstances,  trover  lies  against  an  infant.  In  Rotch  et 
al.  V.  Ilawes,  12  id.  136,  these  principles  are  approved:  but  it  is  held,  that 
if  the  owner  ratify  this  extension  of  the  original  hiring,  by  accepting  pay- 
ment for  the  whole,  this  is  equivalent  to  an  original  hiring  for  the  whole, 
and  trover  will  not  lie ;  but  case  will  lie  for  any  injury  done  to  the  horse. 
In  M 'Neils  v.  Brooks,  1  Yerger,  73,  it  is  decided  that  the  hirer's  carrying 
excessive  burdens  with  him  on  a  riding-horse  is  no  conversion  ;  for  any 
injury,  the  remedy  must  bo  case,  and  not  trover;  but  if  the  animal  had 
been  appropriated  to  a  different  use.  as  by  going  elsewhere,  it  had  been  a 
conversion. 

The  liability  of  paid  agents,-  where  there  has  been  no  conversion,  differs 
from  that  of  unpaid  agents.  As  to  the  former,  the  obligation  is  not,  as  in 
case  of  a  common  carrier,  to  carry,  or,  as  in  case  of  an  innkeeper,  to  heep  ; 
but  the  contract  is,  for  the  services  of  the  employee,  for  diligence  and  skill 
in  the  agency  or  work  undertaken  ;  and  the  liability  is,  for  want  of  diligence 


COaaS     V.   BERNARD.  283 

in  the  ordinary  duty  of  a  professional  person  of  the  kind  in  question,  or, 
which  is  the  same  thing,  for  negligence  in  the  ordinary  course  of  the  ser- 
vice ;  doing  or  omitting  what  ought  to  be  not  done,  or  done,  in  the  common 
routine  of  the  profession.  In  the  case  of  the  latter,  there  is  no  contract  at 
all ;  there  is  no  legal  liability  but  for  wrongful  conduct ;  for  negligence 
that  causes  mischief,  or  for  collusion;  for  what  the  law  denominates //-owtZ. 
In  both  it  is  believed,  that  the  legal  principle  and  measure  of  liability,  is 
not  in  any  degree  affected  by  the  fact  that  the  possession  of  the  property  is 
delivered  to  the  employee  ;  in  other  words,  that  hailment  is,  at  the  present 
day,  no  necessary  title  in  the  law.  As  respects  the  former  class,  the  duty 
or  liability  of  a  paid  agent,  to  whom  property  is  delivered,  as  a  warehouse- 
man, or  forwarding  agent,  is  the  same  as  that  of  a  person  employed  about 
property  in  the  possession  of  the  employer,  as  where  there  is  no  specific 
article  of  property  in  the  case,  as,  a  domestic  servant  or  out-door  servant,  an 
attorney,  a  physician,  a  commercial  agent.  As  respects  the  latter  class, 
though  the  ftict  of  delivery,  and  the  circumstances  attending  it,  may  strongly 
affect  the  evidence,  yet  the  legal  ground  and  principle  of  liability,  is  the 
same  where  an  unpaid  person  is  made  responsible  for  the  injury  or  loss  of 
property  in  possession  of  the  owner,  and  where  the  property  has  been  deli- 
vered into  his  possession. 

In  stating  their  liabilities,  the  two  classes  may  be  considered  separately. 

As  to  ordinary  paid  agents^  having  possession  of  goods,  it  has  been 
remarked  above,  that  the  contract  made,  and  the  duty  undertaken  by  them, 
is  to  give  skill  and  diligence  in  the  profession  or  business  undertaken ;  and 
to  know  the  extent  of  this,  reference  must  be  had  to  the  particular  profes- 
sion or  business  in  hand,  and  the  extent  of  labour  and  ability  ordinarily 
understood  to  be  required  by  it.  Insufficiency  of  means  or  skill,  and  want 
of  diligence,  according  to  the  ordinary  demands  of  the  business,  render  the 
party  liable.  Want  of  ordinary  diligence,  or,  which  is  the  same  thing,  ordi- 
nary negligence,  is  the  language  used  by  the  cases  in  defining  the  liability 
of  a  paid  agent:  see  Knapp  &  Curtis  v.  Root,  9  Wendell,  60;  Schmidt  & 
Webb  V.  Blood  &  Green,  id.  268 ;  &  Chenowith  &  Co.  v.  Dickinson  & 
Shrewsberry,  8  B.  Monroe,  156,  159;  and  Jones  v.  Hatchett  &  Bro.,  14 
Alabama,  743 ;  Hatchett  &  Bro.  v.  Gibson,  13  id.  588  ;  Forsythe  v.  Wal- 
ker, 9  Barr,  148 ;  cases  of  warehousemen ;  Caton  v.  Rumney,  13  id.  387, 
the  case  of  a  steamboat  towing  a  freight-boat;  Brown  v.  Denison,  2  id.  593, 
the  case  of  a  forwarding  merchant;  Ware  v.  Gay  and  others,  11  Pickering, 
106,  the  case  of  stage-owners'  liability  for  injuries  to  passengers  by  the 
breaking  down  of  the  coach,  where  it  was  held  that  insufficiency  in  the 
coach,  or  carelessness  in  conducting  it,  must  be  proved ;  and  Stokes  v.  Sal- 
tonstall,  13  Peters,  181,  is  to  the  same  effect;  M'Caw  v.  Kimbul,  4  M'Cord, 
220,  the  case  of  a  cotton-ginner ;  Newton  v.  Pope,  1  Cowen,  109,  the  case 
oC  one  hired  to  drive  horses.  In  Poote  v.  Storrs,  2  Barbour's  S.  C.  327, 
it  was  said  that  wharfingers  and  warehousemen  were  liable  only  for  common 
and  reasonable  care. 

The  attempts  made  by  some  of  the  judges  to  explain  to  the  jury  what  is 
meant  by  ordinary  neglect,  by  saying  that  it  is  the  degree  of  care  which  a 
prudent  man  takes  in  relation  to  his  own  affairs,  or  other  similar  periphrases, 
have  not  been  very  felicitous.  It  seems  to  be  strictly  right,  and  far  more 
intelligible  and  practical,  to  say,  as  was  decided  in  Moore  v.  The  Mayor,  &c. 


284  smith's   leading    cases. 

of  Mobile,  1  Stewart,  284,  to  be  correct,  that  a  paid  agent  is  liable,  if  negli- 
gent, and  not  liable,  if  not  negligent. 

The  action  against  a  paid  agent  may  be  either  assumpsit  or  case ;  the  con- 
tract is,  for  performing  what  is  the  legal  duty ;  and  a  breach  of  legal  duty 
is  a  fraud :  or,  as  stated  by  Tindal,  C.  J.,  in  pronouncing  the  judgment  of 
the  Exchequer  Chamber,  in  Boorman  v.  Brown,  3  Q.  B.  511,  52G,  "  the 
contract  creates  a  duty,  and  the  neglect  to  perform  that  duty,  or  the  non- 
feasance, is  a  ground  of  action  upon  a  tort."  See  M'Call  v.  Forsyth,  4 
Watts  &  Sergeant,  179  ;  Zellv.  Arnold,  2  Penrose  &  Watts,  292  ;  M'Cahan 
V.  Hirst,  7  Watts,  175;  How  v.  Cook,  21  Wendell,  29 ;  N.  J.  Steam  Nav. 
Co.  V.  Merchants'  Bank,  6  Howard  S.  Ct.  344,  411.  See  also  Swigert,  &c. 
v.  Graham,  7  B.  Monroe,  661,  662. 

In  Alexander  and  others  v.  Green  and  others,  3  Hill's  N.  Y.,  9,  it  is 
decided,  that  ordinary  paid  agents,  or  bailees  for  hire,  may  by  a  special 
agreement  or  acceptance,  discharge  themselves  from  their  implied  liability 
for  ordinary  diligence,  and  that  a  contract  to  tow  a  boat  "  at  the  risk  of  the 
master  or  owners  thereof,"  did  discharge  them  from  liability  for  "  every 
risk  arising  from  a  want  of  ordinary  care  and  skill ;"  but  that  no  man  can, 
by  any  contract,  discharge  himself  from  liability  for  his  fraudulent  acts.  The 
accuracy  of  this  case  is  very  doubtful;  the  exception  seems  directly  to  con- 
tradict and  repel  the  contract.  It  has  since  been  reversed  in  the  Court  of 
Errors.    7  Hill,  533. 

Unpaid  agents,  who  have  possession  of  the  property  of  others,  are  persons 
undertaking  to  keep,  or  carry,  or  perform  something  about  the  thing,  with- 
out reward ;  borrowers,  hirers, — for  though  a  hirer  pays  for  the  use  of  the 
article,  he  is  not  paid  to  take  care  of  it, — finders,  pawnees,  &c.  In  all  these 
cases  there  is  no  contract ;  and  if  there  has  been  no  conversion,  so  that  tro- 
ver will  not  lie,  the  only  remedy  for  loss  or  injury,  is  by  action  on  the  case. 
It  is  true  that  in  the  books  of  precedents,  we  find  in  respect  to  some  of 
these  persons,  especially  hirers,  declarations,  called  in  assumpsit  ;  but  a 
little  attention  to  these  declarations,  -will  show,  that,  efi'ectively,  they  are  in 
case.  They  are  mixed  declarations  and  have  a  double  aspect.  They  set 
out  an  assumpsit  for  reasonable  diligence ;  and  then  say  that  the  defendant 
did  not  perform  his  promise,  but,  on  the  contrary,  was  so  negligent,  &c.,  that 
by  reason  of  his  negligence,  &c.,  the  damage  or  loss  ensued, — a  clause  purely 
in  case.  Now,  even  if  any  court  would,  for  convenience,  sustain  such  a 
count  as  assumpsit, — which  even  the  laxest,  it  is  believed,  if  attention  were 
called  to  the  point,  could  not  do, — still  it  is  certain  that  the  latter  clause, 
charging  negligence  as  to  the  cause  of  damage  must  be  proved;  and,  there- 
fore, even  under  this  lax  style  of  declaring,  we  are  still  bound  to  say,  that 
no  conduct  will  render  the  defendant  liable,  but  such  as  will  sustain  a  count, 
or  clause  of  a  count,  in  case.  The  late  case,  indeed,  of  Garland  v.  Davis,  4 
Howard's  S.  Ct.  131,  143,  144,  appears  to  decide  that  all  such  declarations 
are  really  in  case,  and  that  non-assumpsit  is  a  bad  plea ;  and  see  also.  Smith 
V.  Seward,  3  Barr,  342,  345.  We  may,  therefore,  affirm,  almost  with  the 
certainty  of  fact,  and  with  a  confidence  which  no  dicta,  or  even  decisions, 
unless  those  decisions  have  first  altered  the  pleadings,  which  they  have  not 
done,  ought  to  disturb,  that  the  principle,  and  legal  ground  and  extent,  of 
an  unpaid  bailee,  or  person  to  whom  goods  are  delivered,  for  injury  or  loss 
to  the  goods,  is  the  same  as  that  of  one  to  whom  goods  have  not  been  deli- 


COGGS    V.     BERNARD.  285 

vered,  but  from  whose  negligence  or  carelessness,  injury  or  loss  has  ensued, 
while  the  goods  were  in  the  plaintiiF's  possession.  Here,  then,  is  a  legal 
definition — plain,  precise,  and  practical — of  the  liability  of  one  who  is  in 
possession  of  another's  property,  and  is  not  paid  for  his  services  ;  and  the 
particular  question  respecting  unpaid  bailees,  resolves  itself,  legally,  into 
the  more  general  inquiry.  What  is,  in  any  case,  necessary  to  sustain  an  action 
on  the  case  ?  In  the  notes  to  Scott  v.  Shepperd,  Ashby  v.  White,  and  Pas- 
ley  V.  Freeman,  (^infra,)  the  reader  will  find  some  illustrations  of  this  action. 
It  appears  that  case  will  lie  for  any  injury  resulting  from  the  fraudulent 
conduct  of  another,  and  any  conduct  is  fraudulent,  within  the  scope  of  this 
remedy,  which  is  necessarily  or  reasonably  the  cause  of  damage,  and  is  not 
requisite  to  the  enjoyment  of  the  defendant's  own  rights.  The  real  point  of 
inquiry  then  is,  whether  upon  the  whole  state  of  the  case,  from  the  begin- 
ning to  the  end  of  it,  the  defendant  is  fairly  responsible  as  the  legal  cause  of 
the  injury.  It  is  impossible  to  lay  down  any  general  rule  as  to  the  requi- 
site proximity  and  directness  of  the  defendant's  agency  in  the  mischief.  In 
Essex  Bank  v.  Gloucester  Bank,  17  Massachusetts,  1,  30,  there  is  an  able 
investigation  of  the  degree  of  directness  necessary  to  make  a  defendant's 
negligence  the  legal  and  actionable  cause  of  mischief.  It  may  be  observed, 
that  the  law,  when  it  is  led  on  by  the  scent  of  bad  faith  or  unfair  dealing, 
will  go  extremely  far  in  fixing  the  responsibility  of  causation  upon  a  defend- 
ant; and  any  one  who  will  familiarize  his  mind  with  the  principles  of  law, 
and  evidence,  and  reasoning,  embodied  in  such  cases  as  Pasley  v.  Freeman, 
will  have  no  difficulty  in  understanding  what  circumstances  will  make  an 
unpaid  bailee  liable.  We  learn  from  that  case,  and  those  which  have  fol- 
lowed it,  that  if  a  defendant  has  knowingly  made  false  representations  about 
the  circumstances  of  another,  and  the  plaintiff"  acting  upon  them,  has  suffered 
a  loss,  the  defendant  is  in  law  responsible,  as  the  legal  cause  of  that  loss.  If 
the  representations  or  promises  of  a  defendant  have  caused  or  induced  the 
plaintiif  to  put  his  property  into  the  defendant's  possession,  it  is  easy  to  see, 
that  if  his  subsequent  conduct  falsifies  those  promises  and  expectations,  and 
if  the  trusting  of  the  property  to  his  possession,  is,  upon  a  fair  view  of  the 
whole  case,  to  be  regarded  as  the  cause  of  an  injury  that  befalls  it,  though 
proceeding  from  the  agency  of  nature,  or  the  acts  of  third  persons,  the 
defendant's  false  representations  and  bad  faith,  may  justly  be  considered  the 
legal  and  fraudulent  cause  of  the  mjnvy,  but,  as  before  remarked,  every- 
thing must  depend  on  the  particular  circumstances.  Again,  if,  after  the 
property  is  in  the  defendant's  possession,  he,  by  positive  act,  exposes  it  in 
such  a  way  as  to  invite  and  bring  on  injury  from  third  persons,  he  will,  in 
many  cases,  be  properly  considered  as  the  cause  of  the  injury;  but,  here, 
also,  the  special  facts  and  motives  must  determine  whether  the  third  person 
is  to  be  made  wholly  responsible,  or  whether  the  defendant's  conduct  has  so 
far  induced  the  injurious  agency,  as  to  be  fairly  the  cause  of  it.  Finally,  if 
the  negligent  acts  of  the  defendant  have  directly  produced  the  damage,  and 
a  fortiori,  if  actual  fraud  on  his  part,  has  done  the  mischief,  he  is  liable  in  an 
action  on  the  case. 

We  find  it  frequently  laid  down,  that  an  unpaid  bailee  is  liable  only  for 
gross  negligence.  This,  it  will  be  observed,  is  not  a  legal  term ;  the  decla- 
ration charging  only  fraud,  or  careless  and  negligent  conduct,  producing 
damage :  it  is  an  expression  used  by  judges  and  text-writers,   to  explain 


286  smith's   leading  oases. 

what  is  meant  by  the  legal  terms  used  in  the  declaration.  If  actual  fraud, 
and  malignity  of  design,  is  the  point  of  the  case,  then  gross  negligence  must 
mean,  such  wanton  carelessness  as  satisfies  the  jury  of  such  corrupt  design  ; 
but  if — as  is  more  frequently  the  case, — actual  fraud  in  fact  cannot  be  in- 
ferred, then  negligence  must  bo  considered  gross  or  not,  according  to  the 
degree  in  which  it  is  the  cause  of  the  injury.  Nearly  all  the  confusion  and 
obscurity  which  belong  to  the  subject  of  bailments,  have  been  occasioned  by 
the  unfortunate  introduction  of  the  words  gross  and  slight  negligence,  which 
do  not  belong  to  our  law,  and  which  convey  no  precise  idea.  The  civil-law 
distribution  and  classification  of  these  liabilities,  is  entirely  different  from 
ours :  our  law  has  conceived  of  the  legal  obligations  and  duties  of  men,  in 
relation  to  their  neighbour's  property,  and  has,  by  this  action  on  the  case 
defined  them,  with  so  much  comprehension  and  precision,  that  the  same 
principle  applies  irrespectively  of  the  seat  of  the  possession. 

The  late  case  of  Wilson  v.  Brett,  11  Meeson  &  Welsby,  113,  forcibly 
illustrates  the  inapplicability  of  the  distinctions,  recited  by  Lord  Holt  from 
the  civil  law,  between  the  cases  where  the  bailment  is  exclusively  for  the 
benefit  of  the  bailor,  and  where  it  is  exclusively  for  the  benefit  of  the  bailee, 
or  where  it  is  for  the  joint  benefit  of  both ;  and  shows  that  in  regard  to  an 
unpaid  bailee,  the  liability  is  simply  for  negligence  under  the  circumstances 
of  the  case,  which  will  vary  with  the  skill  and  knowledge  which  the  bailee 
is  shown  to  possess ;  and  lioLrE,  B.,  observes  that  he  could  see  no  differ- 
ence between  negligence  and  gross  negligence, — that  it  was  the  same  thing, 
with  the  addition  of  a  vituperative  epithet.  See  also  the  remarks  of  Parke, 
B.,  in  Wyld  v.  Pickford,  8  id.  443,  461,  462,  and  of  Lord  Denman,  C.  J., 
in  Hinton  v.  Dibbin,  2  Q.  B.,  646,  661,  as  to  the  want  of  an  intelligible 
distinction  between  negligence  and  gross  negligence. 

It  may  be  proper  to  note,  that  where  money  is  the  subject  of  bailment, 
or  delivery  to  an  agent,  paid  or  unpaid,  assumpsit  is  the  proper  remedy ;  as- 
sumpsit in  the  form  of  money  had  and  recetwcfZ,  usually  being  in  case  oi  money, 
a  substitute  alike  for  trespass,  trover  and  case;  though,  as  a  substitute  for 
trover,  there  need  be  no  previous  demand.  See  Graves  et  al.  v.  Ticknor,  6 
New  Hampshire,  537,  and  Gordon  and  wife  v.  Camp,  2  Florida,  422,  428. 

Ir  has  been  stated  above,  that,  in  trover,  proof  of  demand  and  refusal, 
throws  upon  the  defendant  the  burden  of  proving  that  the  property  was  lost 
or  stolen.  In  case,  the  burden  of  proving  negligence  is  on  the  plaintiff. 
Harrington  v.  Snyder,  3  Barbour's  S.  Ct.  380,  383;  Foote  v.  Storrs,  2  id. 
327  ;  Ptunyan  v.  Caldwell,  7  Humphreys,  134 ;  Mims  v.  Mitchell,  1  Texas, 
440,  453.  Where  the  goods  have  not  been  returned  or  delivered  by  the 
defendant,  the  most  convenient  way  for  the  plaintiff  to  proceed,  appears  to 
be,  first,  to  make  a  demand,  and  then  to  bring  trover  and  case  :  the  demand 
and  refusal  will  cause  a  recovery  on  the  former  count,  unless  the  defendant 
prove  a  loss  or  theft ;  and  then  upon  the  latter,  the  plaintiff  will  recover  if 
he  prove  that  negligence  caused  the  loss;  but  the  burden  of  this  is  upon 
him.  In  Beckman  &  Johnson  v.  Shouse  et  al.,  5  Rawle,  179,  190,  in  as- 
sumpsit, against  one  liable  as  a  paid  agent,  it  is  said,  that  the  course  of  proof 
is  similar;  that  proof  of  the  contract  and  delivery,  puts  the  defendant  to 
prove  loss,  and  then  the  plaintiff  must  show  negligence ;  and  in  Clark  & 
Co.  V.  Spence,  10  Watts,  335,  337,  the  same  thing  is  said,  in  what  the  book 
calls  an  action  on  the  case.     This   disregard  of  the  forms  of  actions,  is  an 


I 


COQGS     V.    BERNARD.  287 

elegancy  believed  to  be  peculiar  to  Pennsylvania  practice.  If  a  hired  arti- 
cle is  returned  in  a  damaged  state,  and  the  hirer  will  give  no  explanation 
or  account  of  the  injury,  there  is  an  implication  of  negligence,  and  the  bur- 
den of  disproving  it  is  on  him ;  Logan  v.  Mathew,  6  Barr,  417. 

The  practical  deduction  from  this  consideration  of  the  remedies  which 
the  law  has  given  against  an  unpaid  bailee  is  this : — For  a  conversion  of 
the  goods,  he  is  liable  in  trover  j  for  an  injury  or  loss  he  is  liable  in  case  : 
and  when  the  latter  action  is  brought,  the  first  inquiry  is,  whether  upon  the 
whole  state  of  the  case  between  the  parties,  the  defendant's  conduct  can  be 
regarded  as  having  been  the  legal  cause  of  the  injury  or  loss ;  and  where 
there  is  evidence  of  a  bad  intention,  the  chain  of  causation  ought  to  be  car- 
ried back  very  far  :  the  next  inquiry  is,  whether  the  defendant  can  be  re- 
garded as  fraudulently  the  cause ;  and  any  conduct  is  fraudulent  in  law, 
which  the  defendant  might  reasonably  have  foreseen  would  produce  injury 
and  which  is  not  necessary  to  the  defendant's  enjoyment  of  his  own  rights; 
a  fortiori,  conduct  is  fraudulent  which  springs  from  a  bad  design. 

But,  lest  this  view  of  principles  should  be  erroneous,  and  mislead  the 
reader,  the  American  cases  are  here  briefly  appended. 

In  the  great  case  of  Foster  and  another,  Executors,  &c.  v.  The  Essex 
Bank,  17  Massachusetts,  479,  the  court  say,  that  in  case  of  a  deposit  to  be 
kept  without  reward,  "  the  bailee  will  be  answerable  only  for  gross  negli- 
gence, which  is  considered  as  equivalent  to  a  breach  of  faith,"  p.  498  ;  the 
bailor  "  shall  be  the  loser,  unless  the  person  in  whom  he  confided,  has  shown 
bad  faith,  in  exposing  the  goods  to  hazards,  to  which  he  would  not  expose 
his  own,"  p.  501 ;  "  the  depositary  is  answerable,  in  case  of  loss,  for 
gross  negligence  only,  ov fraud,  which  will  make  a  bailee  of  any  character 
answerable,"  p.  507  :  and  it  might  be  added,  would  make  any  body  liable, 
whether  a  bailee  or  not.  The  late  case  of  Whitney  and  Wife  v.  Lee,  8  Met- 
calfe, 91,  establishes  the  same  rule.  Stanton  and  Little  v.  Bell  &  Joiner,  2 
Hawks,  145,  was  the  case  of  a  mandatory,  gratuitously  undertaking  to  act 
about  certain  goods  for  the  benefit  of  the  bailor;  the  court  below  charged, 
«  that  the  defendants  were  bound  to  use  that  care  and  diligence  which  a  pru- 
dent and  discreet  man  would  use  relative  to  his  affairs  ;"  and  a  majority  of 
the  court  held  this  to  be  erroneous,  and  said,  that  this  rule  applied  to  a 
mandatary  who  acts  for  a  reward,  and  that  the  jury  should  have  been  in- 
structed, "  that  the  defendants  were  only  liable  for  fraud  or  gross  neglect ;" 
and  on  that  account  alone,  granted  a  new  trial.  In  Beardslee  v.  Kichard- 
son,  14  Wendell,  25,  the  court  said  that  a  mandatary  carrying  gratuitously 
a  sealed  letter,  containing  money,  was  liable,  in  case  only  for  gross  neglect: 
"  The  plaintiff,"  (per  Savage,  C.  J.)  "  was  bound  to  show  that  the  money 
was  lost  by  the  defendant's  negligence,  or  could  not  be  obtained  upon  request. 
Had  he  shown  a  demand  and  refusal,  the  defendant,  I  think,  would  have  been 
bound  to  account  for  the  loss,  and  to  indemnify  the  plaintiff,  unless  he  could 
show  the  property  lost  without  fault  on  his  part,  that  is,  without  gross 
negligence  ;"  the  meaning  of  the  learned  chief  justice  appears  to  have  been, 
that  if  the  plaintiff  could  prove  a  conversion,  of  which  a  demand  and  refu- 
sal would  be  prima  facie  evidence,  he  should  recover  the  value  in  damages ; 
(■but,  then,  according  to  Wheclock  v.  Wheelright,  5  Massachusets,  104,  the 
action  should  be  trover ;)  but  that  if  there  were  no  conversion,  then,  in  an 
action  on  the  case,  gross  neglect  must  be  proved.     Tompkins  v.  Saltmarsh, 


288  smith's   leading    cases. 

14  Sergeant  &  Rawle,  275,  was  assumpsit,  against  one  wlio  had  gratuitously 
undertaken  to  carry  a  letter  containing  money,  which  he  never  delivered ; 
the  court,  per  Duncan,  J.,  said,  that  in  such  a  case,  "  the  bailee  is  only  lia- 
ble for  'jross  nrjliyence,  dolo  proximus,  a  practice  equal  to  a  fraud.  It  is 
that  omission  of  care,  which  even  the  most  inattentive  and  thoughtless  men, 
never  fail  to  take  of  their  own  concerns."  In  Millon  v.  Salisbury,  13 
Johnson,  211,  it  was  held,  that  the  hirer  of  a  horse  was  not  liable,  when 
not  proved  guilty  of  ill  treatment,  or  conversion  to  another  use  ;  "  as  to  all 
accidents  naturally  incident  to  the  use  of  the  horse,  in  the  manner  contracted 
for,  the  law  imposes  the  risk  on  the  bailor ;"  and  this  is  confirmed  in  Har- 
rington v.  Snyder,  3  Barbour's  S.  Ct.  380,  382.  In  Hawkins  v.  Phythian, 
8  B.  Monroe,  515,  518,  the  court  said,  that  a  hirer  would  be  responsible 
only  for  want  of  ordinary  care,  which  is,  such  care  as  a  man  of  ordinary 
prudence  would  take  of  his  own  property.  In  Swigert,  &c.  v.  Graham,  7  Id. 
6C1,  the  court  investigated  the  ground  upon  which  the  hirer  of  a  slave  was 
liable  for  accidents  happening  to  him,  and  laid  down  the  following  general 
principles  ;  that  a  bailee  on  hire  is  bound  to  ordinary  diligence,  and  responsi- 
ble for  ordinary  neglect ;  but  ordinary  diligence  varies  not  only  with  the 
circumstances  of  the  case,  but  with  the  nature  of  the  subject;  and  what,  in 
respect  to  one  species  of  property,  might  be  gross  neglect,  might,  in  respect 
to  another,  be  extraordinary  care  ;  and  under  peculiar  circumstances  of  dan- 
ger, extraordinary  exertions  may  be  required  of  one  who  is  bound  only  to 
ordinary  diligence ;  or,  in  other  words,  the  circumstances  may  be  such  that 
extraordinary  exertions  are  nothing  more  than  ordinary  diligence ;  that  ordi- 
nary diligence  means  that  degree  of  care,  attention,  or  exertion,  which  under 
the  actual  circumstances,  a  man  of  ordinary  prudence  and  discretion  would  use 
in  reference  to  the  particular  thing,  were  it  his  own  property,  or  in  doing 
the  particular  thing  were  it  his  own  concern.  See,  also,  Mims  v.  Mitchell, 
1  Texas,  443,  453.  Todd  v.  Figley,  7  Watts,  542,  is  reported  in  too  vague 
a  manner,  to  enable  us  to  judge  what  principle  as  to  the  litibility  of  a  bor- 
rower is  decided  :  the  court  say,  he  is  liable  for  "  an  injury  happening  to 
the  mare  even  from  slight  neglect"  on  his  part ;  and  afterwards  they  appear 
to  approve  of  the  liability  being  rested  on  the  principle  that  any  neglect 
occasioning  the  injury,  would  render  him  answerable  :  and  upon  the  whole, 
the  decision  seems  to  be  rested  on  the  question,  whether  or  not  the  neglect 
of  the  defendant,  was  the  cause  of  the  injury.  In  Anderson  v.  Foresman, 
Wright's  Ohio,  598,  the  judge  told  the  jury,  that  one  carrying  money  with- 
out reward,  is  bound  to  take  the  same  care  of  it  that  he  does  of  his  own  ; 
but  in  Monteith  v.  Bissell's  Adm'r,  id.  411,  the  same  judge  said,  that  a 
bailee  of  money  without  reward,  is  not  liable  for  slight  neglect  but  only 
gross  neglect;  and  that  if  he  kept  the  money  where  he  kept  his  own,  he 
was  not  liable.  See  also  McLean  v.  Rutherford,  8  Missouri,  109.  In  Fel- 
lowes  &  Co.  V.  Gordon  &  Barnett,  8  B.  Monroe,  415,  416,  the  court  said 
that  gratuitous  bailees,  having  undertaken  the  commission  and  proceeded  in 
its  execution,  were  ''  bound  to  proceed  with  reasonable  care  and  diligence, 
according  to  the  terms  of  the  mandate."  In  Tracy  et  al.  v.  Wood,  3  Ma- 
son, 132,  the  case  of  one  gratuitously  carrying  two  bags  of  money,  Mr. 
Justice  Story,  in  charging  the  jury  said  :  <<  I  agree,  that  in  cases  of  bailees 
without  reward,  they  are  liable  only  for  gross  negligence.  The  language  of 
the  books  as  to  what  constitutes  gross  negligence,  or  not,  is  sometimes  loose 


OOOaS    V.     BERNARD.  289 

and  inaccurate,  from  tlie  general  manner  in  wbicb  propositions  are  stated. 
When  it  is  said,  that  gross  negligence  is  equivalent  to  fraud,  it  is  not  meant, 
that  it  cannot  exist  without  fraud.     There  may  be  very  gross  negligence, 
in  cases  where  there  is  no  pretence  that  the  party  has  been  guilty  of  fraud ; 
though  certainly  such  negligence  is  often  presumptive  of  fraud.     It  appears 
to  me,  that  the  true  way  of  considering  cases  of  this  nature,  is,  to  consider 
whether  the  party  has  omitted  that  care  which  bailees,  without  hire,  or  man- 
dataries of  ordinary  prudence,  usually  take  of  property  of  this  nature.     If 
he  has,  then  it  constitutes  a  case  of  gross  negligence.     The  question  is  not, 
whether  he  has  omitted  that  care,  which  very  prudent  persons  usually  take 
of  their  own  property,  for   the  omission  of  that  would  be  but  slight  negli- 
gence ;  nor  whether  he  has  omitted  that  care  which  prudent  persons  ordina- 
rily take  of  their  own  property,  for  that  would  be  but  ordinary  negligence. 
But  whether  there  be  a  want  of  that  care,  which  men  of  common  sense, 
however  inattentive,  usually  take,  or  ought  to  be  presumed  to  take,  of  their 
property,  for  that  is  gross  negligence.      The  contract  of  bailees  without 
reward,  is  not  merely  for  good  faith,  but  for  such  care  as  persons  of  common 
prudence  in  their  situation  usually  bestow  on  such  property. — If  they  omit 
such  care,  it  is  gross  negligence."     This  was  a  bailment  of  money,  of  which, 
said  the  learned  judge,  much  greater  care  is  always  taken,  than  of  other 
things.     "  He  kept  his  own  money  in  the  same  valise,  and  took  no  better 
care  of  it  than  of  the  plaintiff's.     Still  if  the  jury  are  of  opinion,  that  he 
omitted  to  take  that  reasonable  care  of   the  gold,  which  bailees  without 
reward  in  his  situation  usually  take,  or  which  he  himself  usually  took  of 
such  property,  under  such  circumstances,  he  has  been  guilty  of  gross  negli- 
gence."    See  other  cases  cited  in  note  to  Wilson  v.  Brett,  11  M.  &  W.  113, 
116. 

It  was  observed  before,  that  the  phrases  gross  negligence,  and  slight  neg- 
ligence, are  not  legal  terms,  but  are  used  by  judges  to  explain  the  legal 
language  in  the  declaration ;  and  it  would  seem,  that  unless  they  do  express 
the  common  law  notion  of  actionable  negligence,  more  clearly  and  without 
error,  they  had  better  be  disused.     Now  it  is  clear  from  the  above  cases, 
especially  Tracy  et  al.  v.  Wood,  that  the  term  yross  negligence,  is  not  to  be 
taken  in  its  ordinary  and  every-day  meaning:  it  appears  from  Tracy  et  al. 
v.  Wood,  that  it  is  a  technical  and  artificial  phrase,  the  meaning  of  which  it 
is  almost  impossible  to  define  with  precision.    Tracy  et  al.  v.  Wood,  implies 
that  the  definition  of  gross  negligence,  given  in  the  cases  from  Wright's 
Ftcports,  and  one  of  the  definitions  given  in  Foster,  &c.  v.  The  Essex  Bank, 
that  gross  negligence  is,  the  exposing  the  property  to  hazards,  to  which  the 
defendant  would  not  expose   his  own,  is  erroneous.     But,  so  difficult  and 
perplexing  is  this  phrase,  that  the  learned  judge  in  Tracey  et  al.  v.  Wood, 
has  given  not  less  than  five  clearly  different  explanations,  or  rules  to  guide 
the  jury.     He  first  defines  it,  the  want  of  that  care  which  unpaid  bailees, 
of  ordinary  prudence,  usually  take  of  bailed  property  :   then,  of  that  care, 
which  men  of  common  sense,  however  inattentive,  usually  take  of  their  own 
property  :  next,  the  care  which  such  men  ought  to  be  presumed  to  take  of 
their  own  property  :  then  it  is,  the  reasonable  care  which  unpaid  bailees 
usually  take  of  bailed  property :  and  then,  that  reasonable  care  which  he 
himself  usually  took  of  bailed  property.     Without  being  too  critical,  it  may 
certainly  be  said,  that  in  each  of  these  sentences,  a  different  rule  is  given  : 
Vol.  I.— 19 


290  smith's   leading   cases. 

and  that  all  of  them  are  too  vague  and  general,  to  be  capable  of  application 
by  a  jury.  It  is  believed,  that  the  common  law  principle  set  out  in  the 
nature  of  the  action,  that  any  negligent  conduct  which  causes  injury  or  loss, 
or  which  satisfies  the  jury  that  there  has  been  fraud  and  collusion,  is  action- 
able, explains  itself  more  cleary,  than  these  various  definitions  explain  it. 
The  expressions  convey  so  indefinite  a  meaning,  that  we  find  Lord  IIoLT 
saying,  that  a  hirer  and  borrower,  are  both  liable  for  slight  negligence,  and 
Sir  W.  Jones,  and  Mr.  Justice  Story,  maintaining,  that  a  borrower  is  liable 
for  slight  negligence,  and  a  hirer  only  for  gross  negligence.  To  what  test 
are  these  differences  to  be  submitted,  and  by  what  arbiter  decided?  There 
is  none  but  the  form  of  the  pleadings.  The  action  against  both  is  the 
same,  and  charges  negligent  conduct  occasioning  injury  or  loss :  from  which 
it  appears,  that  the  older  judge  is  right,  in  saying  that  the  same  degree  of 
negligence  will  make  both  liable  ('with  which  Blackstone  agrees) :  and 
also  in  saying,  that  slight  negligence,  or  any  negligence,  if  it  bo  the  legal 
cause  of  the  injury  or  loss,  will  make  them  liable. 

H.  B.  W. 


[*10o]     *ASHBY   V.    WHITE    ET    ALIOS. 

TRINITY.— 2  ANN^. 
[REPORTED,  LORD  RAYMOND,  938.] 

A  man  who  has  a  right  to  vote  at  an  election  for  members  of  parliament  may 
maintain  an  action  against  the  returning  officer  for  refusing  to  admit  his  vcte, 
though  his  right  was  never  determined  in  parliament,  and  though  the  persons 
for  whom  he  offered  to  vote  were  elected. («) 

Buckinghamshire,  to  wit.  Matthias  Ashby  complains  of  William 
White,  Richard  Talbois,  William  Bell,  and  Richard  Hcydon,  being  in  the 
custody  of  the  marshal  of  the  Marshalsea  of  the  lord  the  king,  before  the 
king  himself,  for  that,  to  wit,  That  whereas  on  the  26th  day  of  November, 
in  the  12th  year  of  the  reign  of  the  lord  the  now  king,  a  certain  writ  of  the 
said  lord  the  now  king,  issued  out  of  the  Court  of  Chancery  of  him  the  said 

{a)  [S.  C.  Salk.  19.  3  Salk.  17.  Holt,  524.  6  Mod.  45.  Vide  1  Bro.  Pari.  Cas.  47. 
8  St.  Tr.  89.  Somewhat  similar  to  tills  action  is  that  of  Peering  v.  Harris,  2  Moo.  &  Rob.  5, 
against  an  overseer  for  malicious-Iy  omitting  a  parishioner's  name  from  the  rate,  per  quod 
she  was  unable  to  obtain  a  beer  liecnse.  So,  against  a  sheriff  for  delaj-ing  to  cxeeule  a 
writ,  per  quod  the  plaintiff  incurred  unnecessary  costs.  Mason  v.  Payntcr,  1  Q.  B.  974. 
So,  against  an  officer  of  customs,  for  refusing  to  sign  a  bill  of  entry,  without  payment  of  an 
excessive  duty,  Barry  v.  Arnaud,  10  Ad.  &  EI.  64C.  See  as  to  an  action  against  a  clergy- 
man for  refusing  to  marry,  Davis  v.  Black,  1  Q.  B.  900.] 


ASHBY     V.     WHITE     ET     ALIOS.  291 

lord  the  now  king,  at  Westminster,  in  the  county  of  Middlesex,  directed  to 
the  then  sheriff  of  Buckinghamshire  aforesaid,  reciting  that  the  said  lord  the 
king,  by  the  advice  and  assent  of  his  council,  for  certain  arduous  and  urgent 
business  concerning  him  the  said  lord  the  king,  the  state,  and  the  defence 
of  his  realm  of  England,  and  of  the  church  of  England,  had  ordained  his 
certain  parliament  to  be  holden  at  his  city  of  Westminster,  on  the  6th  day 
of  February,  then  next  coming,  and  there  with  the  prelates,  nobles,  and 
peers  of  his  said  kingdom,  to  have  discourse  and  treaty,  the  said  lord  the 
now  king  commanded  the  then  sheriff  of  Buckinghamshire,  by  the  said  writ 
firmly  enjoining,  that,  having  made  proclamation  in  his  next  said  county 
court  after  the  receipt  of  the  same  writ  to  be  holden,  of  the  day  and 
place  aforesaid,  two  knights,  girded  with  swords,  the  most  fitting  and  dis- 
creet of  the  county  aforesaid,  and  of  every  city  of  that  county  *two  prj^-iAf-i 
citizens,  and  of  every  borough  two  burgesses  of  the  more  discreet  L 
and  most  sufiicient,  should  be  freely  and  indifferently  chosen  by  those 
whom  such  proclamation  should  concern,  according  to  the  form  of  the  stat- 
ute thereupon  made  and  provided,  and  the  names  of  the  said  knights,  citi- 
zens, and  burgesses,  so  to  be  chosen,  to  be  inserted  in  certain  indentures 
thereof,  to  be  made  between  him,  the  then  sheriff,  and  those  who  should 
be  concerned  at  such  election  (although  such  persons  to  be  chosen  should 
be  present  or  absent),  and  should  cause  them  to  come  at  the  said  day  and 
place;  so  that  they  the  said  knights,  citizens,  and  burgesses,  might  severally 
have  full  and  sufficient  power  for  themselves  and  the  commonalty  of  the 
county,  cities,  and  borough  aforesaid,  to  do  and  consent  to  those  things 
which  should  then  happen  to  be  ordained  there  of  the  common  council  of 
the  said  realm  of  him  the  said  lord  the  now  king  (by  Grod's  assistance), 
upon  the  business  aforesaid;  so  that  for  want  of  such  power,  or  because  of 
an  improvident  election  of  the  knights,  citizens,  and  burgesses  aforesaid,  the 
said  businesses  might  not  in  any  wise  remain  undone;  and  should  certify, 
without  delay,  that  election  made  in  the  full  county  of  him  the  then  sheriff, 
distinctly  and  openly,  under  his  seal,  and  the  seals  of  those  who  should  be 
concerned  at  that  election,  to  the  said  lord  the  now  king,  in  his  Chancery, 
at  the  said  day  and  place ;  sending  to  him  the  said  lord  the  king,  the  coun- 
terpart of  the  indenture  aforesaid,  sewed  to  the  same  writ,  together  with  that 
writ;  which  said  writ,  afterwards,  and  before  the  6th  day  of  February  in 
the  writ  aforesaid  mentioned,  to  wit,  on  the  29th  day  of  December,  in  the 
twelfth  year  abovesaid,  at  the  borough  of  Aylesbury,  in  the  said  county  of 
Bucks,  was  delivered  to  one  Robert  Weedon,  Esq.,  then  sheriff  of  the  same 
county  of  Bucks,  to  be  executed  in  form  of  law;  by  virtue  of  which  said 
writ,  the  aforesaid  Robert  Weedon,  being  then  and  there  sheriff  of  the 
county  of  Bucks  aforesaid,  as  before  is  set  forth,  afterwards  and  before  the 
aforesaid  6th  day  of  February,  to  wit,  on  the  oOth  day  of  December,  in  the 
12th  year  abovesaid,  at  the  borough  of  Aylesbury  aforesaid,  in  the  said 
county  of  Bucks,  made  his  certain  precept  in  writing,  under  the  seal  of  him 
the  said  Robert  Weedon,  of  his  office  of  sheriff  of  the  county  of  Bucks 
aforesaid,  directed  to  the  constables  of  the  borough  of  Aylesbury  aforesaid, 
reciting  *the  day  and  place  of  the  parliament  aforesaid  to  be  holden,  j-n:]^^-! 
thereby  requiring  them  and  giving  to  them  in  command,  that  having  L  -I 
made  proclamation  within  the  borough  aforesaid  of  the  day  and  place  in  the 
same  precept  recited,  they  should  cause  to  be  freely  and  indifferently  chosen 


292  smith's   leading   cases. 

two  burgesses  of  that  borougli,  of  the  more  discreet  and  most  sufficient,  by 
those  vrhom  such  proclamation  should  concern,  according  to  the  form  of  the 
statutes  in  such  cases  made  and  provided,  and  the  names  of  the  said  bur- 
gesses so  elected  (although  they  should  be  present  or  absent)  to  be  inserted 
in  certain  indentures  between  the  said  sheriflF  and  those  who  should  have 
interest  in  such  election ;  and  that  he  should  cause  them  to  come  at  the  day 
and  place  in  the  same  precept  recited,  so  that  the  said  burgesses  might  have 
full  and  sufficient  power  for  themselves  and  the  commonalty  of  the  borough 
aforesaid,  to  do  and  consent  to  those  things  which  should  then  happen  to  be 
ordained  there  of  the  common  council  of  the  said  realm  (by  Grod's  assistance) 
upon  the  business  aforesaid;  so  that  for  want  of  such  power,  or  because  of 
an  improvident  election  of  the  burgesses  aforesaid,  the  said  businesses  might 
not  remain  undone ;  and  that  they  should,  without  delay,  certify  the  elec- 
tion to  him  the  said  then  sheriff,  sending  to  the  same  sheriflF  the  counterpart 
of  the  indenture  aforesaid  annexed  to  the  said  precept,  that  he  the  said 
sheriff  might  certify  the  same  to  the  said  lord  the  king  in  his  Chancery  at 
the  day  and  place  aforesaid,  which  said  precept  afterwards  and  before  the 
said  6th  day  of  February,  to  wit,  on  the  same  30th  day  of  December  in  the 
year  abovesaid,  at  the  borough  of  Aylesbury  aforesaid,  in  the  said  county  of 
Bucks,  was  delivered  to  them  the  said  William  White,  Richard  Talbois, 
William  Bell,  and  Richard  Ileydon,  then,  and  until  after  the  return  of  the 
same  writ,  being  constables  of  the  borough  of  Aylesbui'y  aforesaid,  to  be 
executed  in  form  of  law;  to  which  said  William  White,  Richard  Talbois, 
William  Bell,  and  Richard  Heydon,  by  reason  of  their  office  of  constables 
of  the  borough  aforesaid;  the  execution  of  that  precept  of  right  did  then  and 
there  belong :  by  virtue  of  which  said  precept,  and  by  force  of  the  writ 
aforesaid,  they  the  said  burgesses  of  the  borough  of  Aylesbury,  being  in 
that  behalf  duly  forewarned,  afterwards  and  before  the  6th  day  of  February, 
r*inQl  *°  ^^^'  °^  ^^^  ^^^  ^^y  of  January  in  the  12th  year  aforesaid,  at  the 
L  -^  *borough  of  Aylesbury  aforesaid,  before  them  the  said  William 
White,  Richard  Talbois,  William  Bell,  and  Richard  Heydon,  the  constables 
aforesaid,  were  assembled  to  elect  two  burgesses  for  the  borough,  according 
to  the  exigency  of  the  writ  and  precept  aforesaid,  and  during  that  assembly, 
to  that  intention,  and  before  such  two  burgesses,  by  virtue  of  the  writ  and 
precept  aforesaid,  were  elected,  to  wit,  on  the  day  and  year  last  abovesaid, 
at  the  borough  of  Aylesbury  aforesaid,  in  the  county  aforesaid,  he,  the  said 
Matthias  Ashby,  then  and  there,  being  a  burgess  and  an  inhabitant  of  the 
borough  aforesaid,  and  not  receiving  alms  there  or  any  where  else,  then  or 
before,  but  being  duly  qualified  and  entitled  to  give  his  vote  for  the  choos- 
ing of  two  burgesses  for  the  borough  aforesaid,  according  to  the  exigency  of 
the  writ  and  precept  aforesaid,  before  them  the  said  William  White,  Richard 
Talbois,  William  Bell,  and  Richard  Heydon,  the  four  constables  of  that 
borough,  to  whom  then  and  there  it  did  duly  belong  to  take  and  allow  the 
vote  of  him  the  said  Matthias  Ashby,  of  and  in  the  premises,  was  ready  and 
offered  to  give  his  vote  for  choosing  Thomas  Lee,  bart.  and  Simon  Mayne, 
Esq.,  two  burgesses  for  that  parliament,  by  virtue  and  according  to  the  exi- 
gency of  the  writ  and  precept  aforesaid  ;  and  the  vote  of  him,  the  said  Mat- 
thias, then  and  there  of  right  ought  to  have  been  admitted ;  and  the  aforesaid 
William  White,  Richard  Talbois,  William  Bell,  and  Richard  Heydon,  so 
being  then  and  there  constables  of  the  borough  aforesaid,  were  then  and  there 


ASHBY     V.      WHITE     ET     ALIOS.  293 

requested  to  receive  and  allow  the  vote  of  him  the  said  Matthias  Ashby, 
in  the  premises ;  nevertheless  they,  the  said  William  White,  Richard  Tal- 
bois,  William  Bell,  and  Richard  Ileydon,  being  then  and  there  constables 
of  the  borough  aforesaid,  well  knowing  the  premises,  but  contriving,  and 
fraudulently  and  maliciously  intending  to  damnify  him  the  said  Matthias 
Ashby,  in  this  behalf,  and  wholly  to  hinder  and  disappoint  him  of  his  privi- 
lege of  and  in  the  premises,  did  then  and  there  hinder  him,  the  said 
Matthias  Ashby,  to  give  his  vote  in  that  behalf,  and  did  then  and  there 
absolutely  refuse  to  permit  him,  the  said  Matthias  Ashby,  to  give  his  vote 
for  choosing  two  burgesses  for  that  borough  to  the  parliament  aforesaid,  and 
did  not  receive,  nor  did  they  allow  the  vote  of  him,  the  said  Matthias  Ashby, 
for  that  election:  and  two  burgesses  of  *that  borough  were  elected  p-^inn-i 
for  the  parliament  aforesaid  (he,  the  said  Matthias  Ashby,  being  L  -• 
excluded,  as  before  is  set  forth)  without  any  vote  of  him,  the  said  Matthias 
Ashby,  then  and  there,  by  virtue  of  the  writ,  and  prec3pt  aforesaid,  to  the 
enervation  of  the  aforesaid  privilege  of  him,  the  said  Matthias  Ashby,  of 
and  in  the  premises  aforesaid:  whereupon  the  said  Matthias  Ashby  saith 
that  he  is  injured,  and  hath  sustained  damage  to  the  value  of  200/.,  and 
thereupon  he  brings  suit,  &c.     Not  guilty.     Verdict  for  the  plaintiff. 

Kote. — Judgment  was  arrested  in  B.  R.  by  three  judges  against  Holt. 
But  on  the  14th  of  January,  1703,  this  judgment  was  reversed  in  the  House 
of  Lords,  and  judgment  given  for  the  plaintiff  by  fifty  lords  against  sixteen. 
After  a  verdict  for  the  plaintiff  on  not  guilty  pleaded,  it  was  moved  in 
arrest  of  judgment  by  Serjeant  Whitaker,  that  this  action  was  not  maintaina- 
ble. And  for  the  difficulty,  it  was  ordered  to  stand  in  the  paper,  and  was 
argued  Trin.  1  Q.  Anne  by  Mr.  Weld  and  Mr.  Montague  for  the  defendants, 
and  this  terra  judgment  was  given  against  the  plaintiff,  by  the  opinion  of 
Powell,  Powys,  and  Gould,  justices.  Holt,  chief  justice,  being  of  opinion  for 
the  plaintiff. 

Gould,  J. — I  am  of  opinion,  that  judgment  ought  to  be  given  in  this  case 
for  the  defendants,  and  I  cannot  by  any  means  be  reconciled  to  give  my 
judgment  for  the  plaintiff,  for  there  are  no  footsteps  to  warrant  such  an 
opinion,  but  only  a  single  case.  I  am  of  opinion,  that  this  action  is  not 
maintainable  for  these  four  reasons  ;  first,  because  the  defendants  are  judges 
of  the  thing,  and  act  herein  as  judges  :  secondly,  because  it  is  a  parliamen- 
tary matter,  with  which  we  have  nothing  to  do  :  thirdly,  the  plaintiff's  pri- 
vilege of  voting  is  not  a  matter  of  property  or  profit,  so  that  the  hindrance  of  it  is 
merely  damnum  sine  injuria:  fourthly,  it  relates  to  the  public,  and  is  a 
popular  offence. 

As  to  the  first,  the  king's  writ  constitutes  the  defendant  a  judge  in  this 
case,  and  gives  him  power  to  allow  or  disallow  the  plaintiff's  vote.  For  this 
reason  it  is,  that  no  action  lies  against  a  sheriff  for  taking  insufficient  bail, 
because  he  is  the  judge  of  their  sufficiency.  So  is  the  case  of  Medcalf  v. 
Hodgson,  Hutt.  120,  and  their  sufficiency  is  not  traversable,  1  Lev.  86, 
Bentley  v.  Hore.  Upon  the  same  reason  the  resolution  of  the  court  is  founded 
in  the  case  of  Hammond  v.  Howell,  2  Mod.  218,  that  no(a)  action  i-^iia-i 
lies  *against  a  man  for  what  he  does  as  a  judge.  9  Hen.  G,  CO,  p.  9.   L 

2.  This  is  a  parliamentary  matter,  and  the  parliament  is  to  judge  whether 
the  plaintiff  had  a  right  of  electing  or  not  5  for  it  may  be  a  dispute,  whether 

(a)  Vide  L   Rav.  454. 


294  smith's    leading   cases. 

the  right  of  election  be  in  a  select  number  or  in  the  populace;  and  this  is 
proper  for  the  parliament  to  determine,  and  not  for  us  :  and  if  we  should 
take  upon  us  to  determine  that  he  has  a  right  to  vote,  and  the  parliament 
be  of  opinion  that  he  has  none,  an  inconvenience  would  follow  from  contrary 
judgments.  So  in  2  Vent.  87,  Onslow's  case,  it  is  adjudged  that  no(/>)  action 
lies  for  a  double  return  of  members  to  serve  in  parliament.  The  resolution 
of  the  King's  Bench  in  the  case  of  Barnardiston  v.  Soame,  2  Lev.  114,  was 
given  on  this  particular  reason,  that  there  had  been  a  determination  before 
in  parliament  in  favour  of  the  plaintiff.  And  Hale  said,  we  pursue  the  judg- 
ment of  the  parliament;  but  the  plaintiff  would  have  been  too  early,  if  he 
had  come  before;  and  yet  that  judgment  was  reversed. 

3.  It  is  not  any  matter  of  profit,  either  in prsesenti  or  infutiiro.  To  raise 
an  action  upon  the  case,  both  damage  and  injury  must  concur,  as  is  the  case 
of  19  Hen.  6,  44,  cited  Hob.  2G7.  If  a  man  forge  a  bond  in  another's  name 
no  action  upon  the  case  lies,  till  the  bond  be  put  in  suit  against  the  party; 
so  here,  it  may  be  this  refusal  of  the  plaintiff's  vote  may  be  no  injury  to  him 
according  as  the  parliament  shall  decide  the  matter  :  for  they  may  adjudge, 
that  he  had  no  right  to  vote,  whereby  it  will  appear,  the  plaintiff  was  mis- 
taken in  his  opinion  as  to  his  right  of  election,  and  consequently  has  sus- 
tained no  injury  by  the  defendant's  denying  to  take  his  vote. 

4.  It  is  a  matter  which  relates  to  the  public,  and  is  a  kind  of  popular 
offence,  aud  therefore  no  action  is  given  to  the  party;  for  by  the  same  reason 
one  man  may  bring  an  action,  a  hundred  may,  and  so  actions  infinite  for 
one  default;  which  the  law  will  not  allow,  as  is  agreed  in  William's  case,  5 
Co.  73  a,  and  104  b.  Boulton's  case.  Perhaps,  in  this  case,  after  the  par- 
liament have  adjudged  the  plaintiff  has  a  right  of  voting,  an  information 
may  lie  against  the  sheriff  for  his  refusal  to  receive  it.  So  the  case  of  Ford 
V.  Hoskins,  2  Cro.  368.  2  Brownl.  194.  Such  an  action  as  this  was  never 
r*1 1 1 T  b'^'o^g^t  before,  and  therefore  shall  ^be  taken  not  to  lie,  though  that 
L  -"be  not  a  conclusive  reason.  As  to  the  case  of  Sterling  v.  Turner, 
2  Lev.  50,  2  Vent.  50,  where  an  action  was  brought  by  the  plaintiff,  who 
was  candidate  for  the  place  of  bridge-master  of  London,  for  refusing  him  a 
poll,  and  adjudged  maintainable,  there  is  a  loss  of  a  profitable  place.  So 
the  case  of  Herring  v.  Finch,  2  Lev.  250,  where  the  plaintiff  brought  an 
action  on  the  case  against  the  defendant,  for  that  the  plaintiff  being  a  free- 
man, wdio  had  a  voice  in  the  election  of  mayor,  the  defendant  being  the 
present  mayor,  refused  to  admit  his  voice;  in  that  case  the  defendant  is 
guilty  of  a  breach  of  his  faith  :  and  in  both  these  cases  the  plaintiff  has  no 
other  remedy,  either  in  parliament  or  any  where  else,  as  the  plaintiff  in  our 
case  has.  So  that  I  am  of  opinion,  that  judgment  ought  to  be  given  for 
the  defendant  upon  the  merits.  But  upon  this  declaration  the  plaintiff 
cannot  maintain  any  action,  for  the  plaintiff  does  not  allege  in  his  count, 
that  the  two  burgesses  elected  were  returned,  and  if  they  were  never 
returned,  there  is  no  damage  to  the  plaintiff.  See  2  Bulstr.  265.  But  I 
do  not  rely  upon  this  fault  in  the  declaration. 

Poii-ys,  J. — I  am  of  the  same  opinion,  that  no  action  lies  against  the 
defendant,  1.  Because  the  defendant  as  bailiff  is  quasi  a  judge,  and  has  a 
distinguishing  power  either  to  receive  or  refuse  the  votes  of  such  as  come  to 
vote,  and  does  preside  in  this  affair  at  the   time  of  election  :  though  his 

{},)  D.  cont.  1  Wils.  1-2.1. 


AS  II  BY    V.     WniTE    ET    ALIOS.  295 

determination  be  not  conclusive,  but  subject  to  the  judgment  of  the  parlia- 
ment, where  the  plaintiff  must  take  his  remedy. 

2.  If  the  defendant  misbehave  himself  in  his  office  by  making  a  false  or 
double  return,  an  action  lies  against  him  for  it  on  the  late  statute,  7  &  8 
W.  3,  c.  7,  and  therein  all  this  matter  of  refusing  the  plaintiff's  vote  is 
comprised,  and  all  the  special  matter  is  scanned  in  that  action.  And  if  you 
allow  the  plaintiff  to  maintain  an  action  for  this  matter,  then  every  elector 
may  bring  his  action,  and  so  the  officer  shall  be  loaded  with  a  number  of 
actions,  that  may  ruin  him ;  and  he  may  follow  one  law  suit,  though  he 
may  not  be  able  to  follow  many.  These  actions  proceed  from  heat,  I  will 
not  call  it  revenge ;  and  it  is  not  like  splitting  of  actions,  scilicet,  of  one 
cause  of  action  into  many,  but  the  causes  of  action  are  several,  and  the 
court  cannot  unite  them,  but  *A.,  B.,  C,  D.,  E.,  and  a  hundred  ^-i-if^-, 
more,  may  at  this  rate  bring  actions.  L       ''J 

3.  There  is  a  vast  intricacy  in  determining  the  right  of  electors,  and 
there  is  a  variety,  and  a  different  manner  and  right  of  election  in  every 
borough  almost.  As  in  some  boroughs  every  potwaller  has  a  right  to  vote, 
in  some  residents  only  vote,  and  in  others  the  outlying  burgesses  that  live  a 
hundred  miles  off;  nay,  I  know  Ludlow  a  borough,  where  all  the  bur- 
gesses' daughters'  husbands  have  a  right  to  vote.  But  now  all  this  matter 
is  comprised  in  an  action  against  the  officer  for  a  false  return.  But  it  is 
objected,  that  by  the  law  of  England  every  one  who  suffers  a  wrong  has 
a  remedy;  and  here  is  a  privilege  lost,  and  shall  not  the  plaintiff  have  a 
remedy?  To  that  I  answer,  first,  it  is  not  an  injury,  properly  speaking 3 
it  is  not  damnum,  for  the  plaintiff  does  not  lose  his  privilege  by  this  refusal, 
for  when  the  matter  comes  before  the  committee  of  elections,  the  plaintiff's 
vote  will  be  allowed  as  a  good  vote  ;  and  so  in  an  action  upon  the  case  by 
one  of  the  candidates  for  a  false  return,  this  tender  of  his  vote  by  the  plain- 
tiff shall  be  allowed  as  much  as  if  it  had  been  given  actually  and  received. 
And  if  this  refusal  of  the  plaintiff's  vote  be  an  injury,  it  is  of  so  small  and 
little  consideration  in  the  law,  that  no  action  will  lie  for  it;  it  is  one  of  those 
things  within  the  maxim,  de  minimis  non  curat  lex.  In  the  case  of  Ford 
v.  Hoskins,  2  Cro.  3G8.  Mod.  833.  2  Bulstr.  336,  1  Boll.  Kep.  125,  where 
an  action  is  brought  against  the  lord  of  a  copyhold  manor,  for  refusing  to 
accept  one  named  as  successor  for  life  by  the  preceding  tenant  for  life,  accord- 
ing to  the  custom,  there  the  plaintiff  suffers  an  injury,  and  yet  it  is  adjudged 
that  no  action  lies.  The  late  statute  7  &  8  W.  3,  c.  7,  gives  an  action 
against  the  officer  for  a  misfeasance  to  the  party  grieved,  i.  e.  to  the  candi- 
date, who  is  to  have  his  vote;  so  that  by  the  judgment  of  the  parliament  he 
cannot  have  any  action.  Before  the  statute  of  23  Hen.  G,  no  action(i)  lay 
for  the  candidate,  who  was  the  party  aggrieved,  against  the  officer,  for  a  false 
return,  because  it  related  to  parliamentary  matters,  as  is  adjudged  3  Lev. 
29,  30,  Onslow  v.  Raply,  and  yet  he  had  an  injury ;  and  till  the  7  &  8  W. 
3,  no  action(c)  lay  for  the  candidate  against  the  officer  for  a  double  return, 
as  is  adjudged  in  the  same  *case,  3  Lev.  29,  2  Ventr.  37,  and  yet  r*-|-io-| 
he  suffered  an  injury  thereby  ;  a  fortiori  no  action  shall  lie  for  the  L  "^J 
plaintiff  in  this  case. 

4.  This  action  is  not  maintainable  for  another  reason,  which  I  think  is  a 

{h)  D.  cont.  1  Wils.  127.  (c)  D.  cont.  1  Wils.  127. 


296  smith's   leading    cases. 

weighty  one,  viz.  this  action  is  ])7-imffs  im2'>rcssio)u's ;  never  the  like  action 
was  brought  before,  and  therefore  as  (^?)Littleton,  s.  108,  uses  it  to  prove 
that  no  action  hiy  on  the  statute  of  3Ierton,  20  Hen.  3,  c.  6,  si  j^arentcs 
conqucranfur,  for  if  it  had  lain,  it  would  have  sometimes  been  put  in  use  : 
so  here.     So  in  the  case  of  Lord  Say  and  Scale  v.  Stephens,  Cro.  142,  for  / 

the  law  is  not  apt  to  catch  at  actions.     It  is  agreed  by  the  consent  of  all  ' 

ages,  that  no  (e)action  lay  at  common  law  against  the  officer  for  a  double 
return ;  and  yet  in  one  year,  viz.  1641,  there  was  no  less  than  seventy 
double  returns,  and  yet  they  made  no  act  to  help  it,  though  the  parliament 
could  not  be  misconusant  of  the  matter. 

5.  Another  reason  against  the  action  is,  that  the  determination  of  this 
matter  is  particularly  reserved  to  the  parliament,  as  a  matter  properly  conus- 
able  by  them ;  and  to  them  it  belongs  to  determine  the  fundamental  rights 
of  their  house,  and  of  the  constituent  parts  of  it,  the  members;  and  the 
courts  of  "Westminster  shall  not  tell  them  who  shall  sit  there.  Besides  we 
are  not  acquainted  with  the  learning  of  elections;  and  there  is  a  particular 
cunning  in  it  not  known  to  us,  nor  do  we  go  by  the  same  rules,  and  they 
often  determine  contrary  to  our  opinion  without  doors.  The  late  statute, 
which  enacts  that  the  last  determination  of  the  house  as  to  the  right  of 
election  shall  be  a  rule  to  the  judges  in  the  trial  of  any  cause,  is  a  declara- 
tion of  their  power ;  and  the  paths  the  judges  are  to  walk  in  are  chalked 
out  to  them,  so  that  they  are  not  left  to  use  their  own  judgment;  but  the 
determination  of  the  house  is  to  be  the  rule  of  law  to  us,  and  we  are  not  to 
examine  beyond  that.  Suppose  in  this  action  we  should  adjudge  one  way, 
and  after  in  parliament  it  should  be  determined  another  way;  or  suppose  a 
judge  of  nisi  prius,  before  whom  the  cause  comes  to  be  tried,  should  say, 
"I  am  not  bound  by  the  rule  of  the  last  determination  in  parliament  in  this 
action,  for  this  is  another  sort  of  action,  not  within  the  meaning  of  the 
statute  ;"  these  things  would  be  of  ill  consequence. 

r*i  in  ^"  -^'^other  reason  against  this  action  is,  that  if  we  should  *allow 
L  -I  this  action  to  lie  for  the  plaintiff,  a  fortiori  we  must  allow  an  action 
to  be  maintainable  for  the  candidates  against  the  defendant  for  the  same 
refusal;  for  the  candidates  have  both  damnum  et  injuriam,  and  are  the 
parties  aggrieved ;  and  if  we  should  allow  that,  we  shall  multiply  actions 
upon  the  officers,  at  the  suit  of  the  candidates,  and  every  particular  elector 
too ;  so  that  men  will  be  thereby  deterred  from  venturing  to  act  in  such 
offices,  when  the  acting  therein  becomes  so  perilous  to  them  and  their 
families.  I  will  not  insist  upon  the  exceptions  to  the  declaration,  but  give 
my  opinion  upon  the  merits.  I  think  there  is  a  sufficient  allegation  in  the 
count  of  the  return  of  the  election,  especially  after  a  verdict.  Nor  shall  I 
insist  that  it  does  not  appear  in  the  declaration  how  near  the  party  was  to 
be  chosen ;  nor  that  this  action  is  brought  merely  for  a  possibility ;  for  this 
is  an  action  for  a  personal  injury;  and  the  plaintiff  might  give  his  vote  for 
which  he  pleased,  either  the  candidate  that  had  fewer  or  more  voices;  or  he 
might  give  his  vote  for  one  who  had  no  other  burgess's  voice  but  the  plain- 
tiff's  own;  for  the  plaintiff,  in  those  cases,  is  deprived  as  much  of  his 
privilege  as  if  the  person  for  whom  he  voted  was  nearest  to  be  chosen.  But 
it  has  been  objected,  that  the  defendant  should  not  have  absolutely  refused 

(d)  Vide  Co.  Litt.  81,  b.     13  Ed.  n.  2.  (0  D-  Cont.  1  Wils.  127. 


ASHBY    V.    "WHITE    ET     ALIOS.  297 

to  receive  the  plaintiff's  vote,  but  sliould  have  reserved  it  for  scrutiny, 
and  should  have  admitted  it  de  bene  esse.  To  that  I  answer  :  he  might 
indeed  have  done  so;  but  he  was  not  obliged  to  do  it,  for  the  officer  is  sup- 
posed to  know  every  man's  right  and  pretence  of  election,  and  commonly 
the  weaker  party  are  for  bringing  in  new  votes,  and  devising  new  contriv- 
ances; but  the  officer  ought  to  disallow  them  at  first,  and  not  to  give  so 
much  countenance  to  such  a  practice  as  to  reserve  it  for  a  scrutiny.  As 
here  in  Westminster-hall,  when  a  matter  of  law  comes  before  us,  if  it  be  a 
clear  case,  we  may  give  judgment  in  it  on  the  first  argument,  and  it  will  be 
a  good  judgment,  although  it  be  usual  to  hear  several  arguments.  The 
objection  of  weight  is  the  resolution  between  Sterling  and  Turner,  2  Lev. 
50.  Hale  said  that  it  was  a  good  precedent :  and  the  case  of  Herring  and 
Finch,  2  Lev.  250,  though  as  to  that  case  it  was  not  adjudged  upon  the 
matter  of  law,  but  went  off  upon  a  point  of  evidence,  yet  I  will  admit  the 
action  to  lie  for  the  plaintiff  in  those  cases,  but  they  do  not  at  all  relate  to 
the  parliament,  but  are  matters  of  custom  merely  relating  to  the  government 
of  the  city,  *and  are  properly  determinable  at  common  law.     And 


although  it  may  be  said,  that  this  case  also  relates  to  the  government 


[*115] 


of  the  town,  so  does  a  public  nuisance  in ,  a  highway ;  but  if  a  particular 
person  receive  an  injury,  he  may  have  his  action;  but  that  does  not  relate 
to  the  parliament  as  this  matter  does ;  and  the  whole  case  here  turns  upon 
that,  viz.  its  being  a  parliamentary  matter.  If  we  should  admit  this  action 
to  lie,  we  shall  have  work  enough  in  Westminster-hall,  brought  in  by  a  side- 
wind; nay,  so  much,  that  we  shall  even  be  glad  to  petition  the  parliament 
to  take  this  power  away  from  us.  Besides,  the  judgment  here  cannot  be 
called  properly  a  determination;  it  will  only  be  a  litigation;  for  our  judg- 
ment cannot  be  cited  as  an  authority  in  parliament,  nor  will  the  parliament 
mind  it,  or  be  bound  up  by  it,  for  they(/)  themselves  are  not  bound  even 
by  their  own  determination,  but  may  determine  contrary  to  it,  though  that 
be  a  rule  upon  the  courts  of  Westminster.  But  it  has  been  objected,  that 
this  is  no  determination  of  the  election  in  this  judgment,  but  only  of  a  par- 
ticular injury.  To  that  I  answer,  It  will  be  in  consequence  of  a  determi- 
nation of  the  election ;  for  if  the  plaintiff  had  a  right  to  vote,  then  this 
action  is  maintainable;  if  he  has  no  right,  then  he  can  have  no  action;  and 
by  consequence,  twenty  others  may  have  a  right  to  vote,  and  the  election 
may  turn  upon  this  single  vote ;  and  his  right  of  voting  is  as  much  parlia- 
mentary as  the  whole  election,  and  may  as  much  entangle  the  case.  It  is 
said  in  Onslow's  case,  2  Vent.  37,  that  the  courts  at  Westminster  must  not 
enlarge  their  jurisdiction  in  these  matters,  further  than  the  statute  gives 
them ;  and  indeed  it  is  a  happiness  to  us,  that  we  are  so  far  disengaged  from 
the  heats  which  attend  elections.  Our  business  is,  to  determine  of  vieum 
and  tuitm,  where  the  heats  do  not  run  so  high  as  in  things  belonging  to  the 
legislature :  therefore,  this  being  an  unprecedented  case,  I  shall  conclude 
with  a  saying  of  my  lord  Coke,  2  Bulst.  338  :  Omnis  innovatio  plus  novitate 
2'>erturhat  quam  utilitate  prodest. 

Powell,  J. — I  am  of  the  same  opinion,  that  the  judgment  ought  to  be 
arrested.     As  to  the  novelty  of  this  action,  I  think  it  no  argument  against 

(/)  Vide  2  G.  2,  c.  24,  s.  4.     ]  Doug,  on  Elections,  18. 


298  smith's    leading  cases. 

the  action ;  for  there  have  been  actions  on  the  case  brought  that  had  never 
-,  ,p-,  been  brought  before,  but  had  there  beginning  of  late  years;  and  *we 
L  -^  must  judge  upon  the  same  reason  as  other  cases  have  been  deter- 
mined by.  I  do  not  agree  with  my  brothers  upon  their  first  reason,  that 
the  defendant  is  a  judge.  I  do  not  understand  what  my  brother  Powys 
means  by  saying  he  is  quasi  a  judge :  surely  he  must  be  a  judge  or  no 
judge.  The  bailiif  is  not  a  judge,  but  only  an  ofl&cer  or  minister  to  execute 
the  precept.  But  I  agree  with  them  in  their  other  reasons  to  give  judg- 
ment against  the  plaintiiF;  and  chiefly,  because  in  this  action  there  does 
not  appear  such  an  injury  or  damage  as  is  necessary  to  maintain  an  action 
on  the  case.  An  injury  must  have  relation  to  some  privilege  the  party  has. 
The  case  of  Turner  and  Sterling,  2  Lev.  50,  is  adjudged  upon  a  particular 
reason ;  for  the  defendant  by  refusing  him  the  poll,  deprived  him  of  the 
means  of  knowing  whether  he  had  a  right  or  not.  If  cestuy  que  use  desires 
the  feoffees  to  make  a  feoffment  over  to  another,  and  they  refuse,  no  action 
upon  the  case  lies  against  them  for  this  refusal.  And  in  the  case  of 
Ford  against  Hoskins,  2  Bulstr.  337,'  2  Cro.  3G8,  it  is  resolved,  that  no 
action  lies  for  the  nominee  against  the  lord,  for  refusing  to  keep  a  court, 
and  to  admit  himf ;  yet  this  is  a  hard  case,  for  the  party  is  thereby  deprived 
of  the  means  of  coming  to  his  right.  But  that  case  differs  from  the  case  of 
Sterling  v.  Turner ;  for  the  party  hath  a  known  remedy  in  Chancery,  to 
compel  the  lord  to  hold  a  court  and  admit  him,  but  the  other  hath  no 
remedy  against  the  mayor  but  an  action.  Here  is  no  injury  to  the  plaintiff; 
for  though  he  has  alleged,  in  his  declaration,  that  he  has  a  right  to  vote, 
and  was  hindered  of  it  by  the  defendant,  yet  that  does  not  give  him  a  right, 
unless  the  finding  thereof  by  the  jury  do  confer  such  right ;  but  that  cannot 
be  so,  for  the  jury  cannot  judge  of  this  right  in  the  first  instance,  because 
it  is  a  right  properly  determinable  in  parliament.  The  parliament  have  a 
peculiar  right  to  examine  the  due  election  of  their  members,  which  is  to  de- 
termine whether  they  are  elected  by  proper  electors,  such  as  have  a  right  to 
elect ;  for  the  right  of  voting  is  the  great  difficulty  in  the  determination  of 
the  due  election,  and  belongs  to  the  parliament  to  decide.  But  it  is  objected, 
admitting  the  plaintiff  had  a  right  to  vote,  and  was  deprived  of  it,  shall  he 
have  no  remedy  ?  To  that  I  answer,  he  shall  have  a  remedy  in  proper 
r*l  1 71  *^^^ '  ^^^  *^^®  plaintiff  here  comes  too  soon ;  he  shall  have  a  remedy 
L  -"by  *action  after  the  parliament  have  determined  that  he  had  a  right, 
but  not  before.  This  is  not  such  a  right,  the  deprivation  whereof  will  make 
an  injury,  till  it  be  determined  in  parliament.  But  the  plaintiff  has  a  pro- 
per remedy,  by  petition  to  the  parliament  setting  forth  his  case ;  and  after 
the  parliament  have  adjudged  that  he  had  a  right  of  voting,  he  shall  have 

t  But  he  may  have  a  mandamus.  Rex  v.  Lord  of  the  Manor  of  Ilendon,  2  T.  R. 
484;  Rex  v.  Cofjgan,  6  East,  431.  And  so  may  the  heir.  Rex  v.  Masters  of  Brevverb' 
Co.  3  B.  &  C.  172  ;  though  in  Rex  v.  Rcnnctt,  2  T.  R.  197,  it  had  been  held  otherwise. 
[So  may  liie  surrenderee  of  tlie  heir,  aUhough  the  iieir  was  not  admitted,  upon  payment 
of  the  proper  fine,  including  the  fine  payable  upon  the  descent  to  the  heir.  R.  v.  Dul- 
lingham,  8  Ad.  &  E.  858;  1  P.  &,  D.  172,  S.  C]  But  where  the  heir's  title  is  clearly 
barred  by  lapse  of  time,  a  mandamus  will  not  be  granted  to  admit  him,  for  lie  may  bring 
ejectment  without.  R.  v.  Agardslcy,  5  Dowl.  1  7.  [And  in  cases  involving  questions  of 
equity,  c.  g.  that  of  the  surrenderee  of  a  trustee  appointed  under  11  Geo.  4,  and  1  Will.  4, 
c.  60,  s.  8,  the  Court  of  Queen's  Bench  will  not  interfere  by  mandamus.  R.  v.  Pitt,  10 
A.  &  E.  272.  Also,  inasmuch  as  the  lord  must  be  included  in  the  writ,  no  mandamus 
lies  to  admit  to  a  copyhold  held  of  the  crown.     R.  v.  Powell,  1  Q.  B.  352.] 


ASHBY    V.    WHITE    ET    ALIOS.  299 

an  action  at  law  to  recover  damages,  when  bis  right  is  so  fixed  and  settled. 
The  opinion  of  my  lord  Hobart  in  the  case  of  Sir  William  Elvis  and  the 
archbishop  of  York,  Hob.  317,  318,  and  the  reason  of  that  opinion,  comes 
very  near  to  the  present  case ;  That  if  the  church  be  litigious,  and  two 
clerks  be  presented  to  the  ordinary,  and  he  award  a  jure  patronatus*  to  in- 
quire which  patron  has  the  right,  and  the  inquest  find  for  one,  and  yet  the 
ordinary  receive  the  clerk  of  the  other,  contrary  to  the  finding  of  the  jury, 
in  that  case  if  the  other  patron  bring  his  quare  impedit  against  the  usurper 
and  his  incumbent,  not  naming  the  bishop,  and  proves  his  title,  he  may 
afterwards  have  an  action  upon  the  case  against  the  ordinary,  for  that  wilful 
wrong,  delay,  and  trouble,  that  he  hath  put  him  to ;  and  he  shall  recover 
costs  and  damages,  not  in  respect  of  the  value  of  the  church  (for  there  are 
no  damages  for  that  by  the  common  law,  but  by  West.  2,  13  Edw.  1  st.  1, 
c.  5,  s.  3),  but  for  the  other  respects  before  mentioned.  But  if  he  name 
the  ordinary  in  the  quare  impedit,  he  can  have  no  other  action  of  the  case ; 
neither  shall  he  have  such  action  upon  the  case  before  he  hath  tried  his  title 
in  a  proper  action,  and  against  the  proper  parties.  So  that  in  that  case, 
though  the  patron's  right,  being  found  by  the  jury  on  the  jure  patronatus, 
is  in  some  measure  determined,  yet  he  shall  not  maintain  an  action  upon 
the  case  against  the  ordinary,  but  he  must  first  prove  his  title  in  a  proper 
manner  by  a  quare  impedit,  and  thereby  prove  the  ordinary  a  disturber ; 
and  after  that  he  may  bring  his  action  on  the  case,  against  the  ordinary  for 
his  damages.  Where  the  party  has  no  possibility  of  settling  his  right,  as 
in  the  case  of  Sterling  and  Turner,  there  he  shall  maintain  his  action  for  the 
disturbance  before  his  right  be  settled;  but  where  he  has  a  proper  method, 
as  in  our  case,  he  shall  not  maintain  an  action  till  his  right  be  determined; 
and  the  reason  of  this  difference  is  very  strong,  because  of  the  incon-  p^-j-io-i 
veniences  of  contrary  determinations  upon  the  several  *actions,  or  L  -* 
of  the  different  judgments  by  the  House  of  Commons,  and  the  judges  at 
common  law  :  for  the  house  may  be  of  opinion  that  the  plaintiff  has  a  right  to 
vote,  and  yet  the  judges  may  be  of  opinion  upon  the  action  that  he  hath  none, 
and  give  judgment  against  him  ;  and  even  though  he  has  a  right,  he  will  have 
no  remedy;  et  e  converso.  But  this  difference  of  opinions  will  be  prevented 
by  such  previous  application  to  the  house  before  any  action  brought.  Besides, 
in  this  case,  here  is  not  a  damage,  upon  which  this  action  is  maintainable ; 
for,  to  maintain  an  action  upon  the  case,  there  must  be  either  a  real  damage, 
or  a  possibility  of  a  real  damage,  and  not  merely  a  damage  in  opinion,  or 
consequence  of  law.  For  a  possibility  of  a  damage,  as  an  action  upon  the 
case,  lies  for  the  owner  of  an  ancient  market,  for  erecting  a  new  market 
near  his;  and  yet  perhaps  the  cattle  that  come  to  the  old  market  might  not 
be  sold,  and  so  no  toll  due ;  and  consequently  no  real  damage,  but  there  is 
a  possibility  of  damage.  But  in  our  case  there  is  no  possibility  of  a  damage. 
It  is  laid  in  the  declaration,  that  the  defendant  obstructed  him  from  giving 
his  vote ;  but  that  is  too  general,  without  showing  the  manner  how  he  ob- 
structed him,  as  that  the  defendant  kept  him  out  of  the  usual  place  where 
the  votes  are  taken.  The  plaintiff  shows  no  damage  in  his  count,  and  the 
verdict  will  not  supply  it,  for  the  plaintiff  ought  always  allege  a  damage,  as 
in  an  action  upon  the  case  brought  against  the  lessee  by  him  in  the  rever- 
sion, for  refusing  to  permit  him  to  enter  to  view  waste,  it  would  not  be  suf- 
*  See  the  nature  of  this  proceeding  explained,  3  Bl.  Comm.  246. 


300  smith's   leading    cases. 

ficient  to  allege  thus  generally,  tbe  defendant  obstructed  him,  &c.  It  is 
laid  here,  that  the  defendants  ipsum  the  plaintiff  ad  suffrayium  suum  dare 
ohstruxerunt,  ct  jienitus  recusaverunt :  I  do  not  know  what  that  means  in 
this  case.  Indeed,  it  is  a  sufficient  description  of  a  disseisin  of  a  rent  seek; 
but  if  the  plaintiff  gives  his  vote  for  a  candidate,  that  is  as  effectual  as  if  the 
officer  writ  it  down,  for  it  is  his  vote  by  the  giving  of  it,  and  the  officer  can- 
not hinder  him  of  it,  and  on  a  poll  it  will  be  a  good  vote,  and  must  be  al- 
lowed, and  so  there  is  no  wrong  done  to  the  plaintiff,  for  his  vote  was  a 
good  vote  notwithstanding  what  the  defendant  did.  Besides,  the  plaintiff 
can  make  no  profit  of  his  vote ;  and  it  is  like  the  case  of  a  quare  impedit, 
in  which  the  plaintiff  at  common  law  recovered  no  damages,  because  he 
r*l  1Q1  *^^g^^*  ^0*'  *^  s^^^  ^^^  presentation,  and  *so  could  make  no  profit  of  it. 
L  J  So  here,  for  it  would  be  criminal  for  the  plaintiff  to  sell  his  vote. 
Perhaps  the  putting  the  plaintiff  to  trouble  and  charge,  to  maintain  and 
vindicate  his  right  of  voting,  might  be  sufficient  damage  to  maintain  an  ac- 
tion on  the  case ;  but  as  our  case  is,  I  cannot  see  that  the  plaintiff  has  re- 
ceived any  damage.  Great  inconveniences  do  attend  the  allowance  of  this 
action,  as  my  brothers  have  said;  as  that  it  will  occasion  multiplicity  of 
actions,  and  for  that  reason  it  is,  that  the  law  gives  no  action  to  a  private 
person  for  a  public  nuisance,  for  there  is  a  remedy  by  indictment  to  redress 
it.  So  here  the  plaintiff  has  a  remedy  in  parliament.  As  to  the  case  of 
Westbury  v.  Powell,  Co.  Lit.  50,  a,  where  the  inhabitants  of  Southwark  had 
a  watering-place  for  their  cattle  by  custom,  which  was  stopped  up,  there  any 
inhabitant  might  have  an  action,  because  there  was  no  other  remedy  by  pre- 
sentment or  the  like ;  but  if  it  had  been  a  nuisance  presentable,  no  action(a) 
would  have  lain.  So  in  the  case  of  Sterling  and.  Turner,  the  party  had  no 
other  remedy.  So  in  the  case  of  Herring  and  Finch,  which  is  a  strong  case ; 
and  I  do  not  know  whether  an  action  will  lie  in  that  case,  for  refusing  to 
admit  his  voice  to  the  election  of  a  mayor ;  but  there  the  plaintiff  has  no 
other  remedy,  nor  other  way  to  settle  his  right.  If  we  should  adjudge  that 
this  action  lies,  it  will  be  dangerous  to  execute  any  office  of  this  nature,  and 
will  deter  men  from  undertaking  public  offices,  which  will  be  a  thing  of  ill 
consequence.  I  am  of  opinion  upon  the  whole  matter,  that  after  a  determi- 
nation in  the  parliament  for  the  plaintiff's  right,  the  trouble  and  charge  of 
vindicating  it  will  maintain  an  action,  but  in  this  case  no  action  lies,  and 
therefore  the  judgment  ought  to  be  arrested. 

Holt,  Chief  Justice. — The  single  question  in  this  case  is,  Whether,  if  a 
free  burgess  of  a  corporation,  who  has  an  undoubted  right  to  give  his  vote 
in  the  election  of  a  burgess  to  serve  in  parliament,  be  refused  and  hindered 
to  give  it  by  the  officer,  if  an  action  on  the  case  will  lie  against  such  officer  ? 

I  am  of  opinion  that  judgment  ought  to  be  given  in  this  case  for  the 
plaintiff.  My  brothers  differ  from  me  in  opinion ;  and  they  all  differ  from 
one  another  in  the  reasons  of  their  opinion ;  but  notwithstanding  their 
opinion,  I  think  the  plaintiff  ought  to  recover,  and  that  this  action  is  well  main- 
r*1 901  *^^^^^^*^  ^SiXid  ought  to  lie.  I  will  consider  their  reasons.  My  brother 
L  -'  Gould  thinks  no  action  will  lie  against  the  defendant,  because,  as  he 
says,  he  is  a  judge  ;  my  brother  Powys  indeed  says,  he  is  no  judge,  but  quasi  a 
judge  ;  but  my  brother  Powell  is  of  opinion,  that  the  defendant  neither  is  a 

(a)  Vide  L.  Ray.  486. 


I 


ASHBY     V.     WHITE   ET   ALIOS.  301 

judge,  nor  any  thing  like  a  judge,  and  that  is  true :  for  the  defendant  is 
only  an  officer  to  execute  the  precept,  i.  c.  only  to  give  notice  to  the  electors 
of  the  time  and  place  of  election,  and  to  assemble  them  together  in  order  to 
elect,  and  upon  the  conclusion  to  cast  up  the  poll,  and  declare  which  candi- 
date has  the  majority. 

But  to  proceed,  I  will  do  these  two  things :  First,  I  will  maintain  that 
the  plaintiff  has  a  right  and  privilege  to  give  his  vote :  Secondly,  in  conse- 
quence thereof,  that  if  he  be  hindered  in  the  enjoyment  or  exercise  of  that 
right,  the  law  gives  him  an  action  against  the  disturber,  and  that  this  is  the 
proper  action  given  by  the  law. 

I  did  not  at  first  think  it  would  be  any  difficulty  to  prove  that  the  plain- 
tiff has  a  right  to  vote,  nor  necessary  to  maintain  it,  but  from  what  my 
brothers  have  said  in  their  arguments  I  find  it  will  be  necessary  to  prove  it. 
It  is  not  to  be  doubted,  but  that  the  Commons  of  England  have  a  great  and 
considerable  right  in  the  government,  and  a  share  in  the  legislative,  without 
whom  no  law  passes ;  but  because  of  their  vast  numbers  this  right  is  not 
exerciseable  by  them  in  their  proper  persons,  and  therefore  by  the  constitu- 
tion of  England,  it  has  been  directed,  that  it  should  be  exercised  by  repre- 
sentatives, chosen  by  and  out  of  themselves,  who  have  the  whole  right  of 
all  the  Commons  of  England  vested  in  them  :  and  this  representation  is 
exercised  in  three  different  qualities,  either  as  knights  of  shires,  citizens  of 
cities,  or  burgesses  of  boroughs;  and  these  are  the  persons  qualified  to 
represent  all  the  Commons  of  England,  The  election  of  knights  belongs 
to  the  freeholders  of  the  counties,  and  it  is  an  original  right  vested  in  and 
inseparable  from  the  freehold,  and  can  no  more  be  severed  from  their  free- 
hold, than  the  freehold  itself  can  be  taken  away.  Before  the  statute  of  8 
Hen.  6,  c.  7,  any  man  that  had  a  freehold,  though  never  so  small,  had  a 
right  of  voting,  but  by  that  statute  the  right  of  election  is  confined  to  such 
persons  as  have  lands  or  tenements  to  the  yearly  value  of  forty  shillings  at 
least,  because  as  the  statute  says,  of  the  tumults  and  disorders  which 
happened  *at  elections,  by  the  excessive  and  outrageous  number  of  -.^^^ 
electors ;  but  still  the  right  of  election  is  as  an  original  right,  inci-  L  ^  J 
dent  to,  and  inseparable  fi'om  the  freehold.  As  for  citizens  and  burgesses, 
they  depend  on  the  same  right  as  the  knights  of  shires,  and  differ  only  as 
to  the  tenure,  but  the  right  and  manner  of  their  election  is  on  the  same 
foundation.  Now,  boroughs  are  of  two  sorts ;  first,  where  the  electors  give 
their  voices  by  reason  of  their  burgership ;  or,  secondly,  by  reason  of  their 
being  members  of  the  corporation.  Littleton,  in  his  chapter  of  tenure  in 
burgage,  162,  C.  L.  108,  b.  109,  says,  "  Tenure  in  burgage  is,  where  an 
ancient  borough  is,  of  the  which  the  king  is  lord,  of  whom  the  tenants  hold 
by  certain  rent,  and  it  is  but  a  tenure  in  socage  :"  and  sect.  164,  he  says, 
"  and  it  is  to  wit,  that  the  ancient  towns  called  boroughs  be  the  most 
ancient  towns  that  be  within  England,  and  are  called  boroughs,  because 
of  them  come  the  burgesses  to  parliament."  So  that  the  tenure  of 
burgage  is  from  the  antiquity,  and  their  tenure  in  socage  is  the  reason  of 
their  estate,  and  the  right  of  election  is  annexed  to  their  estate.  So  that 
it  is  part  of  the  constitution  of  England,  that  these  boroughs  shall  elect 
members  to  serve  in  parliament,  whether  they  be  boroughs  corporate  or  not 
corporate ;  and  in  that  case  the  right  of  election  is  a  privilege  annexed  to 
the  burgage  land,  and  is,  as  I  may  properly  call  it,  a  real  privilege.  But 
the  second  sort  is,  where  a  corporation  is  created  by  charter,  or  by  prescrip- 


302  smith's   leading   cases. 

tion,  and  the  inembers  of  the  corporation  as  such  choose  burgesses  to  serve 
in  parliament.  The  first  sort  have  a  right  of  choosing  burgesses  as  a  real 
right,  but  here  in  this  last  case  it  is  a  personal  right,  and  not  a  real  one,  and 
is  exercised  in  such  a  manner  as  the  charter  or  custom  prescribes ;  and  the 
inheritance  of  this  right,  or  the  right  of  election  itself,  is  in  the  whole  body 
politic,  but  the  exercise  and  enjoyment  of  this  right  is  in  the  particular 
members.  And  when  this  right  of  election  is  granted  within  time  of 
memory,  it  is  a  franchise  that  can  be  given  only  to  a  corporation  :  as  is 
resolved  by  all  the  judges  against  my  Lord  Hobart,  in  the  case  of  Dungannon 
in  Ireland,  12  Co.  120,  121,  that  if  the  king  grant  to  the  inhabitants  of 
Islington  to  be  a  free  borough,  and  that  the  burgesses  of  the  same  town 
may  elect  two  burgesses  to  serve  in  parliament,  that(a)  such  a  grant  of  such 
fAioon  pi'ivilege  to  burgesses  not  ^incorporated  is  void,  for  the  inhabitants 
L  -I  have  not  capacity  to  take  an  inheritance.  See  Hob.  15.  The  prin- 
cipal case  there  was,  the  king  constituted  the  town  of  Dungannon  to  be  a 
free  borough,  and  that  the  inhabitants  thereof  shall  be  a  body  politic  and 
corporate,  consisting  of  one  provost,  twelve  free  burgesses  and  commonalty; 
and  in  the  same  name  may  sue  and  be  sued ;  et  quod  ipse  prsefatus  prse- 
positus  et  lihcri  hurgcnses  hurgi  prsedlcti  et  successores  sui  in  perpefuum 
haheant phnam  potcstatcm  et  autlioritatem  eligendi,  mittendi,  et  retornandi 
duos  discretos  et  idoneos  vivos  ad  inserviendum  et  attendendum  in  quolibet 
parliamento,  in  dicto  regno  nostra  Hihernise  in  posterum  tenendo,  and  so 
proceeds  to  give  them  power  to  treat,  and  give  voice  in  parliament,  as  other 
burgesses  of  any  other  ancient  borough,  either  in  Ireland  or  England,  have 
used  to  do.  And  upon  this  grant  it  was  adjudged,  by  all  the  judges  of 
England,  that  this  power  to  elect  burgesses  is  an  inheritance  of  which  the 
provost  and  burgesses  were  not  capable,  for  that  it  ought  to  be  vested  in 
the  entire  corporation,  viz.  provost,  burgesses,  and  commonalty,  and  that 
therefore  the  law  in  this  case  did  vest  that  privilege  in  the  whole  corpora- 
tion in  point  of  interest,  though  the  execution  of  it  was  committed  to  some 
persons,  members  of  the  same  corporation.  12  Co.  120,  121.  Hob.  14, 
15.  As  to  the  manner  of  election,  every  borough  subsists  on  its  own  foun- 
dation, and  where  this  privilege  of  election  is  used  by  particular  persons,  it 
is  a  particular  right  vested  in  every  particular  man ;  for  if  we  consider  the 
matter,  it  will  appear,  that  the  particular  members  and  electors,  their  per- 
sons, their  estates,  and  their  liberties,  are  concerned  in  the  laws  that  are 
made,  and  they  are  represented  as  particular  persons,  and  not  quatenus  a 
body  politic ;  therefore,  when  their  particular  rights  and  properties  are  to  be 
bound  (which  are  much  more  valuable  perhaps  than  those  of  the  corpora- 
tion) by  the  act  of  the  representative,  he  ought  to  represent  the  private 
persons.  And  this  is  evident  from  all  the  writs,  which  were  anciently 
issued  for  levying  the  wages  of  the  knights  and  burgesses  that  served  in  par- 
liament. As  46  Edw.  3,  Rot.  Pari.  memb.  4,  in  dorso.  For  when  wages 
were  paid  to  the  members,  they  were  not  assessed  upon  the  corporation,  but 
upon  the  commonalty  as  private  persons,  as  the  writ  shows,  which  indeed  is 
directed  to  the  sheriflF,  or  to  the  mayor,  &c.,  yet  the  command  is  '  quod  de 
*ioQn  communitate  ^comitatus  civitatis,  vcl  hurgi,  hahere  facial  militibus 
L         -J  civibus  aut  hurgensibus  101.  2^ro  expensis  suis.'    But  now,  if  the  cor- 

(o)  Vide  Co.  Lit.  3  a. 


I 


ASHBY.V.     WHITE     ET     ALIOS.  303 

poration  were  only  to  be  represented,  and  not  the  particular  members  of  it, 
then  the  corporation  only  ought  to  be  at  the  charge;  but  it  is  plain  that 
the  particular  members  are  at  the  charge.  And  this  is  no  new  thing,  but 
agreeable  to  reason  and  the  rules  of  law,  that  a  franchise  should  be  vested  iu 
the  corporation  aggregate,  and  yet  the  benefit  of  it  to  redound  to  the  parti- 
cular members,  and  to  be  enjoyed  by  them  in  their  private  capacity.  As  is 
the  case  of  Waller  and  Hanger,  Mo.  832,  833,  where  the  king  granted  to 
the  mayor  and  citizens  of  London,  quod  nulla  prisagia  svit  soluta  de  vinis 
civium  ct  liherorum  homiman  de  London,  &c.  And  there  it  was  resolved, 
that  although  the  grant  be  to  the  corporation,  yet  it  should  not  enure  to  the 
body  politic  of  the  city,  but  to  the  particular  persons  of  the  corporation  who 
should  have  the  fruit  and  execution  of  the  grant  for  their  pi-ivate  wines,  and 
it  should  not  extend  to  the  wines  belonging  to  the  body  politic ;  and  so  is 
the  constant  experience  at  this  day.  So  in  the  case  of  Mellor  v.  Spateman, 
1  Saund.  343,  where  the  corporation  of  Dcrhy  claim  common  by  prescrip- 
tion, and  though  the  inheritance  of  the  common  be  in  the  body  politic,  yet 
the  particular  members  enjoy  the  fruit  and  benefit  of  it,  and  put  in  their 
own  cattle  to  feed  on  the  common,  and  not  the  cattle  belonging  to  the  cor- 
poration; but  that  is  not  indeed  our  case.  But  from  hence  it  appears  that 
evei*y  man,  that  is  to  give  his  vote  on  the  election  of  members  to  serve  in 
parliament,  has  a  several  and  a  particular  right  in  his  private  capacity,  as  a 
citizen  or  burgess.  And  surely  it  cannot  be  said,  that  this  is  so  inconsider- 
able a  right,  as  to  apply  that  maxim  to  it,  de  minimis  nan  curat  lex.  A 
right  that  a  man  has  to  give  his  vote  at  the  election  of  a  person  to  represent 
him  in  parliament,  there  to  concur  to  the  making  of  laws  which  are  to  bind 
his  liberty  and  property,  is  a  most  transcendent  thing,  and  of  an  high  nature, 
and  the  law  takes  notice  of  it  as  such  in  divers  statutes :  as  in  the  statute 
of  34  &  35  Hen.  8.  c.  13,  intituled  an  act  for  making  of  knights  and  bur- 
gesses within  the  county  and. city  of  Chester;  where  in  the  preamble  it  is 
said,  that  whereas  the  said  county  palatine  of  Chester  is  and  hath  been 
silways  hitherto  exempt,  excluded,  and  separated,  out,  and  from,  the  r^t-in^-, 
King's  *court,  by  reason  whereof  the  said  inhabitants  have  hitherto  L  J 
sustained  manifold  disherisons,  losses,  and  damages,  as  well  in  their  lands, 
goods,  and  bodies,  as  in  the  good,  civil,  and  politic  governance  and  mainte- 
nance of  the  commonwealth  of  their  said  county,  &c.  So  that  the  opinion 
of  the  parliament  is,  that  the  want  of  this  privilege  occasions  great  loss  and 
damage.  And  the  same  farther  appears  from  the  25  Car.  2.  c.  9,  an  act  to 
enable  the  county  palatine  of  Durham  to  send  knights  and  burgesses  to 
serve  in  parliament,  which  recites,  'whereas  the  inhabitants  of  the  county 
palatine  of  Durham  have  not  hitherto  had  the  liberty  and  privilege  of  elect- 
ing and  sending  any  knights  and  burgesses  to  the  high  court  of  parliament,' 
&c.  The  right  of  voting  at  the  election  of  burgesses  is  a  thing  of  the 
highest  importance,  and  so  great  a  privilege,  that  it  is  a  great  injury  to 
deprive  the  plaintiif  of  it.  These  reasons  have  satisfied  me  to  the  first 
point. 

2.  If  the  plaintiff  has  a  right,  he  must  of  necessity  have  a  means  to  vin- 
dicate and  maintain  it,  and  a  remedy  if  he  is  injured  in  the  exercise  or 
enjoyment  of  it;  and  indeed  it  is  a  vain  thing  to  imagine  a  right  without  a 
remedy ;(i)  for  want  of  right  and  want  of  remedy  are  reciprocal.     As  if  a 
(i)  D.  ace.  6.    Co.  58,  b. 


304  smith's    leading   cases. 

purchaser  of  an  advowson  in  fee-simple,  before  any  presentment,  suffer  an 
usurpation,  and  six  months  to  pass,  without  bringing  his  quare  impedit, 
he(/L-)  has  lost  his  right  to  the  advowson,  because  he  has  lost  his  qtiare  im- 
pedit, which  was  his  only  remedy;  for  hc('^j  could  not  maintain  a  writ  of 
right  of  advowson;  and  though  he  afterwards  usurp  and  die,  and  the  advow- 
son descend  to  his  heir;  yet(^?».)  the  heir  cannot  be  remitted,  but  the  advow- 
son is  lost  for  ever  without  recovery.  6  Co.  50.  Where  a  man  has  but 
one  remedy  to  come  at  his  right,  if  he  loses  that  he  loses  his  right.  It 
would  look  very  strange,  when  the  Commons  of  England  are  so  fond  of 
their  right  of  sending  representatives  to  parliament,  that  it  should  be  in  the 
power  of  a  sheriff  or  other  officer  to  deprive  them  of  that  right,  and  yet 
that  they  should  have  no  remedy;  it  is  a  thing  to  be  admired  at  by  all 
mankind.  Supposing  then  that  the  plaintiff  had  a  right  of  voting,  and  so 
it  appears  on  the  record,  and  the  defendant  has  excluded  him  from  it, 
nobody  can  say,  that  the  defendant  has  done  well ;  then  he  must  have  done 
r*io-n  ^^^j  ^'^^  ^^®  ^^'^  deprived  the  plaintiff  of  his  right;  so  that  the  *plain- 
L  -'  tiff  having  a  right  to  vote,  and  the  defendant  having  hindered  him 
of  it,  it  is  an  injury  to  the  plaintiff.  Where  a  new  act  of  parliament  is 
made  for  the  benefit  of  the  subject,  if  a  man  be  hindered  from  the  enjoy- 
ment of  it,  he  shall  have  an  action  against  such  person  who  so  obstructed 
him.  IIow  else  comes  an  action  to  be  maintainable  by  the  party  on  the 
statute  of  2  Ric.  2,  dc  scandalls  magnatum,  12  Co.  134,  but  in  consequence 
of  law  ?  For  the  statute  was  made  for  the  preservation  of  the  public  peace, 
and  that  is  the  reason  that  no  writ  of  error  lies  in  the  Exchequer  Chamber 
by  force  of  the  statute  of  27  Eliz.  in  a  judgment  in  the  King's  Bench  on 
an  action  de  scandalis,  for  it  is  not  included  within  the  words  of  the  statute; 
for  though  the  statute  says,  such  writ  shall  lie  upon  judgments  in  actions 
on  the  case,  yet  it  does  not  extend  to  that  action,  although  it  be  an  action 
on  the  case,  because(«)  it  is  an  action  of  a  far  higher  degree,  being  founded 
specially  upon  a  statute,  1  Cro.  142.  If  then,  when  a  statute  gives  a  right, 
the  party  shall  have  an  action  for  the  infringement  of  it,  is  it  not  as  forcible 
when  a  man  has  his  right  by  the  common  law  ?  This  right  of  voting  is  a 
right  in  the  plaintiff  by  the  common  law,  and  consequently  he  shall  main- 
tain an  action  for  the  obstruction  of  it.  But  there  wants  not  a  statute  too 
in  this  case,  for  by  AVest.  1,  3  Edw.  1,  c.  5,  it  is  enacted,  "that  forasmuch 
as  elections  ought  to  be  free,  the  king  forbids,  upon  grievous  forfeiture,  that 
any  great  man,  or  other,  by  power  of  arms,  or  by  malice,  or  menaces,  shall 
disturb  to  make  free  election.''  2  Inst.  ]68,  169.  And  this  statute,  as 
my  Lord  Coke  observes,  is  only  an  enforcement  of  the  common  law;  and  if 
the  parliament  thought  the  freedom  of  election  to  be  a  matter  of  that  con- 
sequence, as  to  give  their  sanction  to  it,  and  to  enact  that  they  should  be 
free ;  it  is  a  violation  of  that  statute  to  disturb  the  plaintiff  in  this  case  in 
giving  his  vote  at  an  election,  and  consequently  actionable. 

And  I  am  of  opinion,  that  this  action  on  the  case  is  a  proper  action.  My 
brother  Powell  indeed  thinks,  that  an  action  upon  the  case  is  not  maintain- 
able, because  here  is  no  hurt  or  damage  to  the  plaintiff;  but  surely  every 
injury  imports  a  damage,  though  it  does  not  cost  the  party  one  farthing,  and 

(k)  Sed  nunc  vide  7  Ann.  c,  18.  (Z)  Vide  H.  Bl.     1  Lit.  s.  514.    Co.  Lit.  293.  a, 

(m)  Vide  6  Co.  58.  (n)  Vide  1  Bl.  Com.  88. 


ASHBY    Y.     WHITE     ET     ALIOS.  305 

it  is  impossible  to  prove  the  contrary;  for  «  damage  is  not  mcrelij pecuniary, 
hut  an  iiijurij  imjwrts  a  damaye,*  tclien  a  man  is  tlierelty  hindered  r^-iop-i 
of  his  ri(jht.  As  in  an  action  for  slanderous  words,  though  a  man  L  -^ 
does  not  lose  a  penny  by  reason  of  the  speaking  them,  yet  he  shall  have  an 
action.  So  if  a  man  gives  another  a  cuff  on  the  ear,  though  it  cost  him 
nothing,  no  not  so  much  as  a  little  diachi/louy  yet  he  shall  have  his  action, 
for  it  is  a  personal  injury.  So  a  man  shall  have  an  action  against  another 
for  riding  over  his  ground,  though  it  do  him  no  damage  :  for  it  is  an  inva- 
sion of  his  property,  and  the  other  has  no  right  to  come  there;  and  in  these 
cases  the  action  is  brought  vi  et  armis.  But  for  invasion  of  another's  fran- 
chise trespass  vi  et  or??M's  does  not  lie,  but  an  action  of  trespass  on  the  case; 
as  where  a  man  has  retorna  hrevium,  he  shall  have  an  action  against  any 
one  who  enters  and  invades  his  franchise,  though  he  lose  nothing  by  it.  So 
here  in  the  principal  case,  the  plaintiff  is  obstructed  of  his  right,  and  shall 
therefore  have  his  action.  And  it  is  no  objection  to  say,  that  it  will  occa- 
sion multiplicity  of  actions;  for  if  men  will  multiply  injuries,  actions  must 
be  multiplied  too,  for  every  man  that  is  injured  ought  to  have  his  recom- 
pense. Suppose  the  defendant  had  beat  forty  or  fifty  men,  the  damage  done 
to  each  one  is  peculiar  to  himself,  and  he  shall  have  his  action.  So  if  many 
persons  receive  a  private  injury  by  a  public  nuisance,  every  man  shall  have 
his  action,  as  is  agreed  in  Williams'  case,  5  Co.  73,  a. ;  and  Westbury  and 
Powell,  Co.  Lit.  56,  a.  Indeed,  where  many  onen  are  offended  hy  one  "par- 
ticular act,  there  they  omist  proceed  hy  way  of  indictm^ent,  and  not  of 
action }  for  in  that  case  the  law  ivill  not  multiply  actions.  But  it  is  other- 
wise, when  one  man  only  is  offended  by  that  act,  he  shall  have  his  action; 
as  if  a  man  dig  a  pit  in  a  common,  every  commoner  shall  have  an  action  on 
the  case  per  quod  communiam  suam  in  tarn  amplo  modo  habere  non  potuit ; 
for  every  commoner  has  a  several  right.  But  it  would  be  otherwise  if  a 
man  dig  a  pit  in  a  highway;  every  passenger  shall  not  bring  his  action,  but 
the(o)  party  shall  be  punished  by  indictment,  because  the  injury  is  general 
and  common  to  all  that  pass.  But  when  the  injury  is  particular  and  pecu- 
liar to  every  man,  each  man  shall  have  his  action.  In  the  case  of  Turner 
V.  Sterling,  the  plaintiff  was  not  elected ;  he  could  not  give  in  evidence  the 
loss  of  his  place  as  a  damage,  for  he  was  never  in  it;  but  the  gist  of  the 
action  is,  that  the  plaintiff  having  a  right  to  stand  for  *the  place,  and  p^j^-ioY-. 
it  being  difficult  to  determine  who  had  the  majority,  he  had  there-  L  "  J 
fore  a  right  to  demand  a  poll,  and  the  defendant,  by  denying  it,  was  liable 
to  an  action.  If  public  officers  will  infringe  men's  rights,  they  ought  to 
pay  greater  damages  than  other  men,  to  deter  and  hinder  other  officers  from 
the  like  offences.  So  the  case  of  Hunt  and  Dowman,  2  Cro.  478,  where  an 
action  on  the  case  is  brought  by  him  in  reversion  against  lessee  for  years, 
for  refusing  to  let  him  enter  into  the  house,  to  see  whether  any  waste  wa 
committed.  In  that  case  the  action  is  not  founded  on  the  damage,  for  is 
did  not  appear  that  any  waste  was  done,  but  because  the  plaintiff  was  hin- 
dered in  the  enjoyment  of  his  right,  and  surely  no  other  reason  for  the  action 
can  be  supposed. 

But  in  the  principal  case,  my  brother  says  w^e  cannot  judge  of  this  mat 
ter,  because  it  is  a  parliamentary  thing.     O  !  by  all  means,  be  very  tender 

(o)  Videanle,  48&. 

Vol.  I.— 20 


306  smith's   leading    cases. 

of  that.  BosiJos,  it  is  intricate,  that  there  may  be  contrariety  of  opinions. 
But  this  matter  can  never  come  in  question  in  parliament,  for  it  is  agreed 
that  the  persons  for  whom  the  plaintiff  voted  were  elected,  so  that  the  action 
is  brought  for  being  deprived  of  his  vote ;  and  if  it  were  carried  for  the 
other  candidates  against  whom  he  voted,  his  damage  would  be  less.  To 
allow  this  action  will  make  public  officers  more  careful  to  observe  the  con- 
stitution of  cities  and  boroughs,  and  not  to  be  so  partial  as  they  commonly 
arc  in  all  elections,  which  is  indeed  a  groat  and  growing  mischief,  and  tends 
to  the  prejudice  of  the  peace  of  the  nation.  But  they  say,  that  this  is  a 
matter  out  of  our  jurisdiction,  and  we  ought  not  to  enlarge  it.  I  agree  we 
ought  not  to  encroach  or  enlarge  our  jurisdiction ;  by  so  doing  we  usurp 
both  on  the  right  of  the  queen  and  the  people  j  but  sure  we  may  determine 
on  a  charter  granted  by  the  king,  or  on  a  matter  of  custom  or  prescription, 
when  it  comes  before  us,  without  encroaching  on  the  parliament.  And  if 
it  be  a  matter  within  our  jurisdiction,  we  are  bound  by  our  oaths  to  judge 
of  it.  This  is  a  matter  of  property  determinable  before  us.  Was  ever 
such  a  petition  heard  of  in  parliament,  as  that  a  man  was  hindered  of  giv- 
ing his  vote,  and  praying  them  to  give  him  remedy?  The  parliament 
r*inQ~l  "iitl'^ubtedly  would  say,  take  your  remedy  at  law.  It  is  not  like 
L  -'  the  *case  of  determining  the  right  of  election  between  the  candi- 
dates. 

My  brother  Powell  says,  that  the  plaintiff's  right  of  voting  ought  first  to 
have  been  determined  in  parliament,  and  to  that  purpose  cites  the  opinion 
of  my  Lord  Hobart,  318,  that  the  patron  may  bring  his  action  upon  the 
case  against  the  ordinary  after  a  judgment  for  him  in  a  qnare  impedit^  but 
not  before.  It  is  indeed  a  fine  opinion,  but  I  do  not  know  whether  it  will 
bear  debating,  and  how  it  will  prove,  when  it  comes  to  be  handled.  For  at 
common  law  the  patron  had  no  remedy  for  damages  against  the  disturber, 
but  the  statute  13  Ed.  1,  st.  1,  c.  5,  s.  8,  gives  him  damages;  but  if  he 
will  not  make  the  bishop  a  party  to  the  suit,  he  has  lost  his  remedy  which 
the  statute  gives  him.  But  in  our  case  the  plaintiff  has  no  opportunity  to 
have  remedy  elsewhere.  My  brother  Powys  has  cited  the  opinion  of  Little- 
ton on  the  statute  of  Merton,  that  no  action  lay  upon  the  words,  ^'si  paren- 
tes  conquerantiw,"  because  none  had  ever  been  brought,  yet  he  cannot 
depend  upon  it.  Indeed,  that  is  an  argument,  when  it  is  founded  upon 
reason,  but  it  is  none  when  it  is  against  reason.  But  I  will  consider  the 
opinion.  Some  question  had  arisen  on  the  opening  of  that  statute  on  those 
words,  "  si  parentes  conquerantur,"  &c.,  what  was  the  meaning  of  them, 
whether  they  meant  a  complaint  in  a  court  in  a  judicial  manner.f  But 
it(p)  is  plain  the  word  ^^  conquer antu/'  means  only  "  si  parentes  lamenten- 
tur,"  that  is,  only  a  complaint  in  pais,  and  not  in  a  court :  for  the  guar-' 
dian  in  socage  shall  enter  in  that  case,  and  shall  have  a  special  writ  de 
ejcctione  custodlse  terrse  et  hxredis.  But  this  saying  has  no  great  force ;  if 
it  had,  it  would  have  been  destructive  of  many  new  actions,  which  are  at 

t  That  usage  may  explain  tlie  meaning  of  an  ancient  statute,  see  Rex  v.  Scot,  3  T.  R. 
GOl;  Sheppard  v.  Gosnold,  Vaugli.  1G9.  [Dunbar  v.  Roxburgh,  3  CI.  &,  Fin.  335.]  In 
Bank  of  England  v.  Anderson,  3  Bing.  N.  C.  GG6,  per  Tindal,  C.  J.— "We  attribute  great 
weight  to  that  maxim  of  1  iw,  contemporanea  cxposilio  fortissima  est  in  lege.^'  And  tliis 
is  said  with  reference  to  a  statute  no  older  than  5  &,  6  \V.  6i,  M. 

ip)  Vide  Lilt.  108. 


ASHBY    V.     WHITE     ET    ALIOS.  307 

tills  day  held  to  be  good  law.  The  case  of  Hunt  and  Dowman,  before  men- 
tioned, was  the  first  action  of  that  nature ;  but  it  was  grounded  on  the  com- 
mon reason  and  the  ancient  justice  of  the  law.  So  the  case  of  Turner  and 
Sterling.  Let  us  consider  wherein  the  law  consists,  and  we  shall  find  it  to 
be,  not  in  particular  instances  and  precedents,  but  in  the  reason  of  the  law, 
and  uhi  eadem  ratio,  iht  idem  jus.  This  privilege  of  voting  does  not  diiFer 
from  any  other  franchise  whatsoever.  If  the  House  of  Commons  do  deter- 
mine this  matter,  it  is  not  that  they  have  an  original  *right,  but  ^-ioq-, 
as  incident  to  elections.  But  we  do  not  deny  them  their  right  of  L  '"  -• 
examining  elections ;  but  we  must  not  be  frighted  when  a  matter  of  pro- 
perty comes  before  us,  by  saying  it  belongs  to  the  parliament ;  we  must 
exert  the  queen's  jurisdiction.  My  opinion  is  founded  on  the  law  of  Eno-- 
land.  The  case  of  Mors  and  Slue,  1  Vent.  190,  238,  was  the  first  action 
of  that  nature  :  but  the  novelty  of  it  was  no  objection  to  it.  So  the  case 
of  Smith  and  Grashaw,  1  Cro.  15,  W.  Jones,  93,  that  an  action  of  the  case 
lay  for  falsely  and  maliciously  indicting  the  plaintiif  for  treason,  though  the 
objections  were  strong  against  it,  yet  it  was  adjudged,  that  if  the  prosecu- 
tion were  without  probable  cause,  there  was  as  much  reason  the  action 
should  be  maintained  as  in  other  cases.  So  15  Car.  2,  C.  B.,  between 
Bodily  and  Long,  it  was  adjudged  by  Bridgman,  chief  justice,  &c.,  that  an 
action  on  the  case  lay  for  a  riding  whenever  the  plaintiff"  and  his  wife 
fought,  for  it  was  a  scandalous  and  reproachful  thing.  So  in  the  case  of 
Herring  and  Finch,  2  Lev.  250,  nobody  scrupled  but  that  the  actien  well 
lay,  for  the  plaintiff  was  thereby  deprived  of  his  right.  And  if  an  action 
is  maintainable  against  an  officer  for  hindering  the  plaintiff"  from  voting  for 
a  mayor  of  a  corporation,  who  cannot  bind  him  in  his  liberty  nor  estate,  to 
say  that  yet  this  action  will  not  lie  in  our  case,  for  hindering  the  plaintiff  to 
vote  at  an  election  of  his  representative  in  parliament,  is  inconsistent. 
Therefore,  my  opinion  is,  that  the  plaintiff  ought  to  have  judgment. 

Friday,  the  14th  of  January,  1703,  thisCa)  judgment  was  reversed  in  the 
House  of  Lords,  and  judgment  given  for  the  plaintiff  by  fifty  lords  against 
sixteen.  Trevor,  chief  justice,  and  baron  Price  were  of  opinion  with  the  three 
judges  of  the  King's  Bench.  Ward,  C.  B,,  and  Bury  and  Smith,  barons, 
were  of  opinion  with  the  Lord  Chief  Justice  Holt,  Tracy  dubitante,  Nevill 
and  Blencowe,  absent. 

(Xote. — I  had  it  from  good  hands,  that  Tracy  agreed  clearly  that  the 
action  lay,  but  was  doubtful  upon  the  manner  of  laying  the  declaration.) 

Upon  the  arguments  of  this  case.  Holt,  chief  justice,  said,  the  plaintiff 
has  a  particular  right  vested  in  him  to  vote.  Is  it  not  then  a  wrong,  and  an 
injury  to  that  right,  to  refuse  to  receive  his  vote  ?  So  if  a  borough  ^.^^  oa-i 
has  a  right  *of  common,  and  the  freemen  are  hindered  from  enjoy-  L  J 
ing  it  by  inclosure  and  the  like,  every  freeman  may  maintain  his  action. 
This  action  is  brought  by  the  plaintiff,  for  the  infringement  of  his  franchise. 
You  would  have  nothing  to  be  a  damage,  but  what  is  pecuniary,  and  a 
damage  to  property.  If  a  man  has  retorna  brevium,  although  no  fees  were 
due  to  him  at  common  law,  yet  if  the  sheriff  enters  within  his  liberty,  and 
executes  process  there,  it  is  an  invasion  of  his  franchise,  and  he  may  bring 
his  action;  and  there  is  the  same  reason  in  this  case.      Although  this  matter 

(a)  Vide  1  Bro.  Pari.  Cas.  45. 


i 


308 


SMITHS     LEADING     CASES. 


relates  to  the  parliament,  yet  it  is  an  injury  precedaneous  to  the  parliament,  as 
my  Lord  Hale  said  in  the  case  of  Bernardiston  v.  Soame,  2  Lev.  114,  116. 
The  parliament  cannot  judge  of  this  injury,  nor  give  damage  to  the  plaintiff 
for  it :  they  cannot  make  him  a  recompense.  Let  all  people  come  in,  and 
vote  fairly :  it  is  to  support  one  or  the  other  party  to  deny  any  man's  vote. 
By  my  consent,  if  such  an  action  comes  to  be  tried  before  me,  I  will  direct 
the  jury  to  make  him  pay  well  for  it;  it  is  denying  him  his  English  right : 
and  if  this  action  be  not  allowed,  a  man  may  be  for  ever  deprived  of  it.  It 
is  a  great  privilege  to  choose  such  persons  as  are  to  bind  a  man's  life  and 
property  by  the  laws  they  make. 


Asliby  V.  White  is  usually  cited  to  ex- 
eiripiity  that  maxim  of  the  law,  ubi  jus 
ibi  reinedium;  a  maxim  which  has  at 
all  times  been  considered  so  valuable, 
that  it  gave  occasion  to  the  first  inven- 
tion of  that  form  of  action  called  an 
action  on  the  case.  For  the  statute  of 
Westminster  2,  13  Ewd.  1,  c.  24,  which 
is  only  in  affirmance  of  the  common  law 
on  this  subject,  and  was  passed  to  quicken 
the  diligence  of  the  clerks  in  the  chan- 
cery, who  were  too  much  attached  to 
ancient  precedents,  enacts,  that  "  when- 
soever from  thenceforth  a  writ  shall  be 
found  in  the  chancery,  and  in  a  like 
case  falling  under  the  same  right,  and 
requiring  like  remedy,  no  precedent  of 
a  writ  can  be  produced,  the  clerks  in 
chancery  shall  agree  in  forming  a  new 
one  ;  and  if  they  cannot  agree,  it  shall 
be  adjourned  till  the  next  parliament, 
where  a  writ  shall  be  framed  by  consent 
of  the  learned  in  the  law,  lest  it  happen 
for  the  future  that  the  court  of  our  lord 
the  king  be  deficient  in  doing  justice  to 
the  suitors."  Accordingly  the  courts 
have  always  held  that  the  novelty  of  the 
particular  complaint  alleged  in  an  action 
on  the  case,  is  no  objection,  provided  an 
injury  cognizable  by  law  be  shown  to 
have  been  inflicted  on  the  plaintiff'. 
Thus,  in  Chapman  v.  Pickersgill,2  Wil- 
son, 146,  which  was  an  action  for  falsely 
and  maliciously  suing  out  a  commission 
of  bankruptcy,  Pratt,  C.  J.,  in  answer  to 
the  objection  that  the  action  was  of  a 
novel  description,  said,  that  "this  had 
been  urged  in  Ashby  v.  White,  but  he 
did  not  wish  ever  to  hear  it  again.  This 
was  an  action  for  tort ;  torts  were  infin- 
r*1'^n  ''^^'^  various,  for  there  was  not 
L  J  *any  thing  in  nature  that  might 
not  be  converted  into  an  instrument  of 
mischief."     So  in  Pasley  v.  Freeman,  3 


T.  R.  63,  per  Ashhurst,  J. :  "  Another 
argument  which  has  been  made  use  of, 
is,  that  this  is  a  new  case,  and  that  there 
is  no  precedent  of  such  an  action. 
Where  cases  are  new  in  their  principle, 
there  I  admit  that  it  is  necessary  to  have 
recourse  to  legislative  interposition  in 
order  to  remedy  the  grievance ;  but 
where  the  case  is  only  new  in  the  in- 
stance, and  the  only  question  is  upon  the 
application  of  a  principle  recognised  in 
the  law  to  such  new  case,  it  will  be  just 
as  competent  to  courts  of  justice  to  ap- 
ply the  principle  to  any  case  that  may 
arise  two  centuries  hence  as  it  was  two 
centuries  ago.  If  it  were  not  so,  we 
ought  to  blot  out  of  our  law  books  one 
fourth  part  of  the  cases  that  are  to  be 
found  in  them."  In  Winsniore  v.  Green- 
bank,  Willes,  577,  the  declaration  stated 
that  the  plainlifl^"'s  wife  unlawfully,  and 
against  his  consent,  went  away  and  ab- 
sented herself  from  him,  and  that  during 
her  absence  a  large  estate  was  devised 
to  her  separate  use  ;  that  she  thereupon 
became  desirous  of  being  reconciled  and 
cohabiting  with  her  husband,  but  that 
the  defendant  persuaded  and  enticed  her 
to  continue  apart  till  her  death,  which 
she  did ;  whereby  the  plaintiff'  lost  the 
comfort  and  society  of  his  wife,  and  her 
assistance  in  his  domestic  affairs,  and  the 
profit  and  advantage  of  her  fortune.  On 
motion  in  arrest  of  judgment  it  was  ob- 
jected that  the  action  was  unprecedent- 
ed ;  but  Willes,  C.  J.,  said  "that  the 
form  ofaction  on  the  case  was  introduced 
for  this  reason,  that  the  law  would  never 
suffer  an  injury  and  a  damage  without 
a  remedy,  and  that  there  must  be  new 
facts  in  every  special  action  on  the  case." 
Numerous  other  instances  might  here  be 
cited,  but  this  in  so  clear  a  matter  seems 
unnecessary.      See    the    jtidgment    in 


ASHBY    V.     WHITE     ET    ALIOS. 


309 


Langridge  v.  Levy,  2  Mee.  &  Welsby, 
519. 

The  class  of  cases  from  which  it  is 
important  to  distinguish  Ashby  v.  White, 
&c.,  are  those  in  which  a  damage  is  in- 
curred by  the  plaintiff,  but  a  damage  not 
occasioned  by  anything  which  the  law 
esteems  an  injury.  In  such  cases  as 
these  he  is  said  to  suffer  damnum  sine 
injuria,  and  can  maintain  no  action. 
[Thus,  in  the  case  of  Pryce  v.  Belcher, 
r*lS1  1  "reported  on  demurrer,  3  C.  B. 
^  -I  58,  and  aflerwards  on  a  motion 

to  enter  a  verdict  for  the  plaintiff,  4  C. 
B.  866,  which  presents  some  features  of 
resemblance  to  Ashby  v.  White,  it  ap- 
peared that  Mr.  Pryce,  who  was  regis- 
tered as  a  voter  -  for  the  borough  of 
Abingdon,  but  who  in  consequence  of 
non-residence,  had  by  the  effect  of  6  & 
7  Y.  c.  ]8,  s?.  79,  in  fact  lost  the  right  to 
vote,  had  notwithstanding  tendered  his 
vote  at  an  election  for  the  borough ; 
whereupon  Mr.  Belcher,  the  returning 
ofHcer,  exceeding  the  limits  of  his  duty, 
which,  by  6  &  7  V.  c.  18,  s.  79,  was 
confined  to  putting  the  questions  as  to 
the  identity  of  the  voter,  and  whether 
he  had  voted  before  at  the  election,  wil- 
fully, but  not  maliciously,  instituted  an 
inquiry  into  Mr.  Pryce's  right  to  vote, 
and  upon  his  appearing  not  to  be  duly 
qualified  in  point  of  residence,  recused  to 
receive  the  vote  except  as  tendered,  and 
did  not  include  or  reckon  it  amongst  the 
votes  given  for  the  candidate  for  whom 
Mr.  Pryce  desired  to  vote.  An  action 
upon  the  case  was  thereupon  brought  by 
Mr.  Pryce,  in  which  he  declared  in  one 
count  for  the  refusal  to  permit  him  to 
vote,  in  another  for  the  omission  of  his 
vote  in  the  account  of  the  poll,  and  in 
a  third  for  the  unauthorised  scrutiny  and 
decision  upon  his  right  to  vote,  whereby, 
as  he  alleged,  he  was  delayed  and  hin- 
dered in  the  exercise  of  his  right,  all 
which  counts  were  holden  to  present 
good  prima  facie  causes  of  action,  3  C. 
B.  58.  But  it  was  finally  decided  that 
the  plaintiff  could  not  maintain  his 
action,  on  the  ground  stated  in  the  judg- 
ment, "  that  although  a  party  in  the 
situation  of  the  plaintiff  has  the  power 
tn  compel  the  returning  officer,  under 
liie  up,jreheiision  of  a  prosecution,  to  put 
his  name  upon  the  poll,  he  has  not  the 
ri^''ht  to  do  so;  that  in  doing  so  he  is  act- 
ing in  direct  contravention  of  the  act  of 
parliament,  the  terms  of  which  are  ex- 
press '  that  he  shall  not  be  entitled  to 
vote ;'  and  that  the  rejection  of  his  vote 


cannot  amount  to  a  violation  of  anything 
which  the  jaw  can  consider  as  his  right. 
The  foundation  of  the  plaintiff's  action 
is  the  injury  to  his  right;  but  we  are  of 
opinion,  tor  the  reason  above  given,  that 
be  has  7io  right,  and,  consequently,  that 
he  has  suffered  no  injury."  More  strik- 
ing instances  of  damnum  absque  injuria, 
occur  in  legal  proceedings,  instituted  for 
the  bona  fide  purpose  of  asserting  some 
supposed  right,  or  prosecuting  a  criminal 
charge,  which  however  in  the  event 
proves  groundless.  In  such  cases,  in 
order,  it  would  seem,  to  facilitate  the 
administration  of  justice,  it  is  established 
that  unless  there  be  both  malice  and  an 
absence  of  reasonable  and  probable  cause, 
the  person  against  whom  the  proceedings 
are  taken  has  no  legal  ground  of  action. 
See  the  note(c)  to  *Skinner  v.  r^,qir-, 
Gunton,lWm.  Saund.,230«;and  L  ■^'^^''J 
for  modern  instances  see  Gibbs  v.  Pike,  9 
M.  &  W^.  351,  where  one,  who,  without 
malice,  had  registered  under  1  &  2  Vict, 
c.  110,  an  order  which,  as  he  contended, 
had  the  effect  of  a  judgment,  was  holden 
justified,  without  regard  to  whether  it 
had  that  eftect,  or  was  properly  regis- 
tered or  not;  Da  vies  v.  Jenkins,  11  M. 
&  W.  745,  where  an  attorney,  by  mis- 
take, sued  to  judgment  and  execution  a 
person  of  the  same  name  as  the  intended 
defendant;  De  Medina  v.  Grove,  10  Q. 
B.  152  (since  affirmed),  where  a  judg- 
ment debtor  was  taken  in  execution  for 
more  than  was  due  on  the  judgment 
(secus  where  the  amount  is  agreed, 
Wentworlh  v.  BuUen,  9  B.  &  C.  840); 
Roret  V.  Lewis,  Exch.,  19  Jan.  1848,  17 
L.  J.  99,  where  a  person  privileged  from 
arrest  was  nevertheless  arrested  through 
malice,  but  not  without  reasonable  or 
probable  cause.  The  immunity  of  cer- 
tain privileged  or  confidential  state- 
ments, defamatory  of  third  persons,  on 
the  ground  that  they  are  made  bona  fide 
in  the  assertion  of  a  right,  or  the  per- 
formance of  a  duty,  or  that  they  are  fair 
criticism  upon  matter  of  public  interest, 
furnishes  another  head  of  damnum 
absque  injuria.  In  such  cases,  generally 
speaking,  however  harsh,  hasty,  or  un- 
true may  be  the  language  employed,  so 
long  as  it  is  honestly  believed  by  the 
speaker  or  writer  to  be  true,  it  does  not 
furnish  a  legal  ground  of  action.  See 
Dodd  V.  Hawkins,  8  C.  &  P.  88,  per  Al- 
derson,  B.  The  extent  and  application 
of  this  doctrine  have  lately  been  the  sub- 
ject of  much  discussion  and  diflerence  of 
opinion.     See  Coxhead  v.  Richards,  2  C. 


310 


SMITHS    LEADING     CASES. 


B.  5G9;  Blackburn  v.  Pugli,  ibitl,611; 
Bennett  v.  Deacon,  ibid.  6'2'6;  Gathercole 
V.  Miull,  15  M.  &  W.  319.  Acts  done 
b}''  way  of  self-defence  against  a  common 
enemy,  such  as  the  erection  of  banks  to 
prevent  the  inroads  of  the  sea,  fall  within 
the  same  rule,  and  damage  resulting 
therefrom  is  not  actionable,  Rex  v.  Pag- 
Iiam,  8  B.  &  C.  355;  2  Man.  &  R.  468, 
S.  C. ;  per  curiam,  Scott  v.  Shepherd,  2 
Blackstone,  692,  post  210.  Instances 
might  be  multiplied  in  which  wrongs  the 
most  grievous  are  without  legal  redress. 
The  seduction  of  a  daughter  not  in  her 
father's  service  actual  or  constructive, 
Blaymire  v.  Haley,  6  M.  &  VV.  55; 
Davies  v.  Williams,  10  Q.  B.  725;  even 
though  the  father  be  thereby  forced  to 
maintain  her,  Grinnell  v.  Wells,  8  Scott, 
N.  R.  741 ;  the  seduction  of  a  daughter 
in  her  father's  service,  unless  an  actual 
loss  of  service  accrue.  Eager  v.  Grim- 
wood,  1  Exch.  61  (quod  mirum)  are 
damna  absque  injuria.  So  before  the 
recent  act  of  parliament,  9  &  10  Vict. 
c.  93,  "for  compensating  the  families  of 
persons  killed  by  accidents,"  no  action 
at  law  was  maintainable  against  a  per- 
son, who,  by  his  wrongful  act,  neglect, 
or  default,  may  have  caused  the  death  of 
r*131c1  *^"o^lier,  though  under  cir- 
•-  ^  cumstances  which  would  have 

given  the  sufferer  a  right  of  action  had 
he  survived;  and  the  husband,  wife, 
parent,  or  children  of  the  deceased  were 
without  remedy  against  the  wrong  doer, 
by  whom  they  had  been  deprived  of  com- 
fort and  support.  The  case  of  the  school 
set  up  near  another  school,  reported  H. 
11  H,  4,  fo.  47,  pi.  21,  is  one  of  the 
earliest  on  the  subject  of  damage  with- 
out legal  cause  of  action,  and  possesses 
much  interest;  and  others  are  referred 
to  in  Comyns's  Digest,  titles  Action  upon 
the  Case  (B),  and  Action  upon  the  Case 
for  a  Nuisance  (C),  in  which  serious 
damages,  even  actual  nuisances,  have 
under  the  circumstances,  been  holden 
not  actionable,  as  being  either  not  tem- 
poral injuries,  or  only  such  as  must  be 
expected  to  result  from  the  reasonable 
exercise  of  legal  rights.]  Thus,  if  a 
man  establish  an  offensive  trade  near  my 
dwelling-house,  so  as  to  render  it  un- 
comfortable, I  may  maintain  an  action 
on  the  case  against  him  for  a  nuisance, 
for  here  is  damnum  coupled  with  in- 
juria. But  if  I  build  my  house  near 
-  his  premises,  at  all  events  if  they  have 
been  so  used  for  twenty  years,  the  case 
is  altered ;  and,  although  I  have  damnum, 


yet  I  shall  maintain  no  action,  since  it  is 
not  coupled  with  what  the  law  considers 
injuria.  Such,  too,  it  was  once  thought, 
might  be  the  law,  even  if  the  new  comer 
had  built  within  the  twenty  years,  since 
otherwise  a  man  setting  up  an  offensive 
trade  even  in  the  remotest  spot  might  be 
ruined  by  the  first  person  who  chose  to 
come  and  dwell  near  him  within  twenty 
years.  In  Bliss  v.  Hall,  4  Bing.  N.  C. 
185,  some  expressions  however  dropped 
from  the  court  from  which  it  may  be 
thought  that  their  lordships'  opinion  was 
that  nothing  but  a  twenty  years'  user 
will  entitle  a  man  to  carry  on  an  offen- 
sive trade  without  interruption.  The 
point  was  not  however  necessary  for  the 
decision  of  that  case  or  that  of  Elliofson  v. 
Feetham,  on  the  authority  of  which  it 
was  decided.  In  those  cases  to  an  action 
for  a  nuisance  to  plaintiff's  dwelling- 
house,  a  plea  that  the  noisome  trade  was 
established  before  the  plaintiff  became 
possessed  of  the  dwelling-house  was  held 
bad.  Non  constat  however  what  would 
have  been  the  decision  had  the  plea 
alleged  that  the  defendant  carried  on  the 
trade  there  before  the  building  of  the 
plaintiff's  house.  [See  Flight  v. 
Thomas,  10  Ad.  &  El.  590.]  On  the 
same  principle — viz.  that  damage,  to 
sustain  an  action,  must  be  coupled  with 
injury — if  A.  build  a  house  on  the  edge 
of  his  land,  and  the  proprietor  of  the  ad- 
joining land,  after  twenty  years,  dig  so 
near  it  that  it  fall  down,  an  action  on  the 
case  lies,  because  the  plaintiff  has,  by 
twenty  years'  use,  acquired  a  prescrip- 
tive right  to  the  support,  and  to  infringe 
that  right  was  an  injury.  Stansell  v. 
Jollard,  S.  N.  P.  444.  See  Harris 
V.  Ryding,  5  M.  &-  W.  60;  Hide 
V.  Thornborough,  2  Car.  &  K.  250.] 
*But  it  is  otherwise  if  the  r*ioi7-j 
owner    of   land    adjoining    a    '-  -• 

newly-built  house  dig  in  a  similar  man- 
ner, and  produce  similar  results,  for 
there,  though  there  is  damage,  yet,  as 
there  is  no  right  to  support,  there  is  no 
injury  committed  by  withdrawing  it, 
and  therefore  no  action  maintainable. 
Partridge  v.  Scott,  3  Mee.  &  W.  220. 
Wyatt  v.  Harrison,  3  B.  &  Ad.  871. 
But  then  the  person  digging  must  not  do 
so  negligently,  otherwise  he  is  liable  to 
action.  See  Dodd  v.  Holme,  1  A.  &  E. 
493;  Grocers'  Co.  v.  Donne,  3  Bing.  N. 
C.54;  Trower  v.  Chadwick,  3  Bing.  N. 
C.  334,  and  the  same  case  reversed  in 
C.  S.  6  Bing.  N.  C.  1.  [Davis  v.  London 
and    Blackwall    Railway,  1  M.  &,  Gr. 


ASHBY    V.    WHITE     ET    ALIOS. 


ill 


799,  2  Sc.  N.  R.  72,  S.  C. ;  Bradbee  v. 
Mayor  of  London,  5  S.  C.  N.  R,  79,  4 
M.  Si  Gr.  714,  2  Dowl.  N.  S.  161,  S. 
C]     The  maxim  which  governs  these 
cases   is   Sic  utere  tito  tit  alienum  ne 
ladas.     Therefore  A.  may  be  sued  for 
so  negligently  erecting  a  hay-rick  on 
the  edge  of  his  land  that  it  ignites  and 
burns  his  neighbour's  house,   Vaughan 
V.  Menlove,  3  Bing.  N.  C.  463 ;  [notwith- 
standing 6  Anne,  c,  31,  and  14  Geo.  3, 
c.  73,  which  do  not,  it  seems,  apply  to 
fires  traceable  to  negligence.     See  the 
observations  of  Lord  Lyndhurst  in  Vis- 
count Canterbury  v.  The  Attorney  Gen- 
eral,  1    Phillips,  306,    and   Filliler  v. 
Phippard,  11  Q.  B.  347,  where  the  sub- 
ject of  liability  for  damage  by  fire  was 
discussed.    For  examples  of  the  general 
rule  in  cases  of  fire  caused  by  railway 
engines,   see    Aldridge   v.    The    Great 
Western  Railway,  3  M.  &  Gr.  .515,  4 
Scott,  N.  R.  156,  1  Dowl.  N.  S.  247, 
S.  C. ;  Piggott  V.  The  Eastern  Counties' 
Railway,  3  C.  B.  229.     And  as  to  the 
liability  of  a  gas  company  for  an  explo- 
sion caused  by  the  escape  of  gas  through 
a  stop-cock  over  which  they  had  no  con- 
trol, see  Holden  v.  The  Liverpool  Gas 
Company,  3  C.  B.  1].     But  it  is  settled 
by  Chadwickv.  Trower,  in  Cam.  Scacc. 
6  Bingh.  N.  C.  1,  that  even  supposing  that 
an  action  could  be  brought  tor  the  mere 
omission  to  take  care  while  pulling  down 
one's  own  property  that  a  neighbour's 
property  should  not  be  injured,  still  the 
duty  to  take  such  care  does  not  extend 
to   cases   where   the   defendant   is   not 
shown  to  have  had  notice  of  the  exist- 
ence or  nature  of  the  property  injured, 
as  where  it  was  a  vault.    In  consequence 
of  this  decision  it  will  probably  become 
usual  in  actions  of  this  sort  to  traverse 
notice  of  the  nature  or  existence  of  the 
property.     [Very  similar  to  the  case  of 
a  man  digging  on  the  extremity  of  his 
own  land  is  that  of  one  digging  on  his  own 
close,  so  as  to  divert  the  under-ground 
stream,  or  drain  the  well  of  a  neighbour. 
This,  in  the  absence   of  some   special 
right  to  such  stream  or  well,  is  damnum 
absque   injuria,  Acton  v.  Blundell,  12 
M.  &  VV.  324.] 

The  mode  of  determining  whether 
damage  have  or  have  not  been  occasion- 
ed by  what  the  law  esteems  an  injury, 
is  to  consider  whether  any  ris;hl  exist- 
ing in  the  party  damnijied  have  been 
infringed  upon  ;  for  if  so,  the  infringe- 
ment thereof  is  an  injury :  and  if  an 
injury  be  shown,  the  law  will  presume 


that  some  damage  resulted  from  it.  See 
Barker  v.  Green,  2  Bing.  317.     To  use 
Lord  Holt's  words  in  the  present  case  : 
— "  Every  injury  to  a  right  imports  a 
damage  in  the  nature  of  it,  though  there 
be  no  pecuniary  loss;"  for  instance,  a 
creditor  who  is  ascertained   to  be  such 
by    a  judgment   and    has   charged    his 
debtor  in   execution  has  a  right  to  the 
body  of  his  debtor  every  hour   till   the 
debt  is  paid.     Per  Buller,  J  ,  5  T.  R.  40. 
He  has  a  right  to  have  the  body  in  gaol, 
and   the   escape  of  a  debtor  for  ever  so 
short  a  time  is  necessarily  a  damage  to 
him,  and  an  action  for  an  escape  lies." 
Per   Parke,    B,    4    Mee.    &    \V.    1.53. 
[Clifton  v.  Hooper,  6  Q.  B.  463].     But 
where   a    defendant   is   in    custody   on 
mesne  process  and  after  the  return  of 
the  writ  by  which  he  was  captured,  th'; 
plaintilf's  right  is  "to  have  the  defend- 
ant in  custody  lohenever  he  chooses  to 
remove  or  declare  against  him  ;"  and, 
therefore,  although  an  escape  which  de- 
layed the  execution  of  a  habeas  corpus 
or  the  delivery  of  a  declaration  would 
be  actionable,  yet  an  escape  involving 
neither  of  those  consequences  is  not  .so. 
Williams  V.  Mostyn,  4  M.  &  VVels.  145. 
Planck  V.  Anderson,  5  T.  R.  37.     [So, 
again,  if  a  landlord  distrain  for  more  rent 
than  is  due,  an  action  lies  against  him, 
though   the   goods  he    take  be  of  less 
value  than  the  rent  actually   due,  and 
though  he  correct   the  mistake   before 
sale.     Taylor  v.  Henniker,  12  A.  &,  E. 
483.     And   an   action    is    maintainable 
against  one   who   makes   a    projection 
over  the  land  of  another,  before  any  rain 
falls  so  as   to  cause  damage.     Fay   v. 
Prentice,  1  C.  B.  823.] 

There  are,  indeed,  certain  cases  in 
which  an  act  may  be  in  law  an  injury, 
and  may  produce  damage  to  an  indivi- 
dual, and  yet  in  which  the  law  affords 
no  remedy,  or,  at  least,  no  immediate 
one.  These  are,  cases  in  which  the  act 
done  is  a  grievance  to  the  entire  com- 
munity, no  one  of  whom  is  injured  by  it 
more  than  another.  In  such  a  case  the 
mode  of  punishing  the  wrong-doer  is  by 
indictment,  and  by  indictment  only.  1 
Inst.  56,  a.  Still,  if  any  person  have 
sustained  a  particular  damage  tlieie- 
from,  beyond  that  of  his  fellow-citizens, 
he  may  maintain  an  action  in  respect  of 
that  particular  damnification.  Thus,  to 
use  the  familiar  instance  put  by  the  text 
writers,  if  A.  dig  a  trench  across  the 
highway,  this  is  the  subject  of  an  indict- 
ment; but  if  B.  fall  into  it,  then  the  par- 


312 


SMITHS     LEADING     CASES. 


licular  damage  thus  sustained  by  him 
r*n)-|  ^^''^'  support  an  action.  *Still, 
'■  -'  this  exception  is  subject  to  (juali- 
fication,  for  the  damage  must  not  be  oc- 
casioned by  want  of  ordinary  sicill  and 
care  on  the  part  of  the  plaintiff".  Butter- 
field  v.  Forester,  11  East,  60;  Flower 
r»Tio  1  v-  Adam,  *2  Taunt.  314; 
I  Id-aj  jjrijge  V.  Grand  Junction  Co., 
3  Mee  &  Welsh.  244,  (which  see  as  to 
the  form  of  plea  in  such  a  case).  Flaw- 
kins  V.  Cooper,  8  C.  &  P.  473;  [Coles 
V.  Bank  of  England.  10  A.  &  E.  437; 
Morrill  v.  Stanley,  1  M.  &  G.  5G9. 
However,  where  a  man  carelessly  lef"t 
his  cart  and  horse  unattended  in  the 
street,  and  a  young  child  climbed  into  it 
and  received  a  severe  fall  the  horse 
being  led  forward  by  a  boy,  the  owner 
was  held  responsible  in  case,  seemingly 
on  the  ground  that  having  thrown  temp- 
tation in  the  child's  way  he  could  not  be 
allowed  to  object  that  it  had  yielded  to 
it.  Lynch  v.  Nurden,  1  Q.  JB.  29:  and 
the  rule  is  not  that  any  negligence  on 
the  plaintift''s  part  will  preclude  him 
from  recovering;  but,  that  though  there 
has  been  negligence  on  the  plaintiff's 
part,  still  he  may  recover,  unless  he 
could  by  ordinary  care  have  avoided  the 
consequence  of  the  defendant's  negli- 
gence. Therefore,  a  man  who  had  im- 
properly left  an  ass  fettered  on  the  high- 
way, was  nevertheless  held  entitled  to 
recover  against  one  who  negligently 
drove  against  it.  Davies  v.  Mann,  10 
M.  &  W.  546.  See  Smith  v.  Dobson,  3 
M.  &  Gr  59;  and  Mayor  of  Colchester 
V.  Brooke,  7  Q.  B.  339,  where  oysters 
were  placed  in  the  channel  of  a  public 
navigable  river  so  as  to  create  a  public 
nuisance,  yet,  a  person  navigating  the 
river  was  holden  not  justified  in  running 
his  vessel  against  them,  when  he  had 
room  to  pass  without  so  doing.  In  Bridge 
v.  Grand  Junction  Railway,  supra,  in  an 
action  at  the  suit  of  a  passenger  by  the 
train  of  a  railway  company  against  ano- 
ther railway  company  with  a  train  of 
which  a  collision  had  taken  place, 
whereby  the  passenger  had  sustained 
injury,  the  defendants  pleaded  that  the 
injury  was  caused  in  part  by  the  negli- 
gence of  the  person  who  had  the  man- 
agement of  the  train  in  which  the  plain- 
tiff was  riding.  The  plea  was  holden 
bad  in  substance,  for  not  showing  that 
by  ordinary  care  on  the  part  of  the  per- 
son managing  the  train  in  which  the 
plaintiff  was,  the  collision  might  have 
been  avoided.     A   hasty  perusal  of  the 


report  of  that  case  might  lead  to  the 
supposition  that,  according  to  the  opinion 
of  the  court,  the  plea  might  have*  been 
good  in  substance,  though  not  in  form, 
by  an  averment  that  the  plaintiff's  driver 
cx)uld  by  ordinary  care  have  avoided  the 
accident;  but  that  result  does  not  by 
any  means  follow  from  what  the  learned 
judges  said,  much  less  from  what  they 
actually  decided.  It  may,  perhaps, 
safely  be  asserted,  that  the  plea  was  at 
all  events  bad  in  substance,  for  not  al- 
leging that  the  passenger  who  brought 
the  action  was  guilty  of  negligence.  If 
two  drunken  stage-coachmen  were  to 
drive  their  respective  carriages  against 
each  other  and  injure  the  passengers, 
each  would  have  to  pay  for  his  own  car- 
riage, no  doubt,  but  it  is  inconceivable 
that  *each  set  of  passengers  r^io.^/i 
should,  by  a  fiction,  be  identi-    '-  ^ 

fied  with  the  coachman  who  drove  them, 
so  as  to  be  restricted  for  remedy  to  ac- 
tions against  their  own  driver  or  his  em- 
ployer.] 

And  though  the  damage  and  v/rong 
be  excessive,  and  peculiarly  concern  an 
individual,  still,  if  it  amount  to  a  felony, 
the  private  remedy  is  suspended  until  pub- 
lic justice  shall  have  been  satisfied;  a  very 
wholesome  rule,  and  tending  to  prevent 
the  composition  of  felonies  under  the 
pretence  of  seeking  the  remedy  by  ac- 
tion. [This  rule,  however,  does  not 
apply  to  actions  against  'others  than  the 
person  guilty  of  the  felony.  White  v. 
Spettigue,  13  M.  &  W.  603.  And  the 
statute  9  &-  10  Vict.  c.  93,  for  compen- 
sating the  families  of  persons  killed  by 
accidents,  whilst  it  recognises  the  gene- 
ral rule,  expressly  enacts  that  it  shall 
not  apply  to  actions  brought  pursuant  to 
its  provisions.  See  Com.  Dig.  Action 
on  the  Case  (B.  5.)] 

Again,  there  are  some  cases  in  which 
a  damage  is  sustained  by  one  man  in 
consequence  of  the  act  of  another,  wiiich 
act  would  be  considered  tortious  by  the 
law  if  the  damage  incurred  could  be 
properly  deduced  from  it;  but  which, 
nevertheless,  is  dispunishable,  because 
the  damage  actually  incurred  is,  to  use 
the  legal  phrase,  too  remote  to  be  the 
subject  matter  of  an  action;  in  other 
words,  because  it  is  not  the  natural  con- 
sequence of  the  act  committed  by  the 
defendant ;  see  Com.  Dig.  Action  on 
Case  for  Defamation;  and  Kelly  v. 
Partington,  5  B.  »Sz.  Ad.  645;  and  it  has 
been  thought  that  damage  must  be  al- 
ways considered  too  remote  when  it  pro- 


ASHBY    V.     "WHITE    ET    ALIOS. 


313 


ceeds  from  the  illegal  act  of  a  third 
person,  for  that  the  law  will  not  esteem 
it  natural  that  an  illegal  act  should  be 
induced  by  any  consideration.  Thus,  if 
A.  falsely  assert  that  B.  has  spoken  in 
disparagement  of  C,  in  consequence  of 
which  C.  ceased  to  befriend  and  invite 
B.,  an  action  would  be  maintainable ; 
see  Moore  v.  Meagher,  1  Taunt,  39 ; 
but  if  C.  were  in  consequence  to  beat  B. 
no  action  could  be  maintained  by  him 
against  A.  on  account  of  the  damage 
sustained  from  the  beating.  So  in  Vicars 
V.  Wilcox,  8  East,  1,  where  the  defend- 
ant accused  the  plaintiff  of  unlawfully 
cutting  his  (the  defendant's)  cord,  in 
consequence  of  which  J.  O.  dismissed 
plaintiff  from  his  service  before  the  expi- 
ration of  his  year.  Lord  Ellenborough 
said,  "  that  the  special  damage  must  be 
the  legal  and  natural  consequence  of 
the  words  «poken ;  and  here  it  was  an 
illegal  consequence,  a  mere  wrong- 
ful act  of  the  master,  for  which  the 
defendant  was  no  more  answerable 
than  if,  in  consequence  of  the  words, 
other  persons  had  seized  the  plain- 
tiff and  thrown  him  into  a  horsepond 
for  his  supposed  transgression."  See 
Morris  v.  Langdale,  2  B.  &  P.  284; 
Knight  V.  Gibbs,  I  Ad.  &  Ell.  43; 
Ashley  v.  Harrison,  1  Esp.  48 ;  Ward 
V.  Weeks,  4  M.  8l  P.  796.  This  doc- 
trine, however,  has  been  questioned ; 
see  Green  v.  Button,  2  C.  M.  &  R. 
707;  [Kendillon  v.  Maltby,  1  Car.  & 
JNI.  402,  Lord  Denman,  U.  J.,]  and  1 
Stark,  on  Libel,  205,  and  the  notes  to 
Vicars  v.  Wilcox,  post,  vol.  ii. 

The  decision  in  this  particular  case 
of  Ashby  v.  White,  occasioned  one  of 
the  most  furious  controversies  between 
the  Houses  of  Lords  and  Commons  of 
which  there  is  any  example  in  English 
history.  A  full  account,  setting  forth 
at  large  the  parliamentary  documents 
respecting  it,  will  be  found  in  the  notes 
to  Mr.  Gale's  excellent  edition  of  Lord 
Raymond,  pp.  597  to  608.  It  arose  from 
an  idea  entertained  by  the  Commons 
that  the  attempt  to  bring  a  case  involv- 
ing the  right  to  the  elective  franchise 
before  a  court  of  law,  was  a  high  breach 
of  the  privileges  of  their  House ;  and 
they  proceeded  so  far  as  to  order  that 
Mr.  Mead  (Ashby's  attorney),  and  the 
plaintiffs  in  several  similar  actions, 
should  be  taken  into  custody.  Paty,  one 
of  these  plaintiffs,  sued  out  a  habeas 
corpus  to  the  keeper  of  Newgate,  who 
returned  the  Speaker's  warrant  of  com- 


mitment. On  argument  upon  this  re- 
turn, Powell,  Powys,  and  Gould,  JJ., 
held,  against  the  opinion  of  Lord  Chief 
Justice  Holt,  that  they  had  no  authority 
to  discharge  the  prisoner.  On  this  de- 
cision Paty  proposed  to  bring  a  writ  of 
error,  for  which  he  applied,  and  the 
judges  being  summoned  to  deliver  their 
opinion,  whether  a  writ  of  error  was  a 
writ  of  right  or  of  grace,  ten  of  them 
were  of  opinion  that  it  was  of  right,  ex- 
cept in  treason  and  felony.  The  parlia- 
ment was,  however,  prorogued  before 
the  writs  were  issued,  but  not  before 
the  House  of  Commons,  who  appear  te 
have  been  actuated  by  great  indignation, 
had  committed  Mr,  Cagsar,  the  cursitor, 
for  neglecting  to  inform  them  what 
writs  of  error  were  applied  for,  and  had 
also  directed  the  Serjeant-at-arms  to 
take  into  custody  Mr.  Montagu,  Mr. 
Letchmere,  Mr.  Denton,  and  Mr.  Page, 
who  had  been  counsel  for  the  prisoners 
on  the  return  of  the  habeas  corpus.  Mr, 
Montagu  and  Mr,  Denton  were  accord- 
ingly apprehended,  and  the  Serjeant-at- 
Arms  informed  the  House  "that  he  had 
also  like  to  have  taken  Mr.  Nicholas 
Letchmere,  but  that  he  had  got  out  of 
his  chambers  in  the  Temple,  two  pair 
of  stairs  high,  at  the  back  window,  by 
the  *help  of  his  sheets  and  a  pioo-i 
rope."  This  gentleman  was  ■-  '  ■' 
afterwards  Attorney-General.  Writs  of 
habeas  corpus  were  served  on  the  Ser- 
jeant-at-Arms on  behalf  of  Mr.  Montagu 
and  Mr.  Denton,  but  the  House  forbid 
him  to  make  any  return  thereto.  At  last, 
after  two  conferences  between  the 
Houses,  which  served  only  to  widen  the 
breach,  the  Queen  put  an  end  to  the 
dispute  by  proroguing  parliament. 

In  the  course  of  these  discussions  the 
Lords  appointed  a  committee  for  the  pur- 
pose of  preparing  an  argument  in  the 
shape  of  a  report  upon  the  proceedings 
in  the  case  of  Ashby  v.  White.  This 
argument  was  principally  drawn  up  by 
the  Lord  Chief  Justice,  and  contains  a 
masterly  disquisition  upon  all  the  sub- 
jects connected  with  the  case.  It  is 
printed  entire  in  the  note  by  Mr.  Gale 
above  referred  to,  and  consists  of  three 
parts  ;  first,  it  is  argued  that  the  plain- 
tiff had  a  right  to  vote;  secondly,  that 
if  so,  he  must,  as  a  necessary  conse- 
quence, as  an  inseparable  incident  to 
his  right,  have  a  remedy  to  assert  and 
maintain  it;  thirdly,  that  his  proper 
remedy  was  that  which  he  had  pursued, 
viz.,  by  action. 


314  smith's   leading   cases. 

[For  some   particulars  of  a    recent  Sheriff  of  Middlesex,  11  Ad.  «&  El.  273. 

memorable  conflict  between  tlie  House  The  statute  of  3  &  4  Vict.  c.  9  ;  Stock- 

of  Commons  and  the  Court  of  Queen's  dale  v.   Hansard,   11   Ad.   &  El.   297; 

Bencli,  which  cannot  be  stated  within  Howard   v.  Cosset,  1  Car.  &  K.  3S0; 

the  limits  of  a  note,  see  StockJale  v.  Howard  v.  Gossett,  10  Q.  B.  359  ;  Gos- 

Hansard,  7  C.  &  P.  731 ;  9  Ad.  &  El.  set  v.  Howard,  10  Q.  B.  411 ;  and  May's 

1 ;  11  Ad.  &.  EI.  253.     The  case  of  the  Law  of  Parliament,  125. 


Case  is  maintainable  whenever  the  plaintiff's  right  Las  been  injured, 
(more  accurately,  where  the  exercise  or  enjoyment  of  his  right  has  been, 
hindered,)  by  the  act  of  another,  and  that  act  was  not  necessary  to  the 
defendant's  full  enjoyment  of  his  own  rights,  or  the  legal  pursuit  of  them. 

The  principle,  that  where  the  injury  is  general,  or  common  to  many,  no 
action  lies,  seems,  when  properly  understood,  not  to  form  an  exception ;  as, 
in  case  of  a  nuisance  in  a  highway  :  the  individual  here  has  not  an  interest 
or  vested  right ;  the  easement  is  legally  in  the  king,  or  the  publit  generally, 
and  these  are  the  parties  to  sue,  which  is  by  indictment ;  but  if  any  indi- 
vidual's right  of  person  or  property  are  injured,  directly  or  consequentially, 
by  reason  of  the  nuisance,  an  action  lies  for  him.  See  Proprietors  of  Quincy 
Canal  v.  Newcomb,  7  Metcalf,  277,  283.  Thus  it  was  decided  in  Hughes 
V.  Heiser,  1  Binney,  463,  that  where  one  dams  a  river  that  is  a  public  high- 
way, and  the  plaintiff  coming  down  with  rafts,  is  prevented  by  the  dam  from 
descending  the  river,  the  interruption  is  actionable,  for  it  is  a  consequential 
injury  to  his  interests  or  rights  of  property.  See  Pittsburgh  v.  Scott,  1 
Barr,  309,  319,  and  Hart  v.  Evans,  8  id.  14,  21.  It  would  seem  that  the 
legal  notion  of  an  injury,  general,  or  common  to  many,  such  as  is  not  action- 
able, is  that  the  thing  injured  or  interrupted  is  a  privilege  open  generally, 
or  to  many,  and  not  a  particular  vested  right.  In  Owen  v.  Henman,  1 
Watts  &  Sergeant,  548,  an  action  was  brought  for  disturbing  the  plaintiff  in 
the  enjoyment  and  exercise  of  public  worship,  by  making  loud  noises,  read- 
ing, talking,  &c.,  and  it  was  decided  that  the  action  was  not  maintainable, 
for  here  was  no  right  of  the  plaintiff's  of  person  or  property  injured,  and  the 
injury  was  of  a  spiritual  and  not  temporal  nature,  and  besides,  was  general 
or  common  to  everybody.  See  also  First  Baptist  Church,  &c.  v.  The  U.  & 
S.  R.  R.  Co.  6  Barbour's  S.  Ct.  313 ;  and  5  id.  80. 

The  proprietors  of  lands  adjoining  streams,  have  a  right  to  use  reasonably 
the  water,  subject  to  a  similar  right  in  other  riparian  owners  ;  and  therefore, 
if  one  by  erecting  a  mill,  and  using  reasonably  the  water,  leave  less  for 
one  below  him,  though  the  latter  be  a  prior  occupant,  this  is  not  actionable, 
for  no  right  of  the  plaintiff  is  invaded,  and  the  act  is  necessary  to  the  defen- 
dant's enjoyment  of  his  own  rights ;  Palmer  and  others  v.  Mulligan  and 
others,  3  Caines,  307;  Piatt  v.  Johnson  &  Root,  15  Johnson,  213  ;  Weston 
v.  Alden,  8  Massachusetts,  13G  ;  Beissell  v.  Sholl,  4  Dallas,  211.  See  Cary 
V.  Daniels,  8  Metcalf,  407,  and  Pitts  &  Others  v.  Lancaster  Mills,  13  id. 
156,  158.  The  reasonableness  of  the  detention  of  the  water  by  the  upper 
owner,  depends  on  the  circumstances,  and  is  to  be  judged  of  by  the  jury; 
Hetrick  v.  Deachler,  6  Barr,  32  ;  and  if  the  diminution  be  material,  it  is 
held  in  Pennsylvania  that  the  upper  proprietor  is  liable  to  the  one  below ; 


ASHBY     V.     WHITE     ET     ALIOS,  315 

Miller  v.  Miller,  9  id.  74.  So,  in  those  rivers  ■where  the  right  of  fishing  is 
public,  the  erection  of  a  dam,  which  prevents  the  fish  from  coming  up,  is 
not  actionable  by  a  private  proprietor  of  the  adjoining  soil,  for  ''  he  had  no 
property  either  in  the  fish  or  the  river."  See  Shrunk  v.  The  President,  &c. 
of  the  Schuylkill  Navigation  Company,  14  Sergeant  and  Kawle,  71,  84. 
But  if  one,  by  erecting  a  dam,  overflows  his  neighbour's  laud,  he  injures  a 
particular  vested  right  of  that  person,  and  does  what  is  not  necessary  to  the 
enjoyment  of  his  own  limited  and  specific  right;  and  however  small  the 
damage,  it  is  actionable  ;  x\lexander  and  another  v.  Kerr,  2  Rawle,  83  ; 
and  see  Sackrider  v.  Beers,  10  Johnson,  24,  and  Merritt  v.  Parker,  Coxe, 
460  :  nay,  as  the  injury  is  to  a  right,  which  is  property,  and  there  is,  neces- 
sarily, legal  damage,  the  plaintifi"  may  recover  judgment,  though  no  special 
damage  at  all  be  shown ;  Pastorius  v.  Fisher,  1  Rawle,  27  ;  Alexander  v. 
Kerr,  2  Rawle,  83 ;  Ripka  v.  Sergeant,  7  Watts  &  Sergeant,  11 ;  Wood- 
man et  al.  v.  Tufts  et  al.,  9  New  Hampshire,  88  ;  Plumleigh  v.  Dawson,  1 
Oilman,  544,  551.  So,  an  action  on  the  case  lies  for  one  who  has  a  right 
of  way  against  an  intruder,  without  evidence  of  actual  damage ;  Williams  v. 
Esling,  4  Barr,  486.  The  maxim  de  minimis  non  curat  lex,  is  never  applied 
to  the  positive  and  wrongful  invasion  of  another's  property ;  The  Seneca 
Road  Company  v.  The  Auburn,  &c.  Rail  Road  Company,  8  Hill,  171,  175. 

To  corrupt  and  poison  a  stream  by  a  tannery,  is  actionable  by  those  whose 
right  to  the  use  of  the  stream  is  injured;  Howell  and  others  v.  M'Coy,  3 
Rawle,  256 ;  and  it  is  said  in  this  case,  that  the  plaintiff's  right  of  action  is 
gone,  if  there  have  been  an  appropriation  for  twenty  years,  or  a  contract ; 
and  it  is  held  in  M'Kellip  v.  M'llhenny,  4  Watts,  317,  that  if  there  has 
been  a  valid  contract,  or  a  parol  license  by  the  same,  or  a  former  owner, 
which  has  been  acted  on,  so  that  the  revocation  of  it  would  be  a  fraud,  it 
confers  a  right. 

With  regard  to  all  these  rights  in  streams,  though  prior  occupancy  gives 
no  right  at  all,  yet  it  seems  to  be  settled  that  uninterrupted,  exclusive  occu- 
pancy, under  claim  of  right,  for  twenty  or  twenty-one  years,  amounts  to  a 
binding  presumption  of  a  right ;  Ingraham  v.  Hutchinson,  2  Connecticut, 
584 ;  Bullen  v.  Runnels,  2  New  Hampshire,  255 ;  Tyler  and  others  v. 
Wilkinson  and  others,  4  Mason,  397;  Cowell  v.  Thayer,  5  Metcalf,  253, 
250;  Wood  v.  Kelley,  30  Maine,  47,  57;  Strickler  and  another  v.  Todd, 
10  Sergeant  &  Rawle,  63  ;  Hoy  v.  Sterrett,  2  Watts,  327,  where  the  cases 
are  collected  ;  but  see  Cooper  and  another  v.  Smith,  9  Sergeant  &  Rawle, 
26.  In  Parker  &  Edgarton  v.  Foote,  19  Wendell,  309,  the  nature  of  the 
presumption  in  these  cases  of  incorporeal  interests,  is  very  ably  explained 
by  Bronson,  J. ;  and  as  to  the  nature  of  the  occupancy,  he  says,  "  To 
authorise  the  presumption,  the  enjoyment  of  the  easement  must  not  only  be 
uninterrupted  for  the  period  of  twenty  years,  but  it  must  be  adverse,  not  by 
leave  or  favour,  but  under  a  claim  or  assertion  of  right ;  and  it  must  be 
with  the  knowledge  and  acquiescence  of  the  owner."  See  also,  Esliug  v. 
Williams,  10  Barr,  126,  128. 

That  there  may  be  a  right  to  have  lights  opening  on  another's  ground,  is 
decided  in  Story  v.  Odin,  12  Massachusetts,  157.  That  this  exclusive  right, 
invading  the  property  of  another,  may  be  acquiiced  by  uninterrupted  user 
for  a  sufiiciently  long  period,  was  said  by  Duncan,  J.,  in  Strickler  and 
another  v.   Todd;  but  strong  doubts  were  opened  upon  this   subject  by 


31G  smith's   leading    cases. 

Gould,  J.,  in  Ingraham  v.  Hutchinson  ;  and  IIogers,  J.,  in  Hoy  v.  Stcr- 
rett :  and  in  Parker  &  Edgarton,  v.  Footc,  19  Wendell,  309,  it  was  decided 
by  a  majority  of  the  Supreme  Court  of  New  York,  that  the  English  doc- 
trine of  a  right  to  lights,  overlooking  another's  ground,  acquired  by  long 
user,  upon  a  presumption  of  a  grant  or  otherwise,  is  inapplicable  to  this 
country,  and  does  not  exist  in  our  law.  See  Atkins  v.  Chilson  and  others, 
7  Metcalf,  398. 

H.  B.  W. 


BIRKMYR  V.   DARNELL. 

MICH.— 3  ANNIE,  B.  R. 

[reported  salkeld,  27. (n)] 

A  promise  to  answer  for  the  debt,  default,  or  miscarriage  of  another,  for  which 
that  other  remains  liable,  must  be  in  writing  to  satisfy  the  Statute  of  Frauds. 
Contra,  where  the  other  does  not  remain  liable. 

Declaration.  That  in  consideration  the  plaintiff  would  deliver  his  geld- 
ing to  A.,  the  defendant  promised  that  A.  should  re-deliver  him  safe,  and  evi- 
dence was,  that  the  defendant  undertook,  that  A.  should  redeliver  him  safe  ; 
and  this  was  held  a  collateral  undertaking  for  another  ;  for,  where  the  under- 
taker comes  in  aid  only  to  procure  a  credit  to  the  party,  in  that  case  there 
is  a  remedy  against  both,  and  both  are  answerable  according  to  their  distinct 
engagements  ;  but,  where  the  whole  credit  is  given  to  the  undertaker,  so 
that  the  other  party  is  but  as  his  servant,  and  there  is  no  remedy  cKjainst 
Tiini,  this  is  not  a  collateral  undertaking.  But  it  is  otherwise  in  the  princi- 
pal case,  for  the  plaintiff  may  maintain  detinue  upon  the  bailment  against 
the  original  hirer,  as  well  as  an  assumpsit  upon  the  promise  against  this 
defendant. 

Etpcr  cur.  If  two  come  to  a  shop,  (f)  and  one  buys,  and  the  other,  to 
gain  him  credit,  promises  the  seller,  If  he  does  not  pay  you,  1  will,  this  is  a 
collateral  undertaking,  and  void  without  writing  by  the  Statute  of  Frauds. 
But  if  he  says,  Let  him  have  the  goods,  I  tcill  he  your  paymaster,  or  I  will 

(a)  Mod.  Cases,  248.     S.  C.  by  name  of  Bour  Kamire  v.  Darnell. 

(t)  In  such  a  case  tlie  question  to  whicli  of  the  two  was  credit  g^ivfin,  is  generally  left 
to  the  determination  of  the  jury,  wiio,  in  deciding  it,  must  take  into  their  consideration 
all  the  circumstances  of  the  case.  Keate  v.  Temple,  1  B.  &  P.  158;  Darnell  v.  Trott,  1 
C.  &  P.  82  ;  Storr  v.  Scott,  G  C.  &  P.  241.  If,  on  production  of  the  plaintiff's  books,  it 
appear  the  defendant  was  not  originally  debited  there,  that  is  strong  evidence  that  he  is 
but  a  surety,  but  it  is  not  conclusive.  Keate  v.  Temple,  Croft  v.  Smalwood,  1  Esp.  121. 
[As  to  the  employment  of  an  attorney  by  a  person  really  interested  in  the  event  of  a  suit, 
though  not  a  party  to  the  record,  see  Howes  v.  Martin,  1  Esp.  162,  Noel  v.  Hart,  3  C.  & 
P.  230.] 


B  I R  K  M  Y  R     V.     DARNELL. 


317 


see  you  paid,{^)  tliis   is  an  undertaking  as    for  himself,  and  he  shall  be 
intended  to  be  the  very  buyer,  and  the  other  to  act  but  as  his  servant. 


The  fourth  section  of  the  Statute  of 
Frauds  enacts,  that  "No  action  shall  be 
brought  whereby  to  charge  any  executor 
or  administrator  upon  any  special  pro- 
r*iqK-|  mise  *to  answer  damages  out  of 
■•  J  his  own  estate  ;  or  to  charge  the 
defendant  upon  any  special  promise  to 
answer  for  the  debt,  default,  or  miscar- 
riage of  another  person  ;  or  to  charge 
any  person  upon  any  agreement  made 
in  consideration  of  marriage;  or  upon 
any  contract,  or  sale  of  lands,  tenements, 
or  hereditaments,  or  any  inerest  in  or 
concerning  them ;  or  upon  any  agree- 
ment that  is  not  t  be  perfor  med  within 
the  space  of  one  year  from  the  making 
thereof;  unless  the  agreement  upon 
which  such  action  shall  be  brought,  or 
some  memorandum  or  note  thereof^  shall 
be  in  writing,  and  signed  by  the  party 
to  be  charged  therewith,  or  some  other 
person  ihereuno  by  him  lawfully  autho- 
rised." 

The  present  case  turned'  as  we  have 
just  seen,  on  the  meaning  of  the  words 
"  upon  any  special  promise  to  answer 
for  the  debt,  default,  or  miscarriage  of 
another  person;  and  the  distinction  here 
taken  has  ever  since  been  held  the  true 
one,  and  is  clearly  explained,  and  all  the 
SLi'j.--equent  cases  discussed,  in  the  notes 
tfi  Forth  V.  Stanton.  1  Wms.  Saunders, 
211,  to  which  the  reader  is  referred; 
and  wheje  the  following  rule,  which  is 
in  substance  the  very  same  with  that  in 
Birkmyr  v.  Darnell,  is  laid  down  for  the 
purpose  of  distinguishing  between  the 
cases  which  do  and  those  which  do  not 
fall  within  the  statute.  "The  question 
is.  What  is  the  promise  1 — is  it  a  promise 
to  answer  for  the  debt,  default,  or  mis- 
carriage of  another,/or  tohich  that  other 
remains  liable? — not  what  the  conside- 
ration for  that  promise  is  ;  for  it  is  plain 
that  the  nature  of  the  consideration  can- 
not effect  the  terms  of  the  promise  itself, 
unless,  as  in  the  case  of  Goodman  v. 
Chase,  1  B.  &  A.  297,  it  be  an  extin- 
guishment of  the  liability  of  the  origi- 
nal party."     In  that  case  the  defendant 


in  consideration  that  the  plaintiff  would 
discharge  A.  B.,  Whom  he  had  taken  un- 
der a  capias  ad  satisfaciendum,  pro- 
mised to  pay  A.  B.'s  debt.  It  was  held 
unnecessary  that  the  promise  should  be 
in  writing,  for  the  defendant's  liability 
on  his  promise  could  not  begin  till  the 
plaintiff  had  discharged  A.  B.  out  of 
custody,  since  that  discharge  was  made 
a  condition  precedent;  but  the  moment 
A.  B.  was  discharged,  his  liability  was 
at  an  end,  so  that  the  defendant  was 
never  liable  for  a  debt  of  A.  B. :  the 
debt  had  ceased  to  be  due  from  A.  B. 
before  the  defendant  became  liable  to 
pay  it,  [The  same  point  occurred  in 
Butcher  v.  Stewart,  11  M.  Sz,  W.  857]. 
So  also  in  Bird  v.  Gammon,  3  Bing.  N. 
C.  889,  thedefendant,inconsideration  that 
plaintiff  would  with  Lloyd's  other  credi- 
tors gave  up  their  claims  againstLloyd, 
and  that  Lloyd's  farm  ^should  be  r^,  qc  -i 
assigned  to  the  defendant,  under-  '•  ^^ 
took  to  pay  the  plaintiff,  this  was  held 
not  to  be  a  promise  to  pay  the  debt  of  a 
third  party,  for  Lloyd  ceased  to  be  liable. 
(See  Good  v.  Cheeseman,  2  B.  &  Ad, 
328,  and  the  notes  to  Cumber  v.  Wane, 
post.)  But  where  A.  as  attorney  for  B. 
sued  C.  and  it  was  agreed  that  tiie  suit 
should  be  put  an  end  to,  and  that  C, 
should  pay  A.  the  costs  due  by  B.,  this 
was  held  within  the  statute,  Toralinson 
Crewell,  1  A.  &  E.  453,  where  the  rule 
V.  Gell,  6  A.  &  E.  564,  [Accord.  Green  v. 
above  cited  was  approved  of  by  the  Court, 
and  Thomas  v.  Cook,  8  B.  &  C.  729, 
where  it  had  been  generally  stated  that 
promises  to  indemnify  were  not  within 
the  statute,  reiiected  upon.  In  East- 
wood v.  Kenyon,  11  A.  &  E,  446,  the 
Court  of  Queen's  Bench  held  that  the 
promise  would  not  require  a  writing  if 
made  to  the  debtor  himself,  and  they  ex- 
pressed an  opinion  that  the  statute  ap- 
plies only  to  promises  made  to  the  per- 
son to  whom  another  is  answerable. 
This  view,  which  would  limit  the  gene- 
rality of  the  rule  laid  down  by  Serjeant 
Williams,  and  seems  not  altogether  re- 


(t)  [This  form  of  words  can  make  no  difference  if  llie  undertaking  be  really  collateral, 
for  in  Matson  v.  Wliarim,  2  T.  R.  80,  where  the  words  were  "  If  you  do  not  know  him 
you  know  me,  and  /  will  see  you  paid,"  the  stutute  was  considered  to  apply.] 


318 


smith's  leading  cases. 


concileable  witli  the  doctrine  in  Green 
V.  Cresswcll,  supra,  has  been  reco;:Tnised 
and  acted  upon  by  tlie  Court  of  Exche- 
quer, in  Ilargreaves  v.  Parsons,  13  M. 
&.  W.  501,  where  it  is  laid  down,  that 
"the  statute  applies  only  to  promises 
made  to  the  persons  to  whom  another  is 
already,  or  is  to  become,  answerable. 
It  must  be  a  promise  to  be  answerable 
for  a  debt  of,  or  a  default  in  some  duty 
by,  that  other  person  towards  the  pro- 
misee.'"] 

When  it  is  settled  that  the  promise  is 
one  to  answer  for  the  debt,  default,  or 
miscarriage  of  another,  within  the  mean- 
ing of  the  statute  ;  or,  to  use  Lord  Holt's 
expression  in  the  text,  that  it  is  a  colla- 
teral, not  an  origiiial  promise  ;  the  next 
question  that  occurs  is;  what  must,  in 
order  to  satisfy  the  act,  appear  in  the 
writing  thereby  required  ]  Now,  the 
act,  in  terms,  requires  that  the  agree- 
ment, or  some  memorandum  or  note 
thereof,  shall  be  in  writing ;  and  it  is 
held  that  the  word  agreement  compre- 
hends both  a  consideration  and  a  pro- 
mise;  and  that  both  these  must,  there- 
fore, appear  in  the  writing.  This  was 
determined  in  the  celebrated  case  of 
Wain  V.  Warlters,  5  East,  10,  in  which 
an  action  of  assu7npsit  was  brought  on 
the  following  guaranty  : — 
"  Messrs.  Wain  S(  Co. 

•'  I  will  engage  to  pay  you  by  half- 
past  four  this  day,  fifty-six  pounds  and 
expenses  on  bill,  that  amount  on  Hall. 
^^  John  Warlters. 

"2,  Cornhill,  April  30,  1803." 

The  Court  of  King's  Bench  held  that 
this  was  not  sufficient,  inasmuch  as  it 
did  not  state  the  consideration  for  Warl- 
ter's  promise.  "  The  words  of  the  sta- 
tute," said  Mr.  J.  Grose,  "are,  that  no 
action  shall  be  brought,  whereby  to 
charge  the  defendant  on  any  special 
promise  to  answer  for  the  debt,  &-c.,  of 
another  person,  &c.,  unless  the  agree- 
ment upon  which  such  action  shall  be 
brought,  or  some  memorandum  or  note 
thereof,  shall  be  in  writing,  &c.  What 
is  required  to  be  in  writing,  therefore, 
is  the  agreement,  not  the  promise  as 
mentioned  in  the  first  clause,  or  some 
note  or  memorandum  of  tlie  agreement. 
Now  the  agreement  is,  that  which  is  to 
show  what  each  parly  is  to  do  or  per- 
form, and  by  which  both  parties  are  to 
be  bound,  and  this  is  required  to  be  in 
writing.  If  it  were  only  necessary  to 
show  what  one  of  them  w^as  to  do,  it 
would  be  sufficient  to  state  the  promise 


made  by  the  defendant  who  was  to  be 
charged  with  it.  But  if  we  were  to 
adopt  this  construction,  it  would  be  the 
means  of  letting  in  those  very  frauds 
and  perjuries  which  it  was  the  object  of 
the  statute  to  ^prevent,  for,  with-  r^ioc-i 
out  the  parol  evidence,  the  de-  '-  J 
fendant  cannot  be  charged  upon  the 
written  contract,  for  want  of  a  conside- 
ration in  law  to  support  it.  The  effi^ct 
of  the  parol  evidence  then  is  to  make 
him  liable  :  and  thus  he  would  be  charg- 
ed with  the  debt  of  another  by  parol 
testimony,  when  the  statute  was  passed 
with  the  very  intent  of  avoiding  such  a 
charge,  by  requiring  that  the  agree- 
ment, by  which  must  be  understood  the 
whole  agreement,  should  be  in  writing." 

This  case  having  been  frequently 
doubted,  was  at  last  confirmed  by  Saun- 
ders v.  Wakefield,  4  B.  &  A.  596.  The 
guaranty  on  which  that  action  was 
brought  was  as  follows  : — 

"  Mr.  Wakefield  loill  engage  to  pay 
the  bill  drawn  by  Pitman  in  favour  of 
Stephen  Saunders^ 

This  instrument  being  set  out  in  the 
replication  to  a  plea  of  the  statute,  was 
held  upon  demurrer  to  be  insufficient. 
The  doctrine  of  Wain  v.  Warlters  was 
on  that  occasion  affirmed,  and  has  never 
since  been  doubted.  See  Jenkins  v. 
Reynolds,  3  B.  &  B.  14;  Morley  v. 
Boothby,  3  Bing.  107;  Whitcombe  v. 
Lees,  5  Bing.  34;  Cole  v.  Dyer,  1  C.  & 
J.  461,  1  Tyrwh.  307;  Wood  v.  Ben- 
son, 2  Tyrwh.  98 ;  Bushell  v.  Bea- 
van,  1  Bing.  N.  C.  103  ;  Hawes  v.  Arm- 
strong, Ibid.  761 ;  Ellis  v.  Levi,  Ibid. 
767;  James  v.  Williams,  5  B.  &,  Ad. 
1109  ;  Clancy  v.  Piggott,  2  Ad.  &  Ell. 
473;  [Raikes  v.  Todd,  8  A.  &  E.  448; 
Semple  v.  Pink,  1  Exch.  74 ;  Price  v. 
Richardson,  15  M.  &  W.  539,  where 
the  guarantee  holden  invalid  was — 

"  1843,  June  23.— Mr.  Price,  I  loill 
see  you  paid  for  £o  or  j£10  worth  of 
leather,  on  the  6th  of  December,  for 
Thomas  Lewis,  shoemaker. 

Robert  Richardson."] 

But  it  is  sufficient  if  the  consideration 
can  be  gathered  by  a  fair  intendment 
from  the  whole  tenor  of  the  writing,  not 
that  a  mere  conjecture,  however  plau- 
sible, would  be  sufficient  to  satisfy  the 
statute,  but  there  must  be  a  well- 
grounded  inference  to  be  necessarily 
collected  from  the  terms  of  the  memo- 
randum. *See  the  judgments  ,:^,op  -i 
ofTindal,  C.  J.,  in  Hawes  v.  L  ■I'^oaj 
Armstrong,  and  of  Patteson,J.,  in  James 


B  I  R  K  M  Y  R    V.    DARNELL. 


319 


V.  Williams,  5  B.  and  Ad.  1109;  Ben- 
tham  V.  Cooper,  5  M.  &  W,  6-^8 ;  Jarvis 
V.  Wilkins,  7  M.  &  W.  410.]  And  it 
is  observable,  that  when  an  agreement 
is  in  its  nature  prospective,  such  an  in- 
ference is  much  more  easily  arrived  at 
than  when  it  is  in  its  nature  retrospec- 
tive. For  instance,  in  Stapp  v.  Lill,  1 
Camp.  242,  9  East,  .348,  the  following 
guaranty  was  held,  first  by  Lord  Ellen- 
borough  at  nisi  prills,  and  afterwards  by 
the  Court  of  King's  Bench,  in  banc,  to 
be  sufficient: 

'^  I  guarantee   the  payment  of  any 
goods   which   Mr.    John    Stapp   shall 
deliver  to  Mr.  Nicholls,  of  Bricklane. 
"  John  LilV 

It  was  thought  sufficiently  to  appear 
from  the  instrument  that  the  promise  of 
Lill,  the  defendant,  was  intended  to  ope- 
rate as  an  inducement  to  Stapp,  the 
plaintiff,  to  deliver  goods  to  Nicholls; 
and  if  so,  the  delivery  of  them  to 
Nicholls,  at  the  defendant's  request, 
would,  of  course,  be  a  good  considera- 
tion for  the  defendant's  undertaking  to 
guarantee.  See  Newbury  v.  Armstrong, 
6  Bing.  201 ;  Russell  v.  Moseley,  3  B. 
&  B.  211  ;  Morris  v.  Stacey,  Holt,  N. 
P.  C.  153 ;  Ryde  v.  Curtis,  8  D.  &  R. 
62;  Ex  parte  Gardom,  15  Ves.  287; 
Combe  v.  VVoolf,  8  Bing.  157.  [Kenn- 
away  v.  Treleavan,  5  M.  «&  W.  Exp. 
Little  John,  3  M.  D.  &  D.  182 ;  John- 
stone V.  Nicholls,  1  C.  B.  251 ;  Chap- 
man V.  Sutton,  2  C.  B.  634;  Emmett  v. 
Kearns,  5  N.  C.  599;  Dutchman  v. 
Tooth,  5  N.  C.  577,  where  the  guaranty 
was  "  in  consideration  of  2s.  Qd.  paid 
me,"  without  saying  by  whom,  and  held 
good.] 

In  Shortrede  v.  Cheek,  1  Ad.  &  E. 
59,  where  a  guaranty  was  expressed  to 
be  in  consideration  that  the  plaintiff 
"  would  withdraw  the  promissory  note," 
the  Court  of  King's  Bench  held  that  it 
was  sufficiently  certain,  and  that  parol 
evidence  was  admissible  to  show  what 
promissory  note  was  meant.  [And,  as 
in  the  case  of  a  will  or  other  written 
instrument,  parol  evidence  is  admissible, 
not  to  alter  or  vary  the  meaning  or  con- 
struction of  a  guaranty,  but  to  mterpret 
and  explain  it;  not  to  import  a  consi- 
deration which  does  not  appear  upon  the 
guaranty,  either  expressly  or  by  neces- 
sary inference;  nor  to  make  that  appear 
to  be  a  consideration  which  upon  the 
face  of  the  guaranty  appears  not  to  be 
so;  nor,  in  a  case  of  patent  ambiguity, 
when  the  language  of  the    instrument 


renders  it  uncertain  as  to  which  of  two 
or  more  matters,  severally  mentioned 
therein,  was  the  consideration  upon 
which  it  was  given,  to  shew  by  parol 
which  was  in  fact  the  consideration; 
but,  either  (as  in  Shortrede  v.  Cheek,) 
to  fix  the  particular  subject-matter  to 
which  the  guaranty  relates,  or  even  to 
shew,  by  reference  to  lime  or  other  cir- 
cumstances, that  matter  indicated  by 
the  guaranty,  but  which,  as  described 
therein,  maybe  a  good,  *and  r*i.i(-i-| 
does  not  appear  to   be  a  bad,    ^  -1 

is,  by  reason  of  such  circumstances,  in 
fact  a  good  consideration.  Thus,  in 
Haigh  V.  Brooks,  10  A.  &  E.  .309,  parol 
evidence  was  hohlen  admissible  to  show 
that  in  a  guaranty  worded — 

"  In  consideration  of  your  being  in 
advance  to  L.  in  the  sum  of  £10,000 
for  the  purchase  of  cotton,  I  do  hereby 
give  you  my  guaranty  for  that  amount, 
on  their  behalf — future  advances  were 
referred  to,  and  so  that  it  was  valid. 
And,  in  Goldshede  v.  Swan,  1  Exch. 
154,  a  guaranty  as  follows: — 

"  In  consideration  of  your  having 
this  day  advanced  to  our  client,  Mr.  S. 
D.,  £750,  secured,  Sfc,  loe  hereby 
jointly  and  severally  undertake,  4'C." — 
was  held  to  be  '■^sufficiently  ambiguous'^ 
"  that  is,  not  ambiguous  as  to  what  was 
the  matter  intended  to  be  the  considera- 
tion, for  that  was  sufficiently  identified, 
but  as  to  whether  that  matter,  when  its 
circumstances  were  ascertained,  would 
furnish  a  sufficient  consideration  in  point 
of  laio) — to  admit  of  evidence  to  show 
that  the  advance  was  not  a  past  one, 
but  made  simultaneously  with  the  exe- 
cution of  the  guaranty;  and  a  declara- 
tion stating  the  promise  to  have  been 
made  in  consideration  that  the  plaintiff 
"  would"  lend,  &c.,  was  sustained.  In 
each  of  those  cases  the  subject-matter 
of  the  consideration  was  identified  by 
the  writing,  and  its  circumstances  only 
added  by  parol,  which  being  known, 
there  was  no  longer  any  doubt,  that  that 
which  by  the  writing  appeared  to  be  the 
consideration,  was  a  valid  consideration 
in  point  of  law.  But  in  Price  v.  Rich- 
ardson, supra,  it  was  doubtful,  upon  the 
face  of  the  guaranty,  whether  the  con- 
sideration was  the  supply  of  the  leather, 
or  forbearance  until  the  6th  of  Decem- 
ber. Parol  evidence,  if  admitted  to 
cure  the  ambiguity  in  that  case,  must 
not  merely  have  shown  that  a  considera- 
tion specified  was  sufficient,  but  further, 
what    the    consideration    was;    which 


320 


smith's   leading    cases. 


would  have  violated  tlie  statute  as  ex- 
plained in  Wain  v.  VVarlters. 

No  objection  can  be  taken  to  the  ade- 
quacy of  the  consideration,  provided  it 
sufficiently  appear,  according'  to  the 
rules  above  laid  down,  what  the  consi- 
deration is.  In  Raikes  v.  Todd,  8  Ad. 
&.  El.  846,  a  guaranty  thus: — 

"  Oct.  19th,  1832.— J  undertake  to 
secure  to  you  the  payment  of  any  sums 
you  have  advanced,  or  may  hereafter 
advance  to  D.,  on  his  account  vnth  you 
commencing  \st  Nov.  1831,  not  exceed- 
ing j£2000" — was  considered  invalid  on 
the  ground  that  it  was  doubtful  whether 
the  consideration  consisted  of  forbear- 
ance to  sue  for  the  past  advances,  or 
•  partly  that  and  partly  the  making  of 
further  advances,  and  the  Court  decid- 
ed that,  at  all  events,  it  did  not  sustain 
a  declaration  alleging  the  advances  to 
be  the  consideration.  There  can,  how- 
ever, be  no  doubt  that,  as  suggested  by 
Parke,  B.,  in  Kennaway  v,  Treleavan, 

r*136cl  '^  ^^-  ^  '^^'  '*^^'  ^^'^  ^future 
'-  '  ^  advances  would  form  a  suffi- 
cient consideration  for  a  gurranty  of 
their  own  amount,  and  also  of  the  past 
advances ;  and  accordingly,  in  Johnstone 
V.  Nicholls,  1  C.  B.  251,  and  Chapman 
V.  Sutton,  2  C.  B.  6:34,  guaranties  of 
past  and  future  debts  given  in  considera- 
tion of  a  continuance  of  dealings  with 
the  principal  debtor  were  sustained.] 

Provided  that  the  agreement  be  re- 
duced to  writing  according  to  the  above 
rules,  it  matters  not  out  of  how  many 
different  papers  it  is  to  be  collected,  so 
long  as  they  can  be  sufficiently  connect- 
ed in  sense.  Jackson  v.  Lowe,  1  Bing. 
9;  Phillimore  V.  Barry,  1  Camp.  513; 
Saunderson  v.  Jackson,  2  B.  &,  P.  398  ; 
Allen  V.  Bennett,  3  Taunt.  169;  Dobell 
V.  Hutchinson,  3  Ad.  &  Ell.  355.  See 
Johnson  v.  Dodgson,  2  Mee.  &  Welsh. 
053.  [De  Bert  v.  Thompson,  3  Beav. 
471 ;  Coldham  v.  Showier,  3  C.  B.  312 ; 
Saunders  v.  Cremer,  3  Dru.  &  War.  87; 
Green  v.  Cramer,  2  Con.  &  L.  54 ;  Ham- 
mersley  v.  Baron  de  Biel,  12  CI.  &l  F. 
45.]  But  this  connexion  in  sense  must 
appear  upon  the  documents  themselves, 
for  parol  evidence  is  not  admissible  for 
the  purpose  of  connecting  them. 

That  was  one  of  the  princi|)al  points 
decided  in  Boydell  v.  Drummond,  11 
East,  142,  which  arose  upon  this  section 
of  the  act,  although  the  instrument  there 
sued  upon  was  not  a  guaranty.  In  that 
case   the  plaintiff  proposed  to  publish  a 


magnificent  edition  of  Shakspeare,  illus- 
trated by  seventy-two  engravings,  which 
were  to  come  out  in  numbers,  at  three 
guineas  per  number,  two  of  which  were 
to  be  paid  in  advance;  each  number  was 
to  contain  four  engravings;  ^^  one  num- 
ber at  least  icas  to  be  published  annually, 
and  the   proprietors  were  confident  that 
they  should  be  able  to  produce  two  num- 
bers in  the  course  of  every  year."    These 
proposals  were  Sprinted  in  &  pro-  r>i:Ao-y-i 
spectus,  and  lay  in  the  plaintiff'sJi         -• 
shop.  The plaintiffalso  kepta book,  which 
had  for  its  title  "  Shakspeare  subscribers, 
their  signatures ;"  but  did  not  refer  to 
th e;)ros;;ec/ws.  The  defendant  determin- 
ing to  become  a  subscriber  to  the  work, 
signed  his  name  in  the  book  containing 
the  list  of  subscribers,  but  afterwards  re- 
fusing to  continue  to  take  it  in,  though 
he  had  received  and  paid  for  some  few 
numbers,  this  action  was  brought  against 
him  to  compel  him  to  complete  his  con- 
tract.    The  Court  decided,  1st,  That  the 
agreement  was  one  not  to  be  performed 
within  the  space  of  a  year  from  the  mak- 
ing thereof;  that  it  was  therefore  within 
the  4th  section  of  the  Statute  of  Frauds, 
and  it  was  necessary  that  there  should 
be  a  note  or  memorandum  of  it  in  writ- 
ing, signed  by  the  defendant.     See  the 
notes  to  Peter   v.  Conipton,    post,  143, 
2ndly,     They  held  that  though  the  pro- 
spectus contained  the  terms  of  the  agree- 
ment, and  would  be  sufficient  Tnemoran— 
dum  thereof  if  it  could  be  coupled  with 
the  book  in  which  the  defendant  signed 
his  name  ;  still,  as  it  contained  no  refer- 
ence to  the  book,  nor  the  book  to  it,  there 
was  no  connexion  in  sense  between  them 
which  would  enable  the  court  to  couple 
them   together  and  treat   them  as  one 
document.     And  3dly,    they   held    that  ' 
such  connexion  could  not  be  introduced 
by  parol  evidence,  but  must,  in  order  to 
satisfy  the  statute,  appear  upon  the  face 
of  the  documents  themselves.  They  also 
held  that  the  part  performance  which  had 
taken  place  made  no  difference.     It  does 
not  signify  to  whom  the  memorandum 
containing  the  agreement  is  addressed. 
It  may  be  contained  in  a  letter  to  a  third 
person.     Per  Lord  Hardwicke,  3  Atk. 
503,2  Cha.  Rep.   147,  1  Vernon,  110; 
Bateman  v.  Phillips,  15  East,  272 ;  Long- 
fellow v.    Williams,  Peake's  Add.  Ca. 
225.     The   reason  of  this  is,    that   the 
memorandum  is  necessary  only  to  evi- 
dence the  contract,  not  to  constitute  it. 
The  contract,  as  was  observed   by  Tin- 


BIRKMYR    V.    DARNELL. 


321 


dal,  C.  J.,  in  Laythoarp  v.  Bryant,  2 
Bing.  N.  C.  744,  is  made  before  any  sig- 
nature thereof  by  the  parties. 

With  respect  to  the  signature,  it  is 
only  necessary  that  the  memorandum 
should  be  signed  by  the  party  against 
whom  it  is  sought  to  enforce  the  contract. 
Laythoarp  v.  Bryant,  2  Bing.  N.  C.  744. 
[See  Aveline  v.  Whisson,  4  Man.  &  Gr. 
801 ;  Cooch  v.  Goodman,  2  Q.  B.  560.] 
It  was  objected  in  that  case,  [Laythoarp 
V.  Bryant],  which  arose  on  a  contract  to 
sell  lands,  that,  unless  the  agreement 
were  signed  by  both  parties,  there  would 
be  a  want  of  mutuality,  as  the  party  who 
signed  would  be  bound,  and  the  party 
who  had  not  signed  would  be  loose,  and 
so  that  there  would  be  no  consideration 
for  ills  agreement.  "But,"  said  the 
Lord  Chief  Justice,  "whose  fault  isthaf? 
The  defendant  might  have  required  the 
plaintiff's  signature,  but  the  object  of 
the  statute  was  to  secure  the  defendant's. 
The  preamble  runs,  'for  prevention  of 
many  fraudulent  practices,  which  are 
commonly  endeavoured  to  be  upheld  by 
perjury  and  subornation  of  perjury  ;'  and 
the  whole  object  of  the  legislature  is  an- 
swered, when  we  put  this  construction 
on  the  statute.  Here,  when  this  party 
who  has  signed  is  the  party  to  be  charg- 
ed, he  cannot  be  subject  to  any  fraud. 
And  there  has  been  a  little  confusion  in 
the  argument  between  the  consideration 
of  an  agreement  and  mutuality  of  claims. 
It  is  true  the  consideration  must  appear 
upon  the  face  of  the  agreement.  Wain 
V.  Warlters,  was  decided  on  the  express 
ground  that  an  agreement  under  the 
tourth  section  imports  more  than  a  bar- 
gain under  the  seventeenth;  but  I  find 
no  case,  nor  any  reason  for  saying  that 
the  signature  of  both  parties  is  that  which 
makes  the  agreement.  The  agreement 
is  in  truth  made  before  any  signature." 

The  words  attributed  in  the  text  of 
the  principal  case  to  the  court,  who  are 
made  to  say  that  a  collateral  undertak- 
ing is  void,  without  writing,  by  the  sta- 
tute of  frauds,  are  too  strong,  if  literally 
understood;  for  the  act  does  not  direct 
that  the  promise  shall  be  void,  but  that 
"no  action  shall  be  brought"  upon  it; 
and  Bosanquet,  J.,  remarks,  in  Laythoarp 
V.  Bryan,  that  the  seventeenth  section 
is  in  this  respect  stronger  than  the  fourth, 
for  the  seventeenth  avoids  contracts  not 
made  in  the  manner  there  prescribed. 
Accordingly,  though  no  action  can  be 
brought  upon  a  parol  guaranty,  the 
courts  have  been  known  to  enforce  one 

Vol.  I.— 21 


against  an  attorney,  by  virtue  of  their 
summary  jurisdiction  over  their  own 
officers,  see  *Evans  v.  Duncan,  1  rjfciqai 
Tyrwh.  283 ;  Senior  v.  Butt ;  •-  ^'^^^ 
and  Payne  v,  Johnson  there  recited.  [And 
this  jurisdiction  has  been  recently  as- 
serted by  Coleridge,  J.,  In  re  Hiiliard,  2 

D.  &  L.  919.  It  is  hardly  necessary  to 
add,  that  an  agreement  invalid  for  want 
of  writing  to  satisfy  the  statute,  has  no 
tinge  of  illegality,  and  may  be  given  in 
evidence  with  the  same  effect  as  any 
other  promise  binding  in  honour  and 
conscience,  though  not  in  law;  for  in- 
stance, in  Cresswell  v.  Wood,  10  A.  & 

E.  460,  where  A.  drew  a  bill  of  exchange 
on  B.,  who  accepted  it,  and  A.  discount- 
ed it,  and  applied  the  money  in  liquida- 
tion of  a  demand  on  C,  made  on  him 
as  surety  for  the  debt  of  D.,  against 
which  A.  had  promised  to  indemnify 
him,  the  agreement  to  indemnify,  al- 
though by  parol  (being  in  fact  the  same 
which  had  in  Green  v.  Cresswell  been 
held  to  require  a  writing)  was  allowed 
to  be  given  in  evidence  on  behalf  of  B., 
for  the  purpose  of  supporting  a  plea  that 
the  bill  was  for  A.'s  own  accommoda- 
tion. And,  in  Sweet  v.  Lee,  4  Scott, 
N.  R.  77,  a  memorandum  by  which  an 
annuity  was  payable  by  the  plaintiff"  to 
the  defendant  having  been  put  in  suit 
by  the  plaintiff,  and  appearing  to  be  in- 
valid for  want  of  stating  a  consideration, 
the  plaintiff  sought  to  recover,  as  upon 
a  failure  of.  consideration,  payments 
which  he  had  made  for  several  years  on 
account  of  the  annuity;  but  the  Court 
of  Common  Pleas  distinguished  the  case 
from  those  in  which  the  contract  is  one 
that  the  law  has  declared  to  be  void, 
Tindal,  C.  J.,  saying,  "The  contract  is 
not  void;  there  is  simply  a  failure  of 
evidence ;"  and  they  held  that  the  plain- 
tiff was  neither  entitled  to  damages 
upon  the  contract,  nor  to  recover  back 
the  payments  made  under  it  as  upon  a 
failure  of  consideration."]  However,  it 
is  not  necessary  in  order  that  the  statute 
should  apply  that  the  action  should  be 
brought  on  the  agreement ;  it  is  enough 
if  the  effect  of  the  action  is  to  "  charge" 
the  defendant  by  means  of  the  agree- 
ment. Thus  in  Carrington  v.  Roots,  2 
M.  &  W.  248,  trespass  for  asportavit  of 
a  cart,  plea  removal  of  it  damage  fea- 
sant, replication  that  defendant  had  sold 
a  crop  of  grass  to  plaintiff  with  liberty 
to  take  it,  quare,  Sic,  traverse  of  agree- 
ment; parol  evidence  of  such  a  sale  was 
held    inadmissible,    and    plaintiff  non- 


322 


SMITH    S     LEADING     CASES, 


suited.  [And  where  a  question  arises 
between  eitlier  of  the  contracting  par- 
ties and  a  stranger,  whether  a  contract 
has  passed  an  interest  in  services  or 
other  property,  the  stranger  may,  equally 
with  a  party  to  the  contract,  insist  upon 
the  statute.  Thus,  where  a  contract  of 
service  is  void,  as  between  the  parties 
to  it,  for  want  of  a  writing  to  satisfy  the 
statute,  the  master  can  maintain  no  ac- 
tion for  enticing  away  the  servant,  Sykes 
V.  Dixon,  9  A.  &.  E.  693 ;  and  a  vendor 
cannot,  where  the  contract  of  sale  is  in- 
valid by  the  statute,  effect  an  insurance 
upon  the  goods,  Stockdale  v.  Dunlop,  6 
M.  &  VV.  224 ;  nor,  it  seems,  could  he 
bring  an  action  against  the  carrier, 
treating  the  vendor  as  his  agent  to  for- 
ward, see  Coates  v.  Chaplin,  3  Q,.  B. 
4S3.  Also  it  is  observable  that  the  writ- 
ten memorandum  must  exist  before  ac- 
tion, and  in  that  respect  differs  from 
mere  evidence.  Bill  v.  Bament,  9  M. 
&  W.  36;  see  Fricker  v.  Tomlinson,  1 
Man.  &L  Gr.  773.  And,  indeed,  attend- 
ing to  the  distinction  pointed  out  by  the 
Lord  Chancellor  Cottenham  in  Dale  v. 
Hamilton,  2  Phillips,  266,  between 
agreements  and  declarations  of  trust; 
'•  that,  in  the  one  it  is  the  agreement 
itself,  which  is  the  origin  of  the  inter- 
est, tliatmust  be  in  writing;  in  the  case 
of  a  declaration  of  trust,  which  is  only 
the  recognition  of  a  pre-existing  inter- 
est, it  is  the  evidence   and  recognition. 


and  not  the  origin  of  the  transaction, 
that  must  be  in  writing,"  it  may  be  found 
difficult  to  impute  any  retroactive  efl'ect 
to  the  subsequent  written  memorandum 
of  an  agreement  within  the  statute,  not 
originally  reduced  into  writing.] 

When  to  an  action  brouglit  upon 
a  guaranty  or  other  instrument  falling 
within  the  fourth  section  of  the  Statute 
of  Frauds,  the  defendant  pleads  that 
there  is  no  such  note  or  memorandum 
in  writing  as  that  act  requires,  it  is  un- 
necessary to  set  out  the  memorandum  in 
the  replication,  though  once  it  was  con- 
sidered unsafe  not  to  do  so.  Wakeman 
V.  Sutton,  2  Ad.  &  Ell.  78;  Lysaught 
V.  Walker,  2  Bligh,  N.  S.  1.  Nor  is  it 
necessary,  in  declaring  on  such  an  in- 
strument, to  state  it  to  have  been  in 
writing.  Anon.,  Sal.  519;  per  Yates, 
J.,  3  Burr.  1890.  For  it  is  a  general 
rule  in  pleading,  that  when  a  statute 
regulates  the  mode  of  performing  an  act 
which  was  valid  at  common  law,  the 
same  certainty  of  allegation  is  sufficient 
after  the  statute  as  before;  but  it  has 
been  said  to  be  otherwise  in  a  plea. 
Case  v.  Barber,  T.  Raym.  450 ;  sed 
qua;re,  and  see  Peacock  v.  Purvis,  2  B. 
&  B.  362,  where  a  sale  of  growing  crops 
was  pleaded,  without  any  averment  that 
it  was  in  writing,  and  held  sufficient, 
though  Case  v.  Barber  was  cited  and 
relied  on. 


The  common  law  provided  a  safeguard  against  the  uncertainty  of  parol 
testimony,  in  ordinary  cases,  by  requiring  that  proof  of  a  consideration 
should  concur  with  that  of  a  promise,  to  establish  a  contract.  For,  under 
this  rule,  the  evidence  must  usually  extend  to  facts  as  well  as  words,  and  a 
recovery  cannot  be  based  upon  a  false  or  mistaken  relation  of  expressions, 
apparently  showing  a  promise,  which  has  not  really  been  given,  without 
going  further,  and  satisfying  the  jury  of  the  existence  of  some  transaction, 
in  which  the  alleged  promise  originated,  and  which  forms  a  sufficient  con- 
sideration for  its  support.  Sufficient  protection  is  thus  afforded  against  perjury 
•where  the  defendant  has  received  the  benefit  of  the  contract,  for,  in  this  case, 
his  liability  is  in  great  measure  independent  of  the  promise,  which  would  be 
implied  by  the  law,  if  not  given  expressly.  But  the  protection  is  not  so 
complete,  when  a  promise  by  one  man  is  sought  to  be  founded  upon  a  con- 
sideration moving  to  another,  because  there  the  liability  grows  out  of  the 
promise,  and  would  not  exist  without  it. 

Thus  when  suit  is  brought  on  an  alleged  contract  of  sale,  the  fact  of  the 
sale,  and  the  consequent  transfer  of  the  right  of  property  in  the  thing  sold, 


BIRKMYR     V.    DARNELL.  323 

must  be  satisfactorily  proved,  to  charge  the  purchaser  and  his  liability  is  a 
necessary  legal  inference  fropi  these  facts  when  once  established.  But 
when  the  question  arises  on  a  contract  of  guaranty  and  not  of  sale,  the 
liability  of  the  guarantor,  is  founded  wholly  on  his  alleged  promise,  and 
may  be  made  out  by  simply  showing  that  he  consented  to  be  answerable  for 
the  purchase-money,  at  or  before  the  time  of  the  sale.  He  cannot,  there- 
fore, defend  himself  against  a  misrepresentation  of  his  language,  by  an  appeal 
to  facts.  Thus  any  number  of  persons  may  be  made  collaterally  liable  for 
the  price  of  goods,  without  proof  of  any  new  or  additional  consideration,  by 
adducing  testimony  that  they  consented  to  be  answerable  for  its  payment, 
when  the  goods  were  sold.  And  the  danger  of  fraud  or  misrepresentation,  ia 
scarcely  less,  when  the  guaranty  is  alleged  to  have  been  given  after  the  sale 
was  effected,  for  although  in  this  case,  a  new  consideration  is  necessary,  yet 
it  may  consist  in  a  real  or  pretended  promise  of  forbearance  on  the  part  of 
the  vendor.  All  that  is  necessary,  therefore,  to  charge  one  man  on  an 
alleged  guaranty  of  the  antecedent  debt  of  another,  is  to  prove  a  conversa- 
tion between  the  guarantor  and  the  creditor,  from  which  the  jury  can  infer 
the  assumption  of  the  debt  by  the  former,  in  consideration  of  a  promise  of 
forbearance  given  by  the  latter. 

The  provision  of  the  fourth  section  of  the  statute  of  frauds,  which  declares 
that  no  action  shall  be  brought  upon  a  promise  to  answer  for  the  debt,  de- 
fault, or  miscarriage  of  another,  unless  the  agreement  or  some  memorandum, 
or  note  of  it  is  in  writing,  was  manifestly  intended  to  make  a  special  pro- 
vision, for  the  points  which  had  thus  been  left  unguarded,  by  the  more 
general  rule  of  the  common  law,  and  to  obviate  the  injustice  which  may 
arise,  from  making  men  liable  upon  the  uncertain  testimony  of  witnesses  as 
to  their  words,  in  those  cases  where  they  would  not  be  liable  upon  the  facts. 
It  has  recently  been  found  necessary  in  England,  to  carry  out  the  policy  of 
this  celebrated  statute,  with  reference  to  a  class  of  cases  which  had  grown 
up  since  its  enactment,  by  providing  that  debts  barred  by  the  statute  of 
limitations,  shall  not  be  revived  without  written  evidence  of  a  new  promise. 
The  uncertainty  attendant  upon  the  administration  of  justice,  in  all  cases  where 
the  liability  of  the  defendant  is  dependent  solely  upon  the  language  which 
he  has  held,  sufficiently  proves  the  reality  and  extent  of  the  dangers  against 
which  this  course  of  enactment  is  intended  to  guard,  but  the  difficulties 
which  it  has  introduced  are  hardly  less  than  those  which  it  has  abated. 
Notwithstanding  the  length  of  time  which  has  elapsed  since  the  passage  of 
the  statute  of  frauds,  its  true  construction  is  still  undetermined,  and  the 
courts  have  fluctuated  between  the  sense  of  the  hardship  which  would  result 
from  construing  it  rigidly,  and  the  fear  of  rendering  it  inoperative  by  a  more 
liberal  construction.  Tliis  is  true  in  a  great  degree  of  the  whole  statute, 
and  of  no  part  of  it  more  than  of  the  section  under  consideration.  It  is 
still  uncertain  whether  the  receipt  of  a  new,  and  distinct  consideration,  will 
take  a  promise  to  pay  the  antecedent  debt  of  another,  out  of  the  provisions  of 
the  statute  when  the  debt  itself  remains  in  force,  and  it  is  equally  uncertain 
whether  a  direct  contract  for  the  payment  of  a  cotemporaneous  debt,  can  be 
brought  within  them,  by  showing  that  it  is  one  of  suretyship,  although  not 
of  guaranty. 

At  common  law  any  number  of  persons,  may  be  bound  by  a  joint  or 
joint  and  several  promise,  even  where  the  consideration  of  it  moves  only 


324  smith's    leading   cases. 

to  one,  and  it  is  important  to  determine  whether  this  rule  has  been  varied 
by  the  provisions  of  the  statute  of  frauds.  It  would  seem  that  as  the  obli- 
gation imposed  by  such  a  contract,  is  common  to  all  the  parties,  it  can  hardly 
be  said  that  the  promise  of  any  of  them,  is  to  answer  for  the  default  or 
miscarriage  of  another,  and  not  for  their  own.  And  this  appears  to  be 
true,  even  where  one  or  more  of  the  parties  to  the  contract,  are  sureties,  if 
they  have  bound  themselves  directly  for  its  performance,  and  not  merely 
that  it  shall  be  performed  by  the  principal,  for  the  undertaking  is  not  the 
less  theirs,  because  he  has  received  the  benefit  of  the  consideration.  But 
when  the  contract  in  question  is  merely  one  of  guaranty,  that  is,  when  it 
does  not  impose  any  direct  liability,  and  consists  solely  in  an  engagement 
for  performance  by  the  principal,  it  is  manifestly  within  the  terms  of 
the  statute,  and  will  not  be  valid  unless  in  writing.  Whether,  therefore, 
the  engagement  of  a  party,  who  intervenes  in  a  contract  for  the  benefit  of 
another,  at  the  time  when  it  is  made,  is  within  the  statute,  might  be  thought 
to  depend  on  the  nature  of  his  liability,  and  not  on  that  of  the  person  in 
whose  behalf  he  has  made  himself  liable.  If  he  has  assumed  to  be  the 
paymaster,  and  has  thus  made  himself  directly  and  unconditionally,  although 
jointly,  answerable  for  the  debt,  the  statute  would  seem  to  be  inapplicable, 
but  if  his  engagement  be  merely  to  pay  if  the  other  does  not,  that  is,  if  it 
be  one  of  guaranty  and  not  merely  of  suretyship,  it  will  be  within  the 
direct  terms  of  the'  statute,  and  must  be  expressed  in  writing. 

If  this  construction  of  the  statute  be  correct,  it  must  follow  that  the  ques- 
tion, whether  a  promise  by  one  man  founded  on  a  consideration  moving  to 
another  is  within  the  statute,  is  not  necessarily  dependent,  on  whether  credit 
was  given  to  the  principal  debtor;  and  whether  he  is  liable  for  the  payment 
of  the  debt.  This  would  seem  obvious,  in  the  ordinary  case  of  a  joint  and 
several  promise  by  a  principal  and  surety,  for  as  under  these  circumstances, 
both  the  promisors  are  primarily  liable,  the  undertaking  of  each,  is  directly 
for  himself  and  not  for  the  other.  Thus  it  was  decided  in  Wainright  v. 
Straw,  15  Vermont,  215,  that  where  a  stove  was  sold  to  two  for  the  use 
of  one,  no  writing  was  necessary  to  render  both  liable.  The  relation  of 
the  purchasers  would  appear  to  have  been  manifestly  that  of  principal  and 
surety,  although  it  seems  not  to  have  been  so  understood  by  the  court.  In 
like  manner  it  was  held  by  the  Court  of  Appeals,  in  Durham  v.  Marrow,  2 
Comstock,  533,  affirming  the  judgment  of  the  court  below,  that  when  a 
surety  bound  himself  directly  and  immediately  for  the  price  of  a  horse,  sold 
to  his  principal,  the  engagement  was  his  own,  and  a  guaranty  of  a  note 
transferred  to  the  vendor  to  secure  its  performance  not  within  the  statute. 
And  even  when  the  promises  in  question,  are  several  and  collateral,  instead  of 
joint,  it  does  not  necessarily  follow  that  either  will  be  within  the  statute, 
for  if  both  promisors  have  bound  themselves  to  a  direct  and  immediate  per- 
formance, the  contract  of  each  is  clearly  original,  although  the  consideration 
may  have  moved  only  to  one.  It  was  said  by  Story,  J.,  in  D' Wolff  v. 
Rabaud,  1  Peters,  476,  that  under  these  circumstances  "  the  contract  is  tri- 
lateral, and  that  both  promisors  must  be  regarded  not  as  joint  contractors  on 
the  same  contract,  but  as  separate  contractors  upon  co-existing  contracts 
forming  part  of  the  same  original  transaction."  And  he  intimated  a  strong 
opinion,  that  where  this  is  the  case,  both  promises  are  original,  and  therefore 
binding,  although  not  in  writing.  This  doctrine  was  applied  in  the  sub- 
sequent case  of  Townsley  v.  Sumral,  2  Peters,  170,  to  a  promise  by  the 


BIRKMYR    v.    DARNELL.  325 

defendant  to  accept  bills  to  be  drawn  on  him  by  a  third  person,  in  favour  of 
the  plaintiff,  which  was  held  not  to  be  within  the  statute  of  frauds,  although 
given  in  consideration  of  advances  made  to  the  drawer,  for  which  he  was 
liable.  A  verbal  promise  by  A.,  if  C.  would  advance  money  to  B.,  to  repay 
it  to  C,  was  said  not  to  be  within  the  statute,  although  B.'s  liability  might 
be  co-extensive  with  A.'s.  And  in  the  recent  case  of  The  Proprietors  v. 
Abbott,  14  New  Hampshire,  157,  where  the  defendant  had  promised,  that  if 
the  plaintiffs  would  permit  lumber,  belonging  to  a  third  person,  to  pass 
through  their  locks,  he  would  pay  the  tolls  :  the  engagement  thus  given  was 
held  not  to  require  a  writing,  although  there  would  seem  to  be  little  doubt, 
that  it  did  not  supersede  the  implied  liability  of  the  owner  of  the  lumber. 

But  this  construction  of  the  statute,  must  be  admitted  to  be  inconsistent 
with  the  rule  laid  down  by  Serjeant  Williams,  in  his  note  to  Firth  v. 
Stanton,  on  the  authority  of  Matson  v.  Wharam,  2  Term,  80,  (supra,)  that 
•where  the  party  who  receives  the  consideration  is  liable,  a  promise  by  an- 
other to  pay  for  it,  must  be  in  writing.  If  this  rule  be  taken  literally,  it 
must  necessarily  invalidate  every  verbal  contract  of  suretyship,  in  which 
the  liability  of  the  principal  is  co-extensive  with  that  of  the  surety.  But  it 
may  be  doubted  whether  any  decision  has  yet  gone  so  far,  as  to  refuse  to  give 
effect  to  a  direct  contract  for  the  purchase  of  goods,  merely  because  one  of 
the  purchasers  was  a  surety,  and  on  referring  to  the  principal  case,  and  to 
that  of  Matson  v.  Wharam,  which  are  cited  by  Serjeant  Williams,  as 
sustaining  this  position,  it  will  be  seen  that  the  promise  in  question,  was 
manifestly  that  the  contract  should  be  performed  by  the  principal,  and  not 
that  the  defendant  would  perform  it  himself.  In  other  words  it  was  a  pro- 
mise of  guaranty,  and  not  merely  of  suretyship,  and  as  such,  unquestionably 
within  the  statute. 

It  must,  however,  be  admitted,  that  the  weight  of  authority  is  in  favour 
of  the  rule  as  laid  down  by  Serjeant  Williams,  which  is  sustained  by 
innumerable  dicta,  if  not  by  many  actual  decisions ',  Elder  v.  Warficld,  7 
Harris  &  Johnson,  391;  Kurlock  v.  Brown,  1  Richardson,  223;  Connelly 
v.  Kettlewell,  1  Gill  &  Johnson,  260;  Zeland  v.  Crayon,  1  M'Cord,  100; 
Taylor  v.  Drake,  4  Strobhart,  437 ;  Rhoads  v.  Leeds,  3  Stuart  &  Porter, 
212  ;  Faires  v.  Lodoanc,  10  Alabama,  50 ;  Blake  v.  Perlin,  22  Maine, 
395;  Matthews  v.  Milton,  4  Yerger,  576;  Rogers  v.  Kneeland,  13  Wend. 
114,  121 ;  Doyle  v.  White,  26  Id.  341;  Brady  v.  Sackrider,  1  Sandford,  S.  C. 
514 ;  House  v.  Wagner,  1  M'Cord,  395 ;  Leonard  v.  Vredenburgh,  8  John- 
son, 29;  G-allager  v.  Brunei,  6  Cowen,  346;  Tileston  v.  Nettleton,  6  Pick. 
509 ;  Aldrich  v.  Jewell,  12  Vermont,  125 ;  Ware  v.  Stephenson,  10  Leigh, 
145.  I  apprehend,  said  Chancellor  Walworth,  in  delivering  his  opinion  in 
the  Court  of  Appeals,  in  Rogers  v.  Kneeland,  "that  the  object  of  the  statute 
was  to  reach  every  case  of  mere  seretyship,  whether  the  agreement  of  the 
surety  was  collateral  to  a  previous  promise  or  liability  on  the  part  of  the  prin- 
cipal debtor,  or  only  collateral  to  a  promise  or  agreement,  made  at  the  same 
time  with  the  promise  of  the  surety,  to  indemnify  against  a  future  default  or 
liability,  of  such  principal  debtor.  Where  the  whole  credit  is  not  given  to 
the  person  who  comes  in  to  answer  for  another,  the  promise  is  collateral ; 
and  in  all  such  cases  there  must  be  an  agreement  in  writing,  containing  a 
sufficient  consideration  to  support  it — in  other  words,  it  is  a  case  within  the 
statute." 


326  smith'iS  leading  cases. 

It  was  said,  in  like  manner,  in  Fairea  v.  Lodotoc,  tliat  where  credit  is 
given,  not  to  the  party  who  receives  the  benefit  of  the  contract,  but  to  a 
third  person  who  has  verbally  promised  to  pay  for  it,  the  latter  will  be 
liable,  because  the  former  is  not ;  while  in  Cahill  v.  Bigelow,  18  Pick.  369, 
it  was  said,  that  where  the  promise  is  made  at  the  time  when  the  debt  origi- 
nates, "  the  test  to  decide,  whether  the  party  promising  is  an  original 
debtor,  or  merely  a  guarantor,  is  whether  credit  was  given  to  the  party 
receiving  the  goods  ?"  ''  If  it  was,  then  such  promisor  is  a  guarantor  only, 
undertaking  to  pay  another's  debt.  But  if  no  credit  was  given  to  the  per- 
son receiving  the  goods,  then  as  the  promisor  is  himself  debtor  for  goods 
sold  to  him  and  delivered  to  another  person,  by  his  order,  his  promise  is  not 
to  pay  the  debt  of  another,  and  a  parol  promise,  being  made  upon  a  good 
consideration,  is  a  good  contract  at  common  law,  and  binds  him,  and  is  not 
within  the  statute  of  frauds." 

It  will  be  observed,  that  the  dictum  last  cited,  fails  to  draw  a  distinc- 
tion between  a  direct  contract  of  suretyship  and  one  of  mere  guaranty,  and 
thus  leaves  it  doubtful,  whether  the  general  principle  which  it  declares,  is 
applicable  in  the  former  case,  or  only  in  the  latter.  And  this  ambiguity, 
will  be  found  to  pervade  most  of  the  judicial  opinions  which  have  been 
delivered  on  this  subject,  either  in  this  country  or  in  England. 

It  may  undoubtedly  be  admitted,  that  the  object  of  the  statute  of  frauds, 
which  is  to  protect  the  defendant  against  a  mistaken  or  fraudulent  statement 
of  his  language,  seems  to  require  that  when  the  suit  cannot  be  sustained  on 
an  implied  promise,  it  shall  not  be  so  on  one  which  is  express.  And  there 
would  consequently  seem  to  be  much  reason  for  holding  with  Buchanan, 
C.  J.,  in  Elder  v.  Warfield,  that  when  the  promise  in  question  cannot  be 
given  in  evidence  under  the  money  counts,  it  is  within  the  statute,  and  must 
be  in  writing.  But  it  does  not  necessarily  follow,  that  the  application  of  this 
test  will  invalidate  every  verbal  promise  made  by  a  surety.  On  the  contrary,  it 
appears  to  be  well  settled,  that  when  goods  are  sold  and  delivered  to  two, 
the  vendor  may  recover  in  indebitatus  assumpsit  against  both,  even  if  it  be 
shown  that  one  is  a  mere  surety,  and  was  known  to  be  such  at  the  time  of 
the  sale.  And  the  general  rule  which  applies  in  this  case,  that  when  the 
consideration  of  an  express  promise  has  been  fully  executed,  and  nothing 
remains  open,  under  the  contract,  except  a  debt,  the  law  will  raise  an  im- 
plied promise  for  its  payment,  would  seem  also  to  apply,  where  goods  are 
sold  or  money  advanced  to  the  principal  at  the  request  of  the  surety,  and  on 
the  faith  of  a  direct  promise  of  payment  given  by  the  latter.  However  rare 
a  count  in  indebitatus  assumpsit  against  one  man,  for  goods  sold  at  his 
request  to  another,  may  be  in  practice,  there  appears  to  be  nothing  which 
forbids  its  being  resorted  to  in  principle.  For  the  sale  of  the  goods,  in 
pursuance  of  the  request  of  the  promisor,  and  on  the  faith  of  his  promise, 
would  undoubtedly  make  it  his  duty  to  pay  for  them,  and  the  law  would  imply 
a  promise  on  his  part  to  perform  it.  If  this  be  so,  it  follows,  that  the  dis- 
tinction taken  in  Elder  v.  Warfield,  sustains  instead  of  opposing  the  position, 
that  a  recovery  may  be  had  against  a  surety  on  parol  testimony,  and  without 
the  production  of  a  contract  in  writing.  When,  however,  a  promise  to  answer 
for  a  consideration  moving  to  another,  is  one  of  guaranty,  and  not  for  direct 
payment  or  performance,  the  case  will  be  within  the  statute,  and   the  plain- 


BIRKMYR     V.   DARNELL.  327 

tiff  can  only  recover,  by  resorting  to  a  special  count,  and  sustaining  it  by 
written  evidence. 

The  recent  case  of  Carville  v.  Crane,  5  Ilill,  483,  is  clearly  within  this 
distinction  in  point  of  fact,  whatever  may  be  thought  of  the  language  held 
by  the  court.  The  suit  was  there  brought  on  a  promise  by  the  defendant,  to 
endorse  a  promissory  note  given  for  the  price  of  goods  sold  to  the  maker 
on  the  faith  of  the  promise.  The  agreement,  therefore,  was  manifestly  in 
its  remote,  if  not  in  its  immediate  operation,  one  merely  of  guaranty,  and 
the  liability  which  it  would  have  imposed,  if  fulfilled,  contingent  upon 
the  failure  of  the  maker  of  the  note,  to  pay  it  at  maturity.  And  this 
was  no  doubt  enough  to  bring  the  case  within  the  statute.  In  Bushell 
v.  Beavan,  1  Bing.  N.  C.  103,  it  was,  however,  held,  that  a  promise  by  an 
attorney  to  procure  the  signature  of  a  third  person,  to  a  guaranty  of  the  debt 
of  his  client,  in  consideration  of  which,  the  plaintiffs  consented  that  a  ship 
which  the  latter  had  chartered,  should  put  to  sea,  was  a  new  and  original 
undertaking,  and  not  within  the  statute. 

Where  the  avowed  motive  for  a  promise  to  pay  for  goods  furnished,  or 
advances  made  to  a  third  person,  is  one  of  gift  or  charity,  the  promisor  will 
be  bound  without  a  writing,  because  no  suit  can  be  brought  against  the 
beneficiary;  Loomis  v.  Newhall,  15  Pick.  166.  This  principle  does  not 
apply  where  the  intention  of  the  parties  is,  that  the  beneficiary  shall  be 
primarily  and  directly  answerable  for  the  debt,  although  he  may  have  escaped 
from  liability,  in  consequence  of  some  legal  or  technical  obstacle  or  disability. 
A  promise  to  guaranty  the  payment  of  goods  sold  to  a  minor,  can  hardly  be 
regarded  as  out  of  the  statute,  because  the  purchaser  may  plead  infancy  to 
an  action  brought  for  the  price.  But  there  is  no  doubt,  that  the  minority 
of  a  party  who  appears  prima  facie  as  a  principal  debtor,  may  be  a  strong 
reason  for  believing  that  he  is  not  so  in  fact,  and  that  credit  has  been  really 
given,  not  to  him,  but  to  a  third  person,  who  has  promised  to  be  answerable 
for  the  payment  of  the  debt.     Chapin  v.  Lapham,  20  Pick.  457. 

It  has  been  frequently  held,  that  a  promise  of  indemnity  against  any  loss 
which  may  be  sustained,  in  consequence  of  becoming  surety  or  guarantor 
for  a  third  person,  does  not  require  a  writing  to  give  it  validity.  For  as 
such  a  promise,  is  not  that  another  will  perform  that  which  he  has  under- 
taken, but  that  the  promisee  shall  not  lose  by  an  engagement  into  which 
he  has  entered  at  the  request  of  the  promisor,  it  has  been  said  to  be  direct 
and  original,  and  therefore  not  within  the  terms  of  the  statute.  Chapin  v. 
Merrill,  4  Wend.  657 ;  Harrison  v.  Sawtel,  10  Johnson,  242 ;  Chapin  v. 
Lapham,  20  Pick.  467  ;  Peck  v.  Thompson,  15  Vermont,  637  ;  Holmes 
V.  Knight,  10  New  Hampshire,  175;  Doane  v.  Newcomb,  10  Missouri, 
69  ;  Lucas  v.  Chamberlain,  8  B.  Monroe,  276.  And  as  the  nature  of  such 
a  promise,  cannot  vary,  merely  because  the  promisor  is  jointly  or  severally 
liable  for  the  debt  to  which  it  relates;  a  promise  by  one  surety,  to  indem- 
nify another  against  the  consequences  of  his  suretyship,  by  taking  the  whole 
ultimate  responsibility  on  himself,  comes  under  the  same  reasoning. 
Thomas  v.  Cook,  8  B.  &  C.  728 ;  Jones  v.  Shorter,  1  Kelly,  294. 

The  distinction  relied  on  in  these  cases  is  somewhat  subtle  in  its  nature, 
and  has  recently  been  overruled  both  in  New  York  and  England.  In  Greene 
V.  Creswell,  10  A.  &  E.  453,  the  plaintiff  relied  on  Thomas  v.  Cook,  to  sus- 
tain a  recovery  on  a  promise  to  indemnify  him  for  becoming  bail  for  a  third 


328  smite's   leading  cases. 

person,  but  the  authority  of  that  case  was  denied,  and  it  was  held,  that  every 
promise  to  pay  tlie  debt  of  another,  is  a  promise  of  indemnity,  and  that  the 
circumstances  under  which  the  engagement  of  the  defendant  had  been  given, 
neither  put  it  beyond  the  words  of  the  statute,  nor  the  mischief  against  which 
it  was  intended  to  guard.  In  Staats  v.  Howland,  4  Dcnio,  559,  a  promise  to 
indemnify  the  plaintiff,  for  such  endorsements  as  he  might  make  for  the 
accommodation  of  another  person,  was  treated  as  indisputably  within  the 
provisions  of  the  statute.  And  in  the  recent  case  of  Kingsley  v.  Balcome,  4 
Barbours,  S.  C.  131 ;  Chapin  v.  Merrill  was  overruled,  and  it  was  decided, 
that  a  promise  to  indemnify  one  man  for  assuming  the  debt  of  another,  is 
substantially  the  same  thing  as  a  direct  and  immediate  assumption  of  the 
debt,  and,  consequently,  requires  a  writing  to  give  it  validity. 

It  was  held,  in  like  manner,  in  Wing  v.  Terry,  5  Hill,  160,  that  when  a 
bill  was  accepted  for  the  accommodation  of  one  of  the  drawers,  a  parol 
agreement  by  the  other,  who  was  merely  a  surety,  to  indemnify  the  acceptor, 
was  within  the  statute,  as  being  substantially  an  undertaking  for  the  default 
of  the  principal  debtor.  And  as  a  promise  to  indemnify  an  agent,  for  the 
expense  which  he  may  incur  in  defending  a  suit  on  behalf  of  his  prin- 
cipal, falls  within  the  principle  of  these  decisions,  it  will  be  invalid  unless 
expressed  in  writing.     Rogers  v.  Kneeland,  10  Wend.  248 ;  13  id.  114. 

The  question  in  dispute  in  these  cases,  seems  to  depend  on,  whether  a 
direct  engagement  is  within  the  statute,  merely  because  it  will  not  take  effect 
unless  a  default  be  made  by  a  third  person,  in  the  performance  of  a  contract 
into  which  he  has  entered,  with  reference  to  the  same  subject-matter.  If 
this  be  so,  it  necessarily  follows,  that  the  promises  given  in  Wing  v.  Terry, 
and  Chapin  V.  Merrill,  were  within  the  statute,  for  although  the  engagement 
of  the  defendant  was  unconditional  in  both  cases,  there  could  have  been  no 
recovery  upon  it  in  either,  unless  the  principal  debtor  had  failed  in  the  per- 
formance of  his  undertaking. 

Where  a  party  has  once  been  legally  liable  for  a  debt,  a  promise  to  pay 
it  will  not  be  within  the  statute^  merely  because  it  is  primarily  the  debt  of 
another,  or  because  his  legal  liability  has  ceased  at  the  time  of  the  promise. 
Thus  an  indorsee  who  has  been  discharged  by  a  want  of  demand  or  notice, 
will  be  bound  by  a  verbal  promise  of  payment,  if  given  with  full  knowledge, 
that  he  is  so  discharged.  Hopkins  v.  Liswell,  12  Mass.  52 ;  Tibbetts  v. 
Dowd,  23  Wend.  379.  And  it  is  equally  well  settled,  that  when  a  debt 
due  by  another,  is  assigned  as  security  or  satisfaction  of  a  debt  due  by  the 
assignor,  a  guaranty  of  its  payment  will  not  be  within  the  statute,  because 
it  is  merely  subsidiary  to  the  purpose,  for  which  the  assignment  is  made. 
This  is  sufficiently  evident  in  ordinary  cases,  where  the  debt  does  not 
pass  at  law,  nor  become  legally  due  to  the  assignee,  and  he  acquires  a 
more  equitable  right  to  the  proceeds.  Johnson  v.  Gilbert,  4  Hill,  178 ; 
Hargreaves  v.  Parsons,  13  M.  &  W.  561.  And  the  principle  is  the  same, 
when  the  debt  thus  transferred,  is  negotiable  in  its  character,  and  the  assignee 
is  entitled  to  enforce  it  by  a  suit  in  his  own  name.  Curtis  v.  Brown,  2 
Barbour's  S.  C.  31;  Brown  v.  Curtis,  2  Comstock,  225;  Manrow  v.  Dur- 
ham, 3  Hill,  284;  Durham  v.  Manrow,  2  Comstock,  533;  Jones  v.  Palmer, 
1  Douglass,  Michigan  R.  379. 

It  is  equally  well  settled,  that  the  contract  of  a  factor,  who  sells  under  a 
del  credere  commission,  is  not  within  the  statute,  and  does  not  require  a 


« 

BIRKMYR    V.    DARNELL.  329 

writing  to  give  it  validity.  For  altliougli  such  a  contract  may  be  nominally 
one  of  guaranty,  it  is  essentially  original,  and  is  in  effect  an  agi'eenicnt,  that 
the  parties  to  whom  the  sales  are  made,  are  solvent,  and  able  to  meet  their 
engagements.     Wolf  v.  Koppell,  5  Hill,  748. 

The  most  natural  division  of  the  cases,  which  arise  under  the  statute  of 
frauds,  is  into  those  in  which  the  engagement  of  the  promise  is  given  at  or 
before  the  creation  of  the  debt,  and  those  in  which  it  is  given  subsequently. 
The  second  class  has  again  been  subdivided  into  two  others;  those  in  which 
the  promise  is  given  upon  a  consideration  growing  out  of  the  debt  itself,  and 
those  in  which  the  consideration  is  new  and  distinct  in  its  nature.  And  it 
has  been  held,  that  this  latter  class  is  not  within  the  statute,  which  is  limited 
in  its  operation  to  the  others.  This  view  was  taken  by  Kent,  C.  J.,  in  Leonard 
V.  Vredenburgh,  8  Johnson,  29,  where  he  held  the  following  language.  "  There 
are  three  distinct  classes  of  cases  on  this  subject,  which  require  to  be  dis- 
criminated; 1.  Cases  in  which  the  guaranty  or  promise  is  collateral  to  the 
principal  contract,  but  is  made  at  the  same  time,  and  becomes  an  essential 
ground  of  the  credit  given  to  the  principal  or  direct  debtor.  Here,  as  we 
have  already  seen,  is  not,  nor  need  be,  any  other  consideration,  than  that 
moving  between  the  creditor  and  original  debtor.  2.  Cases  in  which  the 
collateral  undertaking  is  subseqvient  to  the  creation  of  the  debt,  and  was  not 
the  inducement  to  it,  though  the  subsisting  liability  is  the  ground  of  the  pro- 
mise, without  any  distinct  and  unconnected  inducement.  Here  there  must  be 
some  further  consideration  shown,  having  an  immediate  respect  to  such  lia- 
bility, for  the  consideration  for  the  original  debt  will  not  attach  to  this  sub- 
sequent promise.  The  cases  of  Fish  v.  Hutchinson,  (2  Wils.  94,)  of  Char- 
ter V.  Beckett,  (7  Term  Kep.  201,)  and  of  Wain  v.  Warlters,  are  samples 
of  this  class  of  cases.  3.  A  third  class  of  cases,  and  to  which  I  have  al- 
ready alluded,  is  when  the  promise  to  pay  the  debt  of  another,  arises  out  of 
some  new  and  original  consideration  of  benefit  or  harm  moving  between  the 
newly  contracting  parties.  The  two  first  classes  of  cases  are  within  the 
statute  of  frauds,  but  the  last  is  not.     (1  Saund.  211,  note  2.)" 

The  distinctions  thus  taken,  are  sustained  although  with  some  discrepancies 
in  point  of  theory  and  application,  by  the  prior  and  subsequent  course  of  de- 
cision. It  seems  reasonably  well  settled,  that  a  verbal  promise  to  be  answer- 
able for  the  antecedent  debt  of  another  will  be  valid,  where  it  is  made  upon  a 
new  and  independent  consideration,  although  the  debt  itself  still  remain  in 
full  force,  but  that  where  the  consideration  grows  out  of  the  original  contract, 
the  promise  will  be  within  the  terms  of  the  statute.  "  When,"  said  Savage, 
C.  J.,  in  Farley  v.  Cleveland,  4  Cowen,  432,  439,  "  there  is  anew  and  ori- 
ginal consideration  of  benefit  to  the  defendant,  or  harm  to  the  plaintiff, 
moving  to  the  party  making  the  promise,  the  subsisting  liability  of  the 
original  debtor  is  no  objection  to  the  recovery."  Thus  a  promise  to 
pay  an  antecedent  debt,  in  consideration  of  property  placed  in  the  hands 
of  the  promisor  by  the  debtor,  has  been  held  not  to  require  a  writing  to  give 
it  validity.  Olmstead  v.  Greely,  18  Johnson,  12;  Farley  v.  Cleveland, 
4  Cowen,  432 ;  9  id.  639 ;  Ellwood  v.  Monk,  5  Wend.  235 ;  Myers  v. 
Morse,  13  Johnson,  425 ;  Smith  v.  French,  2  Scammon,  321 ;  Scott  v. 
Thomas,  1  id.  58 ;  Chandler  v.  Davidson,  6  Blackford,  367 ;  Kershaw  v. 
Whittaker,  1  Brevard,  9 ;  Hilton  v.  Dawson,  21  Maine,  410 ;  McKridell 
V.  Jackson,  4  Alabama,  230 ;  Lee's  ad'r  v.  Fontaine,  10  id.   755.     The 


» 

330  smith's  leading  cases. 

effect  will  be  the  same,  when  the  consideration  consists  in  the  relinquish- 
ment of  a  lien  held  by  the  promisee,  although  merely  for  the  security  of  the 
debt  itself.  Marcein  v.  Mack,  10  Wend.  461 ;  Castling  v.  Aubert,  2  East, 
325;  Dunlap  v.  Thorne,  1  liichardson,  213;  Henderson  v.  Langford,  3 
Strobhart.  407.  Thus  in  Williams  v.  Leper,  3  Burrow,  1886,  the  abandon- 
ment by  a  landlord  of  a  distress  levied  on  the  goods  of  the  tenant,  was  held 
sufficient  to  take  a  promise  to  pay  the  rent  given  by  a  broker  in  whose 
hands  the  goods  had  been  placed  for  sale,  out  of  the  statute.  The  point 
was  held  the  same  way  in  Slungerland  v.  Morse,  7  Johnson,  463,  under 
similar  circumstances,  save  that  the  party  who  gave  the  promise,  had  no 
right  or  interest  whatever  in  the  property  distrained  by  the  landlord.  And 
in  Tindall  v.  Touchberry,  3  Strobhart,  177,  the  withdrawal  of  a  levy  on  the 
goods  of  a  debtor,  was  held  to  give  validity  to  an  oral  promise  by  a  third 
person  to  pay  the  debt. 

But  when  the  consideration,  instead  of  being  some  new  and  distinct  mat- 
ter, is  a  mere  continuation  or  performance  of  the  obligation  imposed  by  the 
antecedent  contract,  the  promise  will  require  a  writing  to  give  it  validity. 
Although,  therefore,  forbearance  to  bring  suit  against  the  original  debtor,  or 
the  discontinuance  of  a  suit  already  commenced,  be  as  good  a  consideration 
at  common  law,  as  the  relinquishment  of  a  hold  upon  his  goods,  it  has  been 
held  to  be  insufficient,  to  give  a  right  of  recovery  on  a  verbal  promise  for 
the  payment  of  the  debt.  Fish  v.  Hutchinson,  2  Wilson,  94;  Simpson  v. 
Patten,  4  Johnson,  422 ;  Larson  v.  Wyman,  14  Wend.  246 ;  Watson  V. 
Kandall,  20  id.  201;  Bennett  v.  Pratt,  4  Denio,  275;  Durham  v.  Arlidge, 
1  Strobhart,  5 ;  Hilton  v.  Dawson,  21  Maine,  410 ;  Caperton  v.  Gray,  4 
Yerger,  563.  Thus  in  Nelson  v.  Boynton,  3  Metcalf,  390,  forbearance  to 
levy  an  attachment  on  the  real  estate  of  the  father,  was  held  insufficient  to 
sustain  a  parol  promise  to  pay  the  debt  by  his  son.  In  like  manner  it  is 
well  settled,  that  an  assent  by  one  of  the  parties  to  a  contract  to  go 
on  and  perform  it,  on  the  faith  of  a  promise  of  payment,  given  by  a 
third  person,  is  a  sufficient  consideration  to  support  the  promise.  Carroll 
V.  Nison,  4  Watts  &  Sergeant,  517.  But  as  such  a  consideration,  con- 
sists wholly  in  the  performance  of  the  antecedent  contract,  and  does  not 
arise  out  of  a  new  and  distinct  transaction,  the  promise  will  not  be  valid 
without  a  writing.  Tompkins  v.  Smith,  3  Stewart  &  Porter,  54 ;  Puckett 
V.  Bates,  4  Alabama,  390.  Thus  where  the  plaintiff  who  had  been  employed 
by  a  contractor  to  put  up  the  walls  of  a  house,  which  the  contractor  had 
undertaken  to  build  for  the  defendant,  refused  to  go  on  with  the  work,  unless 
the  latter  would  promise  to  pay  him,  which  he  finally  did;  it  was  held  that 
this  promise  was  within  the  provisions  of  the  statute,  because  the  consideration 
consisted  simply,  in  the  performance  of  the  original  contract  to  which  the  pro- 
mise related.  It  was  admitted,  that  if  the  evidence  had  shown  that  the  agree- 
ment with  the  contractor  was  rescinded,  and  that  with  the  defendant  substi- 
tuted in  its  stead,  the  case  would  have  been  taken  out  of  the  statute,  for  the 
promise  given  by  the  latter,  would  then  have  been  simply  on  his  own  account 
and  not  collateral  to  a  third  person.  The  same  principle  was  applied  in 
another  form  in  Loomis  v.  Newhall,  15  Pick.  146,  where  a  promise  by  a 
father  to  pay  for  the  board  of  his  son,  was  held  to  be  within  the  statute, 
because  the  only  consideration  consisted  in  the  benefit  conferred  on  the  son, 
and  not  in  a  distinct  and  independent  transaction.     And  this  doctrine  is 


BIRKMYR    V.    DARNELL.  331 

fully  sustained  by  other  cases  in  Vermont  and  Massachusetts.  Stone  v. 
Symmes,  18  Pick.  467;  Newell  v.  Ingraham,  15  Vermont,  422;  Smith  v. 
Hyde,  19  id.  54 ;  Anderson  v.  Davis,  9  Vermont,  130. 

The  distinction  thus  taken,  unquestionably  accords  with  the  policy  of  the 
statute,  and  protects  men  from  being  made  liable  for  the  contracts  of  others, 
on  the  allegation  of  a  verbal  promise,  and  without  proof  of  some  new  and  dis- 
tinct transaction  of  a  nature  to  render  them  liable,  apart  from  the  promise.  The 
res  gestae  alone,  said  Lord  Mansfield,  in  Williams  v.  Leper,  entitle  the  plain- 
tiff to  a  recovery;  and  whenever  this  is  the  case,  the  defendant  is  not  charged 
solely  on  his  promise,  and  the  mischief  which  the  statute  was  intended  to 
obviate  does  not  exist.  But  as  the  distinction,  with  respect  to  the  nature 
of  the  consideration,  on  which  these  decisions  proceed,  was  unknown  to  the 
common  law  and  is  not  susceptible  of  an  exact  definition,  it  is  not  surprising 
that  there  should  be  some  inconsistency  and  difficulty  in  its  practical  applica- 
tion. Thus  it  is  admitted  on  all  hands,  that  a  promise  to  pay  the  debt  of 
another,  in  consideration  of  forbearance  to  pursue  the  debtor,  is  within  the 
Statute.  But  it  is  was  held  in  Slingerland  v.  Morse,  and  Mercein  v.  Mack,  that 
when  the  remedy  of  the  creditor  has  ceased  to  be  merely  personal,  and  has 
taken  the  shape  of  a  lien  on  the  goods  or  property  of  the  debtor,  an  abandon- 
ment of  the  hold  thus  acquired,  will  be  such  a  new  and  distinct  considera- 
tion, as  to  take  a  promise  by  a  third  person  to  pay  the  debt,  out  of  the 
Statute.  And  in  Kussell  v.  Babcock,  14  Maine,  140,  this  view  of  the  law 
was  carried  to  the  extent  of  deciding,  that  a  verbal  promise  by  the  defendant 
to  be  answerable  for  a  debt,  if  the  plaintiff  would  refrain  from  putting  an 
execution  against  the  debtor  in  the  hands  of  the  sheriff,  was  binding, 
although  the  consideration  was  manifestly  one  of  forbearance,  and  was  so 
alleged  in  the  declaration.  There  are,  on  the  other  hand,  cases  which 
treat  the  suspension  or  abandonment,  of  a  levy  or  distress  on  the  goods 
of  the  debtor,  as  being,  a  mere  forbearance  to  enforce  the  antecedent  con- 
tract, and  not  such  a  new  and  distinct  transaction  as  will,  in  the  language 
of  Lord  Mansfield,  in  Williams  v.  Leper,  bind  the  defendant  by  force  of 
the  facts  and  not  of  his  promise.  Thus  it  was  held  in  Nelson  v.  Boynton, 
3  Metcalf,  396,  that  the  dissolution  of  an  attachment  and  consequent  loss 
of  a  lien  on  the  real  estate  of  a  father,  on  the  faith  of  a  promise  of  payment 
given  by  his  son,  would  not  take  the  promise  out  of  the  provisions  of  the 
statute.  The  court  took  the  distinction,  between  the  case  before  them,  and 
that  of  Williams  v.  Leper  that  while  in  the  one,  the  relinquishment  of  the 
lien  was  beneficial  to  the  promisor,  who  had  been  employed  to  sell  the  goods, 
in  the  other  the  benefit  accrued  solely  to  the  original  debtor.  But  this  dis- 
tinction, which  makes  the  effect  of  a  consideration,  depend  on  the  benefit  to 
the  promisor,  instead  of  the  loss  to  the  promisee,  is  one  unknown  to  the 
common  law,  and  of  questionable  validity  as  measured  by  the  standard 
of  general  reason.  Nor  can  it  serve  to  reconcile  the  decision  in  Nelson  v. 
Boynton,  with  those  in  Slingerland  v.  Morse,  and  Mercein  v.  Mack,  where 
the  relinquishment  of  the  lien,  seems  to  have  enured  solely  to  the  debtor. 

In  Barker  v.  Bucklin,  2  Denio,  45,  the  general  opinion  that  a  new  con- 
sideration as  between  promisor  and  promisee,  will  take  a  promise  to  pay 
the  antecedent  debt  of  a  third  person,  out  of  the  statute,  was  denied  to  be 
law,  and  the  novel  ground  taken,  that  no  recovery  can  be  had  in  such  cases, 
unless  the  consideration,  for  the  promise  moves  from  the  debtor  or  from  a 


332  smith's    leading   cases. 

third  person,  and  not  from  the  creditor.  And  the  cases  of  Farley  v.  Cleve- 
land, and  Mercein  v.  Mack,  as  well  as  the  case  actually  before  the  court, 
were  put  on  the  ground,  that  where  the  promise  is  given  upon  a  consideration 
moving  from  the  debtor  himself,  the  contract  is  really  with  him,  and  the 
creditor  only  entitled  to  enforce  it  as  being  the  party  beneficially  interested 
in  its  performance.  But  the  position  thus  assumed,  which  denies  a  reco- 
very to  the  creditor  in  the  only  case,  when  he  could  have  enforced  it  at 
common  law,  is  inconsistent,  both  with  the  language  of  the  court  and  the  facts 
in  Slugerland  v.  Morse,  and  Mercein  v.  Mack,  and  with  the  language  held  by 
the  court,  if  not  with  the  facts  in  Williams  v.  Leper,  and  Farley  v.  Cleveland. 
It  was,  notwithstanding,  treated  as  sound  in  the  subsequent  case  of  Kings- 
ley  V.  Balcombe,  4  Barbour's  S.  C,  131,  where  the  court  denied  the  accu- 
racy of  the  rule  laid  down  by  Savage,  C.  J.,  in  Farley  v.  Cleveland,  and 
held  that  as  a  new  consideration  was  requisite  at  common  law,  to  give  validity 
to  a  promise  for  the  payment  of  an  antecedent  debt,  the  statute  is  inopera- 
tive unless  it  goes  further,  and  requires  a  writing. 

There  are,  moreover,  several  decisions,  which  refuse  to  admit  that  the 
nature  of  the  consideration,  can  vary  the  character  of  the  promise,  and  hold 
that  a  verbal  promise  to  pay  the  debt  of  another,  is  invalid  in  all  cases, 
unless  the  debt  is  extinguished  and  the  promise  accepted  in  its  stead. 
Jackson  v.  Rayner,  12  Johnson,  291 ;  Campbell  v.  Tindley,  3  Humphreys, 
330.  And  on  the  other  hand,  it  is  well  settled,  that  such  a  promise  will  be 
without  the  statute,  when  it  is  based  upon  a  direct  or  consequential  extin- 
guishment of  the  debt.  Skilton  v.  Brewster,  8  Johnson,  376 ;  Cooper  v. 
Chambers,  4  Devereux,  261 ;  Corbit  v.  Cochran,  Riley,  44. 

The  difficulties  which  have  attended  the  construction  and  application  of 
the  fourth  section  of  the  Statute  of  Frauds,  are  so  numerous  and  perplexing, 
as  to  justify  a  doubt,  whether  the  innovation  which  it  made  on  the  rules  of 
the  common  law,  has  been  really  beneficial.  And  some  eminent  judges 
have  expressed  the  opinion,  that  it  has  been  the  occasion  of  more  fraud,  than 
it  has  prevented.  In  the  state  of  Pennsylvania,  where  the  provisions  of 
this  section  have  not  been  re-enacted,  no  ill  consequences  have  resulted,  or  at 
least  none  which  can  be  compared  in  frequency  and  magnitude,  with  those 
which  it  has  occasioned  in  those  parts  of  the  Union,  where  it  has  been  intro- 
duced. It  may  once  have  been  necessary,  but  if  so,  the  necessity  for  it  has 
passed  away  with  the  change  in  the  state  of  society,  and  all  that  is  practi- 
cally useful  in  its  provisions,  at  the  present  day,  might  perhaps  be  attained, 
by  providing  that  promises  for  the  debt  of  another,  in  consideration  merely 
of  forbearance  to  bring  suit,  should  be  invalid  unless  reduced  to  writing. 

H. 


PRICE    V.     THE     EARL    OF    TORRINGTON.  333 


PRICE    V.    THE    EARL    OF    TOR-      [n39] 
R I N  G  T  0  N. 


TRIN.— 2  ANNE.— CORAM  HOLT,  C.  J.,  AT  GUILDHALL, 
[REPORTED  SALKELD,  285.] 

In  an  action  for  Beer  sold  and  delivered,  in  order  to  prove  the  delivery,  a  book 
was  put  in,  containing  an  account  of  the  Beer  delivered  by  the  plaintiff's  dray- 
men, and  which  it  was  the  duty  of  the  draymen  to  sign  daily.  The  drayman 
who  signed  the  account  of  Beer  delivered  to  the  defendant  being  dead,  the  book 
was  admitted  in  evidence  on  proof  of  his  handwriting,* 

The  plaintiff  being  a  brewer,  brought  an  action  against  the  Earl  of  Tor- 
rington  for  beer  sold  and  delivered,  and  the  evidence  given  to  charge  the 
defendant  was,  that  the  usual  way  of  the  plaintiff's  dealing  was,  that  the 
draymen  came  every  night  to  the  clerk  of  the  brew-honse,  and  gave  him  an 
account  of  the  beer  they  had  delivered  out,  which  he  set  down  in  a  book 
kept  for  that  purpose,  to  which  the  draymen  set  their  names,  and  that  the 
drayman  was  dead,  but  that  this  was  his  hand  set  to  the  book ;  and  this 
was  held  good  evidence  of  a  delivery;  otherwise  of  the  shop-book  itself 
singly,  without  morcf 


The  books  supply  repeated  instances 
in  which  the  entries  of  a  deceased  per- 
son, contrary  to  his  own  interest,  have 
been,  after  his  death,  received  as  evi- 
dence of  the  facts  stated  by  him  in  those 
entries.  But  the  decision  in  the  princi- 
pal case  seems  hardly  to  range  itself 
within  that  class  of  authorities,  for,  as 
remarked  by  Mr.  Phillipps,  in  his  "Law 
of  Evidence,"  such  a  declaration  by  a 
tradesman's  servant  as  that  made  by 
the  drayman  in  Price  v.  Lord  Torring- 
ton,  is  clearly  distinguishable  from  en- 
tries in  the  book  of  a  receiver,  who,  by 
making  a  gratuitous  charge  against  him- 
self, knowingly  against  his  own  interest, 
and  without  any  equivalent,  repels  every 
supposition  of  fraud.  A  disposition  to 
commit  fraud  would  have  tempted  him 


to  suppress  altogether  the  fact  of  his 
having  received  any  thing,  or  to  misre- 
present the  amount  of  the  sum,  but  not 
to  mis-state  the  ground  or  *consi-  r^idoi 
deration  upon  v.'hich  it  was  re-  '■  -■ 
ceived  ;  that  is,  not  to  mis-state  the  only 
fact  sought  to  be  established  by  the  pro- 
posed evidence.  On  the  other  hand, 
the  declaration  of  the  tradesman's  ser- 
vant is  given  in  evidence  to  prove  the 
fact  of  delivery,  and  as  he  gives  the 
account  not  against  his  own  interest, 
which  is  some  security  for  the  truth  of 
the  statement  in  the  other  case,  the  pro- 
bability of  his  account  being  true  or 
false  is  neither  greater  nor  less  than  the 
probability  of  his  being  honest  or  dis- 
honest, which  is  nothing  more  than  may 
be  said  in  every  case  of  hearsay.     The 


I 


*  See  Higham  v.  Ridgway,  post,  vol.  ii.  183. 

t  Sal,  690,     lb,  283,     Mod,  Cases,  264.     2  Lord  Raym.  873, 


334 


smith's    leading    cases. 


circumstance  of  his  thoroby  acknow- 
ledging tiie  receipt  of  goods,  which,  it 
may  be  said,  would  be  evidence  in  an 
action  against  him,  seems  to  amount  to 
little  or  nothing.  It  was  the  least  he 
could  say.  To  have  said  nothing  at  all 
would,  as  he  must  have  known,  necessa- 
rily lead  to  inquiry. 

Price  V.  Lord  Torrington  falls  within 
the  class  of  cases  thus  described  by  Mr. 
Justice  Taunton.  "  A  minute  in  writing, 
made  at  the  time  when  the  fact  it  records 
took  place,  by  a  person  since  deceased, 
in  the  ordinary  course  of  his  business, 
corroborated  by  other  circumstances, 
which  render  it  probable  that  the  fact 
occurred,  is  admissible  in  evidence." 
Doe  V.  Turford,  3  B.  &  Ad.  898.  In  that 
case  a  landlord  instructed  B.  to  give  the 
defendant  notice  to  quit,  and  B.  commu- 
nicated it  to  his  partner  P.,  who,  having 
prepared  three  notices  to  quit,  two  ot 
them  to  be  served  on  other  persons,  and 
three  duplicates,  went  out,  returned  in 
the  evening,  and  delivered  to  B.  three 
duplicates,  one  of  which  was  a  duplicate 
of  the  notice  to  the  defendant  indorsed 
by  P.  It  was  proved  that  the  other  no- 
tices were  delivered  as  intended,  that 
the  defendant  had  afterwards  requested 
not  to  be  compelled  to  quit,  and  that  it 
was  the  invariable  practice  of  the  clerks 
of  B.  and  P.,  who  usually  served  the  no- 
tices to  quit,  to  indorse,  on  a  duplicate 
of  such  notice,  a  memorandum  of  the 
fact  and  time  of  service.  The  duplicate 
in  question  was  so  indorsed  ;  and  it  was 
admitted,  after  the  death  of  P.  to  prove 
the  service  of  tlie  third  notice  on  the 
defendant. 

The  former  cases  on  this  subject  will 
be  found  cited  and  discussed  in  Doe  v. 
Turford  ;  it  will  therefore  be  unneces- 
sary to  advert  to  them  at  length  in  this 
note.  See  Pitman  v.  Maddox,  2  Salk. 
690;  Hagedorn  v.  Reid,  3  Camp.  379; 
Champneys  v.  Peck,  1  Stark.  404 ; 
Pritt  V.  Fairclough,  3  Camp.  305,  et 
notas ;  {and  Regina  v.  Dukinfield,  11 
Q.  B.  678,  685. }  In  Poole  v.  Dicas,  1 
Bingh.  N.  C.  649,  a  bill  became  due  and 
was  left  with  a  notary  to  demand  pay- 
ment; M.  tiie  notary's  clerk  went  out, 
returned,  and,  in  one  of  the  notary's 
books  into  which  the  bill  had  been  pre- 
viously copied,  wrote  in  the  margin  no 
effects;  another  clerk  made  a  similar 
entry  in  anotlier  book  from  M.'s  dicta- 
tion ;  all  this  was  done  in  the  regular 
course  of  business:  the  court  held  that 
after  the  death  of  M.  the  entry  made  by 


him  was  admissible  to  prove  the  dis- 
honour of  the  bill.  "  We  think  it,"  said 
Tindal,  C.  J.,  "admissible,  on  the  ground 
that  it  was  an  entry  made  at  the  time  of 
the  transaction,  and  made  in  the  usual 
course  and  routine  of  business,  by  a  per- 
son who  had  no  interest  to  mis-state 
what  had  occurred." 

Mr.  J.  Parke,  in  delivering  his  judg- 
ment in  Doe  v.  Turford,  remarks  a  dis- 
tinction between  the  admissibility  of  an 
entry  of  this  description,  and  of  an  entry 
admitted  in  evidence  because  against 
the  interest  of  the  party  making  it.  "It 
is  to  be  observed,"  said  his  Lordship, 
"that  in  case  of  an  entry  falling  under 
the  rule  as  being  an  admission  against 
interest,  proof  of  the  handwriting  of  the 
party  and  his  death  is  enough  to  authorise 
its  reception ;  at  whatever  time  it  was 
made,  it  is  admissible.  But  in  the  other 
case,  it  is  essential  to  prove  that  it  was 
made  at  the  time  it  purports  to  bear 
date ;  it  must  be  a  contemporaneous 
entry."     3  B.  &  Ad.  898. 

An  entry  admissible  after  the  maker's 
death  because  made  in  the  course  of 
business  is,  however,  evidence  of  those 
things  only  which,  according  to  the 
course  of  that  business,  it  was  ihe  duty 
of  the  deceased  person  to  enter.  In 
Chambers  v.  Bernasconi,  1  Tyrwh.  342, 
4  Tyrwh.  531,  in  error,  a  distinction  was 
engrafted  upon  the  rule  laid  down  in 
Doe  v.  Turford.  In  that  case  it  became 
material  to  ascertain  the  place  at  which 
one  Chambers  had  been  arrested.  The 
under-sheriff  of  Middlesex  being  called, 
produced  the  writ,  and  stated  that  by  the 
course  of  his  office  the  bailiff  r^,^,-| 
^making  an  arrest  was  required  '-  ^ 
immediately  afterwards  to  transmit  to 
the  ofEce  a  memorandum  or  certificate  of 
the  arrest,  and  that  for  the  last  few  years 
an  account  of  the  place  where  the  arrest 
took  place  had  also  been  required  from 
him  ;  it  was  then  proved  that  the  bailiff 
who  arrested  Chambers  was  deceased, 
and  the  following  memorandum  in  his 
handwriting,  taken  from  the  files  of  the 
office,  was  tendered  in  evidence  to  prove 
the  place  where  he  made  the  arrest. 
"  9  November,  1825. 

"  I  arrested  A.  H.  Chambers  the  elder 
only  in  South  Molton  Street,  at  the  suit 
of  William  Brereton. 

"  Thomas  Wright." 

The  memorandum  was  held  by  the 
Court  of  E.xchequer  inadmissible  for  the 
purpose  for  which  *it  was  offer-  rjjci^i  -i 
ed,  and  afterwards  in  the  Ex-    ^  J 


PRICE    V.    THE    EARL     OF    TORRINQTON. 


335 


chequer  Chamber  whither  the  point  was 
carried  by  a  bill  of  exceptions.  "The 
ground,"  said  Lord  Denman,  C.  J.,  deliv- 
ering the  judgment  of  the  Exchequer 
Chamber,  "  on  which  the  Attorney- 
General  first  rested  his  argument  for  the 
plaintiff  in  error  was  not  much  relied  on 
by  him,  viz.,  that  the  certificate  was  an 
admission  against  the  interest  of  the 
party  making  it,  because  it  renders  him 
liable  for  the  body  arrested.  He  had 
recourse  to  a  much  broader  principle, 
and  laid  it  down  as  a  rule,  that  an  entry 
made  by  a  person  deceased,  in  the  course 
of  his  duty,  where  he  had  no  interest  in 
stating  an  untruth,  is  to  be  received  as 
proof  of  the  fact  stated  in  the  entry,  and 
of  every  circumstance  therein  described 
which  would  naturally  accompany  the 
fact  itself.  The  discussion  of  this  point 
involved  the  general  principles  of  evi- 
dence, and  a  long  list  of  cases  deter- 
mined by  judges  of  the  highest  autho- 
rity, from  that  of  Price  v.  Torrington, 
before  Holt,  C.  J.,  to  Doe  d.  Patteshall 
v.  Turford,  recently  decided  by  Lord 
Tenterden  in  the  Court  of  King's  Bench. 
After  carefully  considering,  however, 
all  that  was  urged,  we  do  not  find  it 
necessary,  and  therefore  we  think  it 
would  not  be  proper,  to  enter  upon  that 
extensive  argument;  for  as  all  the  terms 
of  the  legal  proposition  above  laid  down 
are  manifestly  essential  to  render  the 
certificate  admissible,  if  anyone  of  them 
fails  the  plaintiff  in  error  cannot  succeed  ; 
and  we  are  all  of  opinion  that  ivhatever 
effect  may  be  due  to  an  entry  made  iu 
the  course  of  any  office,  reporting  facts 
necessary  to  the  performance  of  a  duty, 
the  statement  of  other  circumstances, 
however  naturally  they  may  be  thought 
to  find  a  place  in  the  narrative,  is  no 
proof  of  those  circumstances.  Admit- 
ting then  for  the  sake  of  argument  that 
the  entry  tendered  was  evidence  of  the 
fact,  and  even  of  the  day  when  the  arrest 
was  made,  (both  which  facts  it  might  be 
necessary  for  the  officer  to  make  known 
to  his  principal,)  we  are  all  clearly  of 
opinion  that  it  is  not  admissible  to  prove 
in  what  particular  spot  within  the  baili- 
wick the  caption  took  place,  that  circum- 
stance being  merely  collateral  to  the 
duty  done."  [See  Lloyd  v.  Wait,  1 
Phih  6L] 

It  is  difBcult,  in  perusing  this  case, 
[Chambers  v.  Bernasconi,]  to  avoid  re- 
marking, that,  although  professing  to 
steer  wholly  clear  of  the  doctrine  pro- 
mulgated  in    Doe   v.    Turford,    it  still 


seems  hardly  reconcileable  in  its  facts 
with  that  decision;  for  it  was  proved  in 
Chambers  v.  Bernasconi,  and  is  indeed 
stated  in  the  judgment  of  the  L.  C.  J., 
that  the  course  of  the  office  of  the  Sheriff 
of  Middlesex  is  to  require  a  return  in 
writing  of  the  arrest,  and  of  the  place 
where  it  is  made,  under  the  hand  of  the 
officer  making  it.     Now  it  certainly,  in 
ordinary  parlance,  would  be  said  to  be 
the  officer's  duty  to   comply  with  the 
course  of  the  office  by  returning  the  place 
of  arrest,  had  he  refused  to  do  so  he  would 
probably  have  been  discharged.     And  it 
is  difficult  to  see  how  an  entry  which  he 
was  required  to  make,  and  had  not  the 
choice  of  omitting,  could  be  more  colla- 
teral to  his  duty  tlian  the  entry  of  the 
service  of  the  notice  to  quit  was  to  that 
of  the  person  making  it  in  Doe  v.  Tur- 
ford; and  it  seems  obvious  that  the  entry 
of  the  place  of  arrest  might  prove  of 
utility   to    the   officer's    employer,   the 
Sheriff;  since,  if  an  action  of  trespass 
were  brought  against  him  by  the  party 
arrested,  he  would,  in  order  to  his  de- 
fence, be  obliged  to  show  that  he  arrested 
him  within  the  county  :  so  that  a  know- 
ledge of  the  precise  spot  on  which  the 
caption  took  place  might  be  very  mate- 
rial and  useful  to  him.     But  whatever 
may  be  our  opinion  *as   to  the  r^i^oi 
possibility  of  reconciling  Cham-  '•        -• 
bers  v.  Bernasconi  with  Doe  v.  Turford, 
it  may  be  safely  stated,  that  the  former 
case  has  not  shaken  the  general  doctrine 
promulgated  in  the  latter,  since  the  at- 
tention of  the  Court  of  Common  Pleas 
was  drawn  to  both  in  Poole  v.  Dicas,  1 
Bingh.  N.  C.  649,  where  the  authority 
of  Doe  v.  Turford  was  expressly  recog- 
,  nised ;  and  Tindal,  C.  J.,  and  Park,  J., 
both  stated,  that  the  decision  in  Cham- 
bers v.  Bernasconi  turned  wholly  on  the 
circumstance  that  the  officer  had  gone 
beyond  the  sphere  of  his  duty  in  making 
an  entry  of  the  place  of  arrest.      See 
Baron  de  Rutzen  v.  Farr,  4  A.  &  E.  53; 
in  the  report  of  which  there  seems  to  be 
some  mistake.    See  also  iVlarks  v.  Lahee, 
3  Bingh.  N.  C.  420.     [Clark  v.  VVilmot, 

1  Younge  &  C,  N.  C.  53,  corrected  2 
id.  259  n. ;  Pickering  v.  Bishop  of  Ely, 

2  id.  219;  and  Lloyd  v.  Wait,  1  Phil. 
01.  In  Doe  d.  Graham  v.  Hawkins,  2 
Q.  B.  212,  the  account  admitted  was 
written  by  a  clerk  (still  living  and  not 
called)  of  the  deceased  officer,  and  it 
had  been  recognised  by  the  officer  as  his. 
In  Davis  v.  Lloyd,  1  Car.  &  M.  275,  it 
appeared  to  be  the  practice  of  the  Jews 


336 


smith's   leading   cases. 


that  circumcision  sliould  take  place  on 
the  eighth  day  after  tiie  birth,  and  that 
it  is  the  duty  of  tiie  Chief  Rabbi  to  per- 
form the  rite  and  to  make  an  entry  thereof 
in  a  book  kept  at  the  synagogue.  The 
death  of  the  Chief  Rabbi  being  proved, 
such  an  entry  was  offered  in  evidence 
to  siiow  the  ageof  a  Jew,  but  Lord  Den- 
man,  after  consulting  Patteson,  J.,  re- 
jected it,  probably  on  the  ground  that 
the  duty  of  the  Chief  Rabbi  did  not 
spring  from  any  relation  recognised  by 
law. 

In  Brain  v.  Preece,  11  M.  &  W.  773, 
it  was  the  course  of  business  for  H.,one 
of  the  workmen  at  a  coal-mine,  to  give 
notice  of  the  coals  sold,  to  the  foreman 
y.,  who,  not  being  able  to  write,  em- 
ployed another  man  to  enter  the  sales, 
and  the  entries  were  afterwards  read 
over  to  him.  H.  and  Y.  being  dead,  the 
entries  were  held  not  to  be  evidence,  ap- 


parently on  the  ground  that  they  were 
not  made  by  a  person  having  direct 
knowledge  of  the  facts  or  a  person  em- 
ployed by  him ;  and  Lord  Abinger,  C. 
B.,  observed  that,  "  as  regards  the  case 
of  Price  v.  Lord  Torrington,  it  is  better 
to  adhere  to  that  case  as  it  stands,  and 
not  to  give  any  extension  to  it."]  The 
declarations  of  a  deceased  witness  to  a 
deed  tending  to  show  that  he  was  con- 
cerned in  forging  it  are  inadmissible, 
Stobart  v.  Dryden,  1  Mee.  &  VVelsb. 
615;  but  in  that  case  it  was  not  argued 
that  they  were  declarations  against  in- 
terest, [nor  could  that  have  been  sucess- 
fully  argued  according  to  the  Sussex 
Peerage  case,  11  CI.  &.  Fin.  85.  For 
the  law  as  to  admissibility  of  statements 
against  the  interest  of  the  person  mak- 
ing them,  see  Highham  v.  Ridgvvay,  vol. 
IL  p.  183,  and  the  notes.]  {See  Doe  d. 
Padwick  v.  Skinner,  3  Exch.  84.} 


The  particular  point  in  Price  v.  Torrington  has  often  been  confirmed  in 
this  country ;  and  it  may  be  taken  as  the  settled  law  of  all  the  states,  that 
entries  made  in  the  usual  course  of  business  by  the  plaintiff's  clerk,  are 
admissible  in  evidence  after  his  death,  on  proof  of  his  handwriting.  Lewis 
V.  Norton,  1  Washington,  76;  Clarke  v.  Magruder  ct  al.,  2  Harris  &  John- 
son, 77;  Clemens  v.  Patton,  Donegan  &  Co.,  9  Porter,  289;  Everly  v. 
Bradford,  4  Alabama,  371 ;  &c. 

And  the  general  principle  in  Doe  v.  Turford,  as  distinct  from  the  prin- 
ciple of  entries  against  interest,  had  been  ascertained  and  established  in  this 
country  before  that  decision  was  made.  The  leading  case  is  Welsh  v. 
Barrett,  15  Massachusetts,  380,  decided  by  Chief  Justice  Parker  in  1819. 
It  was  assumpsit  on  a  promissory  note,  by  endorsee  against  endorser.  To 
prove  demand  and  notice,  the  book  of  a  deceased  messenger  of  the  bank 
where  the  note  had  been  left  for  collection,  was  offered.  The  cashier  proved 
it  to  be  the  book  which  the  messenger  had  kept  pursuant  to  the  regulations 
of  the  bank,  and  in  which  he  entered  his  doings  with  respect  to  notices  to 
the  makers  and  endorsers  of  notes  belonging  to  the  bank,  or  left  with  it  for 
collection.  The  by-laws  of  the  bank  made  it  part  of  his  duty  to  keep  such 
a  book,  and  he  had  taken  the  required  oath  faithfully  to  perform  his  duty. 
The  book  contained  entries  of  the  names  of  makers  and  endorsers  of  promis- 
sory notes,  and  certain  figures  and  memoranda,  which  the  cashier  testified 
were  in  the  handwriting  of  the  deceased  messenger,  and  were  the  minutes 
made  by  him  of  his  doings  with  respect  to  such  notes.  The  question  was 
argued  at  length,  (  Wcbsier  against  the  admission  of  the  book)  :  Parker, 
C.  J.,  in  delivering  the  opinion  of  the  court  in  favour  of  the  book,  examines 
the  subject  and  the  cases  with  great  ability,  and  says ;  "  The  principle 
seems  to  be  founded  in  good  sense,  and  public  convenience.  What  a  man 
has  said  when  not  under  oath,  may  not  in  general  be  given  in  evidence, 


PRICE    V.     THE     EARL     OP     TORRINGTON.  337 

when  he  is  dead ;  because  his  words  may  be  misconstrued  and  misrecol- 
lected ;  as  well  as  because  it  cannot  be  known  that  he  was  under  any 
strong  motive  to  declare  the  truth.  But  what  a  man  has  actually  done  and 
committed  to  writing,  when  under  obligation  to  do  the  act,  it  being  in  the 
course  of  the  business  he  has  undertaken,  and  he  being  dead,  there  seems 
to  be  no  danger  in  submitting  to  the  jury."  He  added,  that  the  practice 
might  safely  be  extended  to  the  proof  of  entries  made  by  a  merchant's  clerk, 
after  his  death,  in  a  case  proper  for  the  admission  of  a  merchant's  books. 
This  case  was  confirmed  and  acted  upon  in  Ilalliday  v.  Martinet,  20  John- 
son, 168.  This,  also,  was  assumpsit  by  endorsee  of  a  promissory  note 
against  endorser ;  in  which,  due  diligence  in  making  demand  and  giving 
notice  was  to  be  proved.  The  protest,  and  register  of  protests,  of  a  deceased 
notary,  proved  by  his  clerk,  the  register  containing  memoranda  of  his  acts 
respecting  notices,  were  held  admissible.  The  due  diligence  in  making 
demand  seems  to  have  been  established  by  these  and  the  custom  of  the 
office  ;  and  though  the  fact  did  not  amount  to  due  diligence  in  giving  notice, 
yet  the  register  of  protests  was  deemed  evidence  of  the  facts  stated  in  it : 
and  the  court,  per  Woodworth,  C.  J.,  said,  "  If  the  notary  had  stated,  that 
the  endorsee  could  not  be  found,  as  he  has  done  with  respect  to  the  maker, 
he  would  have  made  out  sufficient  to  entitle  the  plaintifi"  to  recover."  It 
may  be  proper  to  observe,  that,  this  being  a  promissory  note,  the  protest  had 
no  other  value  as  evidence,  than  an  entry  or  memorandum.  The  principle 
of  this  case  has  been  repeatedly  confirmed  in  New  York ;  as,  in  Hart  et  al. 
V.  Wilson  et  al.,  2  Wendell,  513  ;  Butler  v.  Wright,  id.  369 ;  Nichols  v. 
Goldsmith,  7  id.  160;  Merrill  et  al.  v.  The  Ithaca  and  Owego  R.  R.  Co., 
16  id.  587;  and  it  is  now  considered  a  settled  rule,  ''that  entries  and  mem- 
oranda made  in  the  usual  course  of  business,  by  notaries,  clerks,  and  other 
persons,  may  be  received  in  evidence  after  the  death  of  the  person  who 
made  them;"  Brewster  v.  Doane  and  another,  2  Hill's  New  York  Rep. 
537 ;  Sheldon  v.  Bentham,  4  id.  129.  See,  also,  to  the  same  effect,  Wil- 
liamson V.  Doe,  7  Blackford,  12,  18 ;  Spann  v.  Baltzell,  1  Florida,  302, 
321;  Bank  of  Tennessee  v.  Smith,  9  B.  Monroe,  609,  611. 

The  case  of  Welsh  v.  Barrett  is  likewise  confirmed  and  acted  upon  in 
Nicholls  V.  Webb,  8  Wheaton,  326 ;  an  action  of  the  same  kind  on  a  pro- 
missory note.  The  protest  by  the  deceased  notary,  and  an  extract  from  his 
book  which  was  duly  authenticated  as  a  regular  record  of  his  notarial  acts, 
were  offered  in  evidence  to  prove  demand  and  notice;  the  book  contained  a 
copy  of  the  note,  and  in  the  margin  this  memorandum,  "  Endorser  duly 
notified  in  writing  19th  July,  1819,  the  last  day  of  grace  being  Sunday  the 
18th ;"  which  was  signed  by  the  notary.  The  opinion  of  the  court,  in 
favour  of  the  evidence,  was  given  by  Story,  J. ;  he  says,  that  being  a  pro- 
missory note  in  which  the  action  of  a  notary  was  not  necessary,  the  protest 
itself  was  not  evidence  in  chief  of  the  fact  of  demand  ;  but  that  from  the 
usage  in  employing  notaries  it  may  be  inferred  that  "  the  protesting  of  notes, 
if  not  strictly  the  duty  of  the  notary,  was  iu  conformity  to  general  practice, 
and  was  an  employment  in  which  he  was  usually  engaged :"  the  subject 
is  then  examined,  and  the  case  distinguished  from  that  class  of  cases  in 
which  the  entry  charges  the  person  making  it;  the  decision  in  Welsh  v. 
Barrett  is  cited,  and  the  judge  concludes;  "  We  are  entirely  satisfied  with 
that  decision,  and  think  it  is  founded  in  good  sense  and  public  convenience. 
Vol.  l— 22 


338  smith's   leading   cases. 

"We  think  it  a  safe  principle,  that  memorandums  made  by  a  person  in  the 
ordinary  course  of  his  business,  of  acts  or  matters  which  his  duty  in  such 
business  requires  hiiu  to  do  for  others,  in  case  of  his  death,  are  admissible 
evidence  of  the  acts  and  matters  so  done.  *  *  *  A  fortiori,  we  think 
the  acts  of  a  public  officer,  like  a  notary  public,  admissible,  although  they 
may  not  be  strictly  official,  if  they  are  according  to  the  customary  business 
of  his  office,  since  he  acts  as  a  sworn  officer,  and  is  clothed  with  public 
authority  and  confidence." 

In  Delaware,  in  The  Bank  of  Wilmington  and  Brandy  wine  v.  Bradun, 
cited  in  1  Harrington,  14,  the  register  of  a  deceased  notary  was  decided  to 
be  competent  to  prove  notice,  &c.  In  Bank  of  Wilmington  and  Brandy- 
wine  V.  Cooper's  Adm'r,  id.  10,  there  is  a  valuable  remark  of  Chief  Justice 
Clayton,  which  detects  an  important  error  on  a  collateral  point  in  Nicholls 
V.  Webb  :  "  I  must  be  permitted,"  he  says,  "  to  say  a  word  as  to  the  case 
of  Nicholls  V.  Webb,  so  far  as  it  is  considered  an  authority  to  establish  the 
point  that  the  entry  on  the  record  of  the  deceased  notary's  book,  '  that  due 
notice  was  given  to  the  endorser,'  is  to  be  taken  as  proof  that  legal  notice 
was  given.  The  book  I  would  hold  as  evidence  of  all  the  facts  it  gives  as 
to  the  time,  manner,  &c.,  of  notice,  by  reason  of  his  death.  If  we  go  fur- 
ther, we  make  the  notary  the  judge  of  what  is  le[/al  notice  to  fix  the 
endorser.  Now  what  is  legal  notice  is  a  question  of  law  for  the  court,  and 
not  for  the  notary.  He  should  note  the  facts,  when  he  gave  notice ;  to 
whom;  the  mode,  &c.  These  are  facts,  and  his  record  would  be  sufficient 
to  prove  them ;  but  the  conclusion  of  law,  whether  it  is  due  notice  or  not,  is 
for  us  to  decide,  and  not  him.  If  the  case  in  Wheaton  goes  as  far  as  it 
appears  it  did  go,  it  has  not  my  approbation  as  sound  law."  And  this  is 
confirmed  in  Spann  v.  Baltzell,  1  Florida,  302,  323.  In  Hatfield  v.  Perry, 
4  Harrington,  4G3,  where  Nichols  v.  Webb  is  again  approved,  it  is  decided 
that  the  notary's  certificate  is  not  admissible. 

In  Pennsylvania,  the  cases  of  Welsh  v.  Barrett  and  Nicholls  v.  Webb, 
ai*e  recognized,  and  the  principle  regarded  as  a  settled  one,  in  Philadelphia 
Bank  V.  Officer  and  another,  12  Sergeant  &  Piawle,  49 ;  Farmers'  Bank  of 
Lancaster  v.  Whitehill,  16  id.  89 ;  and  see  Henry  v.  Oves,  4  Watts,  46. 

In  Mississippi,  these  cases  have  been  adopted,  and  it  is  there  considered 
to  be  a  settled  principle  of  the  common  law,  that  "  a  memorandum  of  one 
who  knew  the  fact  had  no  interest  to  falsify  it,  and  which  was  made  by  him 
as  a  public  officer  in  the  regular  course  of  his  business  as  such,"  he  being 
dead,  is  admissible  evidence ;  and  accordingly  the  written  entry  or  memo- 
randum of  a  deceased  notary,  as  to  demand  and  notice,  in  case  of  promissory 
notes,  is  received.  Ogden  v.  Glidewell  et  al.,  5  Howard,  179 ;  Bodley  v. 
Scarborough  et  al.  id.  729. 

In  Maine,  a  more  interesting  case  occurs  :  in  The  Inhabitants  of  Augusta 
V.  The  Inhabitants  of  Windsor,  19  Maine,  1  Appleton,  317,  in  assumpsit  for 
charges  incurred  by  plaiutifi's  on  account  of  a  pauper  properly  chargeable  on 
defendants,  it  became  important  to  show  at  ichat  time  one  Temple  Linscott  had 
had  his  leg  brohcn  ;  and  for  the  purpose  of  fixing  the  date,  the  plaintiffs  offered 
in  evidence,  a  day-book  of  Dr.  Neal  of  Gardiner,  containing  two  charges  against 
Temple  Linscott,  one  dated  Sept.  28,  1821,  and  the  other,  Sept.  29,  of  the 
same  year,  for  reducing  a  fracture  in  his  leg  and  for  medical  attendance.    It 


PRICE     V.     THE    EARL    OP     TORRINGTON.  339 

was  further  proved  that  Dr.  Neal  attended  and  set  Linscott's  leg ;  that  he 
died  in  1839 ;  that  he  was  a  regukrly  practising  physician  in  1820  and 
1821 ;  and  that  the  book  introduced  was  in  his  handwriting.  The  court, 
per  Shepley,  J.,  adopted  the  principle  of  Doe  v.  Turford,  and  Nicholls  v. 
Webb ;  and  on  that  ground  decided  that  the  evidence  was  admissible.  And 
more  recently  it  has  been  held  in  that  state,  that  contemporaneous  entries 
by  third  persons  in  their  own  books  in  the  ordinary  course  of  business, 
where  the  matter  is  within  their  knowledge  and  there  is  no  apparent  motive 
to  pervert  the  fact,  are  evidence;  Dow  v.  Sawyer,  29  Maine,  118. 

In  Alabama,  it  is  declared  to  be  a  "  principle  now  too  firmly  settled  to 
require  argument  or  illustration,  that  books  of  accounts  kept  by  a  deceased 
clerk,  and  other  entries  or  memoranda  made  in  the  course  of  business  or 
duty,  by  any  one  who  would  at  the  time  have  been  a  competent  witness  to 
the  fact  which  he  registers,  are  admissible  evidence  :"  and  moreover,  that  if 
the  book  containing  the  original  entry  has  been  destroyed  or  lost,  a  copy, 
proved  by  the  oath  of  a  person  who  copied  it,  is  admissible  ;  and  accordingly 
a  sworn  copy,  from  the  book  of  a  deceased  warehouseman  and  weigher,  of 
an  entry  of  the  weight  of  some  bales  of  cotton,  the  book  itself  having  been 
destroyed  in  a  fire,  was  decided  to  be  admissible  in  a  suit  between  third 
parties;  Batre  v.  Simpson,  4  Alabama,  30G,  312;  Brown,  use,  &c.  v. 
Steele  et  al.  Ex'r,  14  Alabama,  63. 

In  Connecticut,  in  Livingston  v,  Tyler,  14  Connecticut,  494,  499, 
entries  by  a  deceased  clerk  of  the  defendant,  of  the  quantity  of  bark  deli- 
vered at  the  defendant's  tannery,  in  a  case  where  the  plaintiff  had  kept  no 
account,  and  was  therefore  to  be  considered  as  having  acquiesced  in  the 
account's  being  kept  by  the  clerk,  in  the  character,  to  some  extent,  of  the 
agent  of  both  parties,  were  decided  to  be  admissible  evidence  of  the  quantity 
delivered  ;  within  the  principle,  that  private,  original  entries  by  third  per- 
sons, are  receivable  when  they  have  been  made  in  the  usual  course  of  busi- 
ness, by  a  person  now  incapable  of  giving  testimony,  who  had  knowledge 
of  the  fjict,  and  had  no  motive  to  misrepresent  it,  and  more  especially  when 
made  with  the  presumed  assent  of  the  person  to  be  charged  with  them. 

In  Nourse  and  Wife  v.  M'Cay  and  another,  2  Bawle,  70,  to  show  that  a 
deed  was  a  forgery,  the  account-book  of  a  deceased  magistrate  showing 
charges  for  acknowledgments  of  three  other  deeds  on  the  same  day,  and  no 
charge  for  the  acknowledgment  of  this,  was  decided  to  be  admissible.  It  is 
obvious  that  the  ground  on  which  entries  in  the  course  of  business  are 
admitted,  is  that  as  res  gesta)  they  afford  a  presumption  as  to  other  facts  : 
and  an  omission  in  a  course  of  usual  entry,  is  often  as  strong  a  fact  as  an 
entry. 

Taking  these  American  cases  together,  the  principle  derivable  from  them 
is,  that  entries  made  in  the  regular  course  of  the  person's  business  or  employ- 
ment, though  he  was  not  a  public  ofhcer,  and  though  it  was  not  his  duty  to 
make  the  entries,  arc  admissible  evidence  after  his  death. 

The  general  rule  is  that  to  render  the  entry  admissible,  the  person  who 
made  it  must  be  dead.  This  is  strictly  adhered  to  in  New  York  and  Ala- 
bama; and  absence  from  the  state  permanent  or  temporary,  is  not  suflTicient; 
in  such  case,  the  person  must  be  produced,  or  his  deposition  taken.  Brew- 
ster V.  Doane  &  another,  2  Hill's  New  York  Reports,  537,  where  the  New 


340  smith's   leading   oases. 

York  cases  are  cited ;  Moore  v.  Andrews  and  Brothers,  5  Porter,  107.  lo 
South  Carolina,  the  handwriting  of  a  clerk  may  be  proved  if  he  is  out  of  the 
state,  Elms  v.  Chevis,  2  M'Cord,  349 ;  but  not  if  he  is  wfthin  it.  Tunno  v. 
Rogers  and  M'Bride,  1  Bay,  480.  In  Pennsylvania,  it  is  a  settled  general 
principle,  "  that  absence  from  the  state,  as  far  as  it  affects  the  admissibility 
of  secondary  evidence,  has  the  same  effect  as  the  death  of  the  witness." 
Alton  V.  Bcrghans,  8  Watts,  77  :  and  the  admissibility  of  entries  by  a  clerk 
who  is  out  of  the  state  or  the  jurisdiction  of  the  court,  upon  proof  of  his 
writing,  is  abundantly  settled  j  Sterrett  v.  Bull,  1  Binney,  234,  237 ;  Grouse 
and  another  v.  Miller,  10  Sergeant  and  Rawle,  155  ;  but  as  a  subpcena  of  a 
county  court  runs  through  the  whole  state,  it  is  not  enough  that  he  is  in  a 
distant  county.  Hay  v.  Kramer,  2  Watts  &  Sergeant,  137 ;  Philadelphia 
Bank  v.  Officer,  12  Sergeant  &  Rawle,  49.  In  Massachusetts,  insanity  has 
been  held  to  be  equivalent  to  death.  Union  Bank  v.  Knapp,  3  Pickering, 
96 ;  and  in  case  of  auditing  a  guardian's  account  where  the  referee  had 
adopted  the  principle  of  admitting  receipts  as  evidence  of  payment,  where 
the  receiver  was  dead  or  out  of  the  state,  it  was  decided  not  to  be  ground 
of  objection. 

The  principle  of  Doe  v.  Turford  is  therefore  to  be  considered  as  well  set- 
tled in  this  country.  But  the  American  cases  appear  to  establish  another 
principle,  which  is  derived  directly  out  of  the  former,  and  is  in  fact  but  a 
more  extended  application  of  it ;  viz.  That  where  original  entries  have  been 
made  in  the  usual  course  of  business,  and  are  authenticated  as  such  by  the 
oath  of  the  person  who  made  them,  though  he  remembers  and  can  testify 
nothing  about  the  facts  recorded  in  the  entries,  such  entries  thus  verified  by 
the  oath  of  the  person  who  make  them,  are  admissible,  primary  evidence  of 
those  facts,  during  his  life ;  and  the  accuracy  of  this  view  is  confirmed  in 
Spann  v.  Baltzell,  1  Florida,  302,  321. 

The  cases  involving  this  principle  are  to  be  distinguished  from  those 
which  turn  upon  a  witness's  being  allowed  to  refresh  his  memory  by  refer- 
ing  to  memoranda  or  entries.  Under  the  notion  of  refreshing  the  memory 
by  looking  at  papers,  there  are  two  kinds  of  practice  :  1.  Where  the  witness 
by  referring  to  the  paper,  has  his  memory  actually  revived  and  restored,  so 
that  he  swears  to  an  actual  recollection  of  the  fact;  and  in  this  case,  the 
paper  thus  used  may  be  one  made  after  the  transaction,  may  be  a  copy,  and 
need  not  be  produced  in  court.  2.  Where  the  witness  after  referring  to  the 
paper  undertakes  to  swear  positively  to  the  fact;  yet  not  because  he  remem- 
bers it,  but  because  of  the  confidence  he  has  in  the  paper ;  and,  here,  the 
paper  must  be  produced  to  the  court,  must  be  an  original,  and  made  about 
the  time  of  the  occurrence.  See  O'Neale  v.  Walton,  1  Richardson,  234 ; 
and  Bank  of  Tennessee  v.  Cowan  et  als.  7  Humphreys,  70.  In  illustration 
of  the  extent  to  which  this  practice  is  allowed  in  England,  and  for  proof 
that  it  is  the  oath  of  the  witness,  and  not  the  paper,  which  in  such  cases  is 
the  evidence,  see  the  case  of  Maugham  v.  Hubbard  aud  Robinson,  8  Barne- 
wall  &  Cresswell,  14.  See  Withers  v.  Atkinson,  1  Watts,  236,  244  .  The 
American  cases  require  that  the  oath  of  the  witness  from  his  paper  in  the 
second  case,  should  be  positive  to  the  truth  of  the  facts. 

The  distinctive  characteristic  of  both  these  latter  classes  of  cases,  is,  that 
in  both  of  them,  the  oath  of  the  party  is  the  primary,  substantive  evidence 
relied  on ;  in  the  former  of  them,  that  oath  being  grounded  on  an  actual 


PRICE    V.     THE     EARL    OF     TORRINGTON.  341 

recollection,  the  means  that  have  been  used  to  stimulate  memory  arc  merely 
matter  of  observation  to  the  jury ;  in  the  latter,  it  is  still  the  oath  alone  that 
is  the  evidence,  but  being  grounded  wholly  on  the  verity  of  a  written  mem- 
orandum, the  court,  to  judge  of  the  credibility  of  the  oath  and  the  justness  of 
the  witness's  reliance,  will  have  the  paper  produced  for  inspection,  and  will 
require  it  to  be  an  original,  and  contemporary  memorandum. 

This  appears  to  be  the  limit  and  legal  signification  of  refreshing  memory ; 
and  this  practice  differs  from  the  principle  above  stated,  as  being  involved  in 
the  American  decisions,  in  this  respect ;  that  in  one  case  the  oath  is  the 
primary  evidence,  and  this  oath  is  affected  as  to  its  credibility  by  the  nature 
and  character  of  the  memoranda  connected  with  it ;  in  the  other,  the  entries 
are  the  evidence  that  goes  to  the  jury,  and  the  oath  is  only  to  verify  them 
as  being  original  and  made  in  the  course  of  business.  The  evidence  in  one 
case,  is  the  direct  testimony  of  a  witness ;  in  the  other,  it  is  the  presumption 
derived  from  the  contemporary  entry  as  part  of  the  res  gesta. 

It  has  been  attempted  to  carry  even  still  further  this  principle  of  receiving 
entries  in  evidence,  and  to  admit  any  private  memorandum  made  at  the  time 
for  the  purpose  of  perpetuating  evidence  of  the  fact,  if  verified  to  be  such  by 
the  oath  of  the  person  who  made  it;  though  such  person  can  state  nothing 
about  the  fact.     There  is  a  powerful  argument  of  Gibson,  J.,  in  Smith  v. 
Lane,  12  Sergeant  &  Rawle,  84,  in  favour  of  this  more  extended  admission; 
which  however,  is  but  an  extra-judicial  opinion  of  that  judge  alone,  in  favour 
of  what  he  admits  to  be  an  innovation.     See  also  Heart  v.  Hummel,  3  Barr, 
414.     The  acute,  and  very  profound  and  learned  author  of  the  "  Treatise  on 
the  Law  of  Evidence"  appears  to  regard  this  practice  settled  in  some  of  the 
states;   "The  American  courts  have  sometimes  carried  the  rule  farther  than 
it  has  been  carried  in  England,  by  admitting  the  writing  itself  to  go  in  evi- 
dence to  the  jury  in  all  cases,  where  it  was  made  by  the  witness  at  the  time 
of  the  fact,  for  the  purpose  of  preserving  the  memory  of  it,  but,  at  the  time 
of  testifying,  he  can  recollect  nothing  further  than  that  he  had  accurately 
reduced  the  whole  transaction  to  writing."      Greenleaf  on  Evidence,  484,  n. 
In  Merrill  v.  The  Ithaca  and  Owego  R.  R.  Co.  16  Wendell,  587,  there  is  a 
long  extra-judicial  argument  by  Cowen,  J.,  plainly  in  favour  of  admitting 
such  entries  without  any  distinction  between  private  memoranda  and  entries 
in  the  course  of  business.      After  extracting  the  case  of  The  State  v.  Rawls, 
2  Nott  &  M'Cord,  334,  a  case  which,  as  will  presently  be  shown,  is  misun- 
derstood by  him,  he  proceeds  as  follows :  "  A  great  variety  of  American 
cases  have  arisen  where  the  witness,  having  made  the  entry  or  memorandum, 
could  swear  to  his  belief  of  its  truth,  but  had   entirely  forgotten  the  facts 
which  he  recorded,  in  which  the  paper  thus  attested  has  been  received  and 
read  in  evidence  to  a  jury.     A  memorandum  in  respect  to  a  gambling  trans- 
action was  so  received  against  a  criminal.     The  State  v.  Rawls,  before  cited. 
*  *  *  So  the  notes  of  evidence  by  counsel  were  received,  though  he  could 
not  remember  the  facts.     Rogers  v.  Burton,  Peck,  108,  109,  116;   Clark 
V.  Vorce,  15  Wendell,  193.     The  entry  of  a  bank  clerk,  who  had  forgotten 
the  fact,  Farmers  and  Mechanics  Bank  v.  Boraef,  1  Rawle,  152  ;  «f  a  no- 
tary's clerk,  who  had  forgotten  the  fact  he  had  entered  of  notice  to  an  en- 
dorser, Haig  V.  Newton,  1  Rep.  Const.  Court,  423-4  ;  of  a  town  clerk,  who 
had  forgotten  his  entries  of  charges  for  penalties.  Corporation  of  Columbia 
V.  Harrison,  2  id.  213 ;  of  a  notary,  entering  a  notice  which  he  had  forgot- 


342  smith's   leading  cases. 

ten,  Bullard  v.  Wilson,  5  Mart.  Lou.  Rep.  N.  S.  19G,  with  many  others  to 
the  same  effect.  *  *  The  result  is  that  original  entries,  attested  by  the 
man  who  makes  them,  may  be  read  to  the  jury,  though  he  remember  no- 
thing of  the  facts  which  they  record." 

But  with  deference  to  these  learned  writers,  it  is  believed  that  the  Ame- 
rican cases  have  not  gone  to  that  extent,  and  that  an  examination  of  the 
cases  cited  by  Cowen,  J.,  and  of  others,  will  show  that  no  entries  have  ever 
been  admitted  as  evidence,  attested  by  the  person  who  made  them,  except 
entries,  contemporaneous  with  the  fact  and  made  in  the  usual  and  regular 
course  of  business  ;  other  entries  may  be  used  to  refresh  the  memory,  ac- 
cording to  the  distinction  above-mentioned,  but  are  not  themselves  admissi- 
ble in  evidence.  The  true  test,  as  established  in  this  country,  of  the  admis- 
sibility of  an  entry  verified  by  the  oath  of  the  person  who  made  it,  appears 
to  be  this :  entries,  such  as  would  have  been  admissible,  after  the  death  of 
the  maker  of  them,  on  proof  of  his  handwriting,  are  competent  evidence  in 
his  lifetime  when  authenticated  by  his  oath ;  and  no  other  entries  are.  It 
is  but  an  extension  of  the  principle  on  which  the  entries  of  a  deceased  per- 
son are  admitted ;  and  it  is  a  reasonable  and  safe  extension. 

The  general  rule  is  that  hearsay,  (meaning  entries,  as  well  as  declara- 
tions, of  a  third  person)  is  no  evidence  :  the  cases  of  Doe  v.  Turford,  &c., 
ascertain  that  original  entries  in  the  course  of  business,  &c.,  are  not  hear- 
say, but  are  evidence  ;  they  partake  of  the  nature  of  legal  evidence  :  for,  if 
such  entries  were  mere  hearsay,  and  did  not  possess  the  nature  of  evidence, 
the  death  of  the  person  who  made  them  could  not  render  them  evidence. 
Seeing  then  that  such  entries  are  evidence,  the  only  reason  why  they  are 
not  admissible,  during  the  life  of  the  person,  is,  that  they  are  secondary 
evidence  :  but  if  the  person  is  called,  and  his  memory  is  a  blank  on  the 
subject,  it  would  seem  that  the  way  is  paved  for  the  admission  of  secondary 
evidence,  as  much  as  if  the  person  were  dead ;  and  he  may  then  authenti- 
cate his  entries.  But  a  private  memorandum  is  mere  hearsay  :  it  could  not 
be  admitted  as  evidence  after  the  death  of  the  person  who  made  it,  although 
it  should  be  authenticated  as  an  entry  made  by  the  deceased,  according  to 
his  belief  of  the  truth,  and  for  the  purpose  of  preserving  a  recollection  of 
the  facts  as  they  were,  &c. :  and  if  it  be  inadmissible  and  not  evidence,  after 
his  death,  when  authenticated  by  others,  it  cannot  become  evidence,  by  being 
authenticated  by  himself:  the  mode  of  verifying  it,  cannot  aiFect  its  nature 
and  legal  operation. 

An  examination  of  the  cases  will  show,  1,  that  the  original  entries,  made 
in  the  regular  course  of  business,  are  admissible,  when  authenticated  by  the 
person  who  made  them ;  and,  2,  that  no  other  kind  of  entries  are. 

1.  That  entries  such  as  would  be  admissible  after  the  death  of  the  per- 
son, upon  proof  of  his  handwriting,  may  be  received  during  his  lifetime,  if 
authenticated  by  his  oath,  appears  to  be  recognised  in  the  following  cases. 
In  the  Farmers  and  Mechanics  Bank  v.  Boraef,  1  Eawle,  152,  the  bank, 
for  the  purpose  of  showing  the  amount  of  a  deposit  made  by  Boraef,  offered 
in  evidence  an  entry  of  this  deposit,  made  at  the  time  in  the  book  of  the 
bank,  supported  by  the  oath  of  the  clerk  who  received  the  deposit,  and  made 
the  entry ;  the  court  below  rejected  the  book,  but  admitted  the  witness ; 
the  witness,  however,  knowing  nothing  but  from  the  entry,  could  not,  with- 
out it,  undertake  to  swear  at  all;  the  Supreme  Court  decided  that  the  book 


PRICE    "V.    THE    EARL    OF    TORRINGTON.  343 

might  go,  with  the  clerk's  testimony,  to  the  jury,  "as  contaiuing  one  of  the 
entries  made  by  him  at  the  time,  with  his  explanations,  if  he  had  any  to 
offer."  "It  is  assumed,"  say  the  court,  "that  the  clerk  was  able  to  swear 
that  his  entry  in  the  book  was  true,  to  the  best  of  his  knowledge  and  belief; 
otherwise,  most  clearly,  the  book  is  not  evidence  for  any  purpose."  Now 
it  is  very  evident,  from  the  case  of  Union  Bank  v.  Knapp,  3  Pickering,  96, 
that  this  bank-book  would  have  been  evidence  in  such  a  case,  and  for  such 
a  purpose,  after  the  death  of  the  clerk,  upon  proof  of  his  handwriting.  The 
case  therefore  appears  to  go  upon  the  principle  above-mentioned  j  certainly 
it  does  not  go  beyond  it;  see  Oliver  v.  Phelps,  1  Zabriskie,  598,  613.  See 
Henry  v.  Oves,  4  Watts,  46.— Bullard  v.  Wilson,  5  Martin,  N.  S.  196,  (3 
Condensed  Louis.  505,)  seems  to  be  much  the  same  in  principle;  to  prove 
notice,  the  court  held  that  "  the  parish  judge's  memorandums  of  his  having 
given  the  protest  to  the  defendant  in  person,  was  on  the  back  of  the  protest, 
and  he  deposed  he  had  no  recollection  of  giving  it,  but  he  had  no  doubt  of 
his  having  given  it,  as  he  never  made  such  a  memorandum  without  having 
the  notice."  Here  the  entry,  made  according  to  the  course  of  the  witnesses's 
business,  was  the  evidence ;  and  it  would  have  been  competent  after  his 
death.  It  appears  to  be  an  authority  for  receiving  such  entries  :  at  all 
events,  it  is  not  authority  for  admitting  any  other  kind  of  entries.  In  New 
York,  the  admissibility  of  such  entries  is  settled;  and  notwithstanding  that 
the  distinction  between  private  entries,  and  such  as  are  made  in  the  course 
of  business,  was  confused  or  doubted  in  Merrill  v.  Ithaca,  &c.,  it  is  expressly 
recognised  in  the  recent  case  of  Bank  of  Monroe  v.  Culver,  2  Hill's  N.  Y. 
532.  This  was  an  action  of  assumpsit  on  a  note;  the  defence  was  usury, 
to  rebut  which,  the  plaintiffs  offered  the  cashier  to  prove  how  the  note  came 
to  the  bank,  and  was  paid ;  the  offer  was  to  prove  this  "  from  memoranda 
and  entries  in  the  handwriting  of  the  witness,  made  at  the  time  the  transac- 
tion to  which  they  refer,  occurred,  and  while  he  was  cashier,  and  had  charge 
of  the  books  and  correspondence  of  the  bank;  which  memoranda  and  entries 
the  witness  would  swear  he  believed  were  truly  and  correctly  made;  although, 
independent  of  such  memoranda  and  entries,  the  witness  had  no  recollection 
of  the  facts,  and  even  after  having  his  memory  refreshed  by  their  examina- 
tion, he  could  not  testify  to  the  facts,  independent  of  the  entries  and  memo- 
randa." The  Supreme  Court,  per  Bronson,  J.,  after  observing  that  the 
entries  and  memoranda  were  made  in  the  usual  course  of  business,  and  were 
verified  in  the  most  ample  manner  by  the  witness  who  made,  and  whose  duty 
it  was  to  make  them,  said,  "The  question  is,  whether  memoranda  and  entries, 
thus  verified,  should  be  allowed  to  speak  for  themselves.  I  think  they 
should.  *  *  Lawrence  v.  Barker,  (see  infra,)  does  not  lay  down  a  different 
rule.  The  memorandum  in  that  case  was  not  made  in  the  usual  course  of 
business,  but  only  for  the  convenience  of  the  witness.  But  here,  the  me- 
moranda and  entries  were  made  in  the  usual  course  of  business,  and  as  a 
part  of  the  proper  employment  of  the  witness.  I  do  not  see  how  it  is  pos- 
sible to  doubt  that  such  evidence  ought  to  be  received."  In  Sickles  v. 
Mather,  20  Wendell,  72,  there  is  a  dictum  which  carries  the  rule  to  this 
extent,  and  not  further:  "A  clerk  can  connect  the  books  with  the  sales, 
(many  of  which  he  usually  makes  himself,)  and  his  original  entries,  (to  the 
general  accuracy  of  which  he  can  make  oath,)  become  themselves  evidence 
of  what  he  may  in  fact  have  furgotten."     And,  indeed,  from  the  language 


344  smith's   leading   case?. 

in  the  two  last  cases,  it  seems  rather  that  Merrill  v.  Ithaca,  &c.,  is  under- 
stood as  really  not  going  farther.  See,  also,  Bank  of  Tennessee  v.  Cowan 
et  als.,  7  Humphreys,  70;  and  Spann  v.  Baltzell,  1  Florida,  302,  323. 

2.  The  cases  which  decide  that  a  private  memorandum,  made  for  the  pur- 
pose of  preserving  a  knowledge  of  the  fact,  is  not  admissible,  though  authen- 
ticated by  the  person  who  made  it,  are  decisive.  In  Lawrence  v.  Barker,  5 
Wendell,  301,  a  witness  was  called  to  prove  a  conversation.  He  stated 
^'  that  he  was  present  at  such  conversation,  and  produced  a  memorandum  in 
his  own  handwriting,  made  at  the  time,  and  which  he  said  he  had  no  doubt 
contained  a  true  account  of  what  took  place ;  but  that  he  had  no  recollec- 
tion of  the  facts,  independent  of  the  paper.  The  judge  refused  to  allow 
the  paper  to  be  read,  or  the  witness  to  state  its  contents ;  but  told  him  he 
might  read  it  to  refresh  his  recollection.  The  witness  said  he  had  read  it, 
but  could  only  recollect  that  the  parties  were  together  in  his  presence,  con- 
versing on  the  subject;  that  he  had  no  doubt  that  he  put  down  precisely 
what  was  said ;  that  he  made  the  memorandum  at  the  moment,  but  had  no 
recollection  of  the  facts,  independent  of  the  paper.  The  judge  would  not 
allow  the  witness  to  state  the  contents  of  the  paper,  or  the  paper  to  be  read 
in  evidence  to  the  jury."  The  Supreme  Court,  per  Savage,  C.-  J.,  said, 
<'  The  rule  is  that  a  written  memorandum  may  be  referred  to  by  a  witness 
to  refresh  his  memory,  but  he  must  swear  to  the  truth  of  the  facts,  or  his 
statement  is  not  evidence.  It  is  not  sufficient  for  him  to  swear  that  he  made 
a  memorandum  which  he  believes  to  be  true,  and  that  he  relies  upon  it, 
without  any  present  recollection  of  the  facts.  This  is  the  extent  to  which 
the  witness  could  go.  The  judge,  therefore,  properly  refused  to  receive 
his  statement  as  evidence.  *  *  In  case  of  goods  sold  and  delivered,  a  mer- 
chant's books  are  evidence  to  a  certain  extent,  but  that  is  very  different  from 
a  memorandum  made  by  a  witness  for  his  own  convenience,  not  sanctioned 
by  the  parties,  and  where  no  necessity  exists,  requiring  the  admission  of 
such  a  paper,  as  is  frequently  the  case  in  respect  to  merchants'  books."  And 
this  case  is  approved  and  enforced  in  Green  v.  Brown,'  3  Barbour's  S.  Ct., 
120,  123,  where  it  is  declared  to  be  the  established  rule  in  that  State,  that 
a  witness  testifying,  after  inspecting  a  memorandum  in  court,  must  be  able, 
after  such  inspection,  distinctly  to  recollect  the  facts,  independent  of  the 
written  memorandum;  and  that  if  he  cannot  speak  from  his  recollection  of 
the  fact,  after  having  referred  to  his  notes  or  memorandum,  and  brought 
the  facts  fresh  into  his  mind  again,  the  memorandum  itself,  or  his  statement 
upon  the  faith  of  the  memorandum,  cannot  be  received.  The  same  point 
was  decided  in  Butler  v.  Benson,  1  Id.  528,  535,  where  the  testimony  of  a 
vritness,  founded  upon  his  signature  as  an  attesting  witness  to  a  will,  where 
he  had  no  recollection  of  the  facts,  was  rejected.  "The  rule  is  well  settled," 
said  the  court,  "that  the  witness  may  use  his  memorandum  to  refresh  his 
recollection.  But  it  is  not  evidence  to  go  to  the  jury,  even  though  he 
swears  he  thinks  it  correct.  He  may  refresh  his  memory,  and  then,  if  his 
recollection  recalls  the  transaction,  that  recollection  is  testimony  to  go  to 
the  jury.  He  must  be  conscious  of  the  reality  of  the  matters  he  swears  to, 
at  the  time  he  testifies;  and  it  is  not  sufficient  that  his  mind  recurs  to  the 
memorandum,  and  he  himself  believes  that  true.  A  contrary  doctrine 
would  introduce  a  new  species  of  written  evidence,  in  the  creation  and  pro- 
duction of  which,  the  parties  to  be  affected  had  no  part.     And  it  would 


PRICE    V.     THE     EARL     OT     TORRINGTON.  345 

effectually  preclude  all  inquiry  into  the  circumstances  of  the  transaction, 
except  what  a  witness,  perhaps  casually  present,  might  think  it  convenient 
or  important  to  note.  The  courts  of  South  Carolina  have,  perhaps,  gone  a 
little  further  (State  v.  Rawls,  2  N.  &  M.  331.)  But  in  this  State,  and  in 
England,  this  rule  of  evidence,  it  is  believed,  remains  unshaken,"  &c.  In 
Calvert,  &c.  v.  Fitzgerald,  &c.,  Littoll's  Selected  Cases,  (Kentucky)  38S, 
the  same  point  is  decided.  The  witness  being  asked  if  one  Stewart  had  not 
rented  the  place  under  an  adverse  patentee,  <'  answered,"  (says  Mills,  J., 
delivering  the  opinion  of  the  court,)  "  he  could  not  tell.  A  paper  signed 
by  himself  was  then  handed  to  him,  to  refresh  his  recollection.  The  paper 
was  dated  about  the  period  in  question,  and  purported  to  be  a  statement 
then  made  and  signed  by  the  witness,  detailing  transactions  relative  to  the 
renting  or  lease  aforesaid.  The  witness,  after  examining  the  paper,  stated, 
that  it  was  his  handwriting,  and  that  he  wrote  it,  and  he  had  no  doubt  it 
contained  the  truth  :  but,  upon  reflection,  he  had  no  recollection  of  the 
transactions  stated  in  the  paper,  other  than  what  the  paper  contained,  and 
that  he  could  not  speak  of  them,  independent  of  the  paper.  The  court 
rejected  the  paper,  and  would  not  let  it  go  in  evidence;  and  this  is  the  first 
question -presented  in  this  court.  It  cannot  be  pretended,  that  such  a  me- 
morandum, written  by  a  stranger,  at  the  date  of  any  transaction,  would 
itself  be  evidence  of  the  facts  it  contained.  It  is  well  settled,  that  a  wit- 
ness may  use  such  a  memorandum  to  refresh  his  recollection ;  but  he  must 
speak  from  his  recollection,  and  not  the  memorandums.  As  this  witness 
could  not  do  that,  the  memorandum  itself  was  properly  rejected.  It  could 
not  be  for  the  use  of  the  jury;  the  witness  alone  could  use  it;  and  as  it 
did  not  aid  his  recollection,  it  was  proper  for  no  other  purpose."  It  is,  per- 
haps, a  little  too  strongly  expressed,  that,  after  looking  at  the  paper,  the 
witness  must  speak  from  recollection,  and  not  the  memorandum ;  but  the 
law  seems  to  be  very  accurately  stated  in  the  last  sentence,  that  the  paper 
is  for  the  use  of  the  witness,  and  not  of  the  jury;  it  is  to  aid  the  witness, 
and  not  to  go  in  evidence.  Grlover  et  al.  v.  Hunnewill,  6  Pickering,  222, 
appears  to  be  decided  on  the  same  ground ;  there  had  been  a  bill  of  sale, 
and  then  an  attachment  against  the  property,  as  the  vendor's;  after  the 
attachment,  the  witness  and  another  proceeded  to  identify  the  property 
which  passed  by  the  bill,  and  made  a  schedule,  which  was  offered  in  evi- 
dence, with  his  oath ;  it  is  true  the  schedule  was  made  after  bill  of  sale  and 
the  attachment,  but  it  was  contemporary  with  the  identification,  which  was 
what  "was  to  be  proved,  and  as  the  oath  of  the  witness  as  to  the  occurrences 
at  that  time  seems  to  have  been  thought  admissible,  and  to  have  been  so, 
that  would  appear  not  to  have  been  the  reason  for  rejecting  it;  the  court, 
per  Parker,  C.  J.,  said,  "  the  witness  called  was  not  able  to  identify  the 
property,  except  by  a  schedule  taken  after  the  attachment,  and  even  with 
that  he  was  unable  to  swear  with  any  certainty  as  to  its  identity.  We 
think  his  testimony  was  rightly  rejected."  See  the  subject  ably  and  satis- 
factorily explained  by  Harrington,  C.  J.,  in  Redden  v.  Spruance  et.  al.,  4  Har- 
rington, 2G5.  See  also  Petriken  v.  Baldy,  7  Watts  &  Sergeant,  429.  And  see 
Fitler  V.  Eyre,  2  Harris,  392,  where  with  the  aid  of  memoranda,  the  witness 
"  testified  from  her  own  knowledge."  In  Dialogue  v.  Hooven,  7  Barr,  327,  also, 
the  oath  of  the  witness  to  the  delivery  seems  to  have  been  direct  and  positive. 
The  other  cases  which  are  cited  as  authority  for  the  admission  of  entries 


846  smith's   leading    cases. 

made  not  in  the  regular  course  of  business,  are  all  cases  of  refreshing 
memory.  The  South  Carolina  cases,  some  of  which  are  cited  in  Merrill  v. 
Ithaca,  &e.,  are  all  of  this  kind :  their  purport  is  not  to  make  entries  admis- 
sible, but  simply  to  carry  the  practice  of  refreshing  memory,  beyond  the 
case  where  the  witness  actually  remembers,  to  the  case  where  he  will 
undertake  to  swear  positively,  from  the  paper,  though  without  recollection. 
In  short,  the  object  of  those  cases  is  to  establish  the  second  kind  of  refresh- 
ing memory,  above-stated ;  and  nothing  more.  In  Haig  v.  Newton,  1  Rep. 
Const.  Ct.  423,  to  prove  notice,  a  notary's  clerk  was  called,  who  produced 
the  minute-book  kept  by  himself  and  the  notary,  and  was  confident  he  had 
left  the  notice  with  defendant,  or  at  his  house :  he  had  no  distinct  recollec- 
tion of  this  transaction  without  reference  to  his  memorandum-book:  the 
court  held  this  evidence  clearly  admissible.  This  was  unquestionably  a 
case  of  refreshing  memory;  it  is  icitldn  the  limit  fixed  by  Maughan  v. 
Hubbard  &  Robinson :  the  oath  of  the  witness  is  positive ;  and  that  was 
admitted,  not  the  entries.  But  had  the  entries  been  admitted,  they  were 
entries  in  the  course  of  business.  In  Sharpe  v.  Bergeley,  1  do.  373,  to 
prove  notice,  was  offered  the  clerk  of  the  notary  who  protested  the  note,  the 
notary  being  now  deceased  :  the  clerk  ^'  produced  the  book  in  which 
the  proceedings  of  the  notary  were  recorded,  and  swore  that  from  the  pro- 
ceedings in  that  book,  and  the  habits  of  the  notary's  ofiice  in  setting  down 
the  initials  of  the  names  of  the  clerks  by  whom  notices  were  served,  he  was 
certain  he  must  have  served  the  defendant  with  notice,  or  left  it  at  his  place 
of  residence,  but  he  had  not  at  first  any  recollection  in  his  mind  of  the  cir- 
cumstance ;  but  after  looking  attentively,  he  said  he  could  undertake  to 
swear  that  he  had  served  the  notice  :"  the  court  appear  to  have  held  the 
admissibility  of  the  evidence  too  clear  for  argument :  it  was,  in  fact,  a  most 
ordinary  case  of  refreshing  memory  :  and  in  Pearson  and  others  v.  Wight- 
man,  1  do.  336,  the  court  which  made  these  dicisions,  spoke  of  them  both 
as  proceeding  on  this  principle; — "We  decided  in  these  cases,"  is  the 
dictum  there,  "  that  the  testimony  of  a  witness  who  swore  positively  from 
written  memoranda,  though  they  did  not  recall  to  his  memory  a  recollection 
of  the  facts,  was  admissible ;  and  we  were  further  of  opinion  that  such  tes- 
timony was  better  evidence  than  an  adventurous  and  unaided  recollection." 
In  the  Corporation  of  Columbia  v.  Harrison,  2  do.  213,  to  prove  the  amount 
of  dues  owing  by  the  defendant,  the  town-clerk  was  produced ;  in  relation 
to  one  set  of  charges,  he  swore  that  ''he  made  the  entry  in  his  ledger, 
where  he  kept  the  accounts  of  the  town,  according  to  an  estimate  'made 
between  the  defendant  and  himself.  That  with  regard"  to  another  charge, 
on  another  account,  "he  usually  kept  memorandums  of  it,  and  at  the  end 
of  the  year,  after  comparing  his  accounts  with  the  defendant's  he  carried 
the  amount  as  adjusted  in  this  book.  That  he  had  had  frequent  settle- 
ments, and  compared  accounts  with  him,  and  that  the  balance  appearing  due 
was  just."  The  court  said,  "The  witness  was  properly  permitted  to  recur 
to  his  ledger,  or  any  other  memoranda,  to  assist  his  memory ;  or,  rather  as 
the  evidence  of  a  fact  which  he  knew  to  exist,  by  referring  to  it,  although 
he  might  have  lost  all  recollection  of  the  fact  itself.  The  books  themselves 
in  this  case  was  not  evidence.  The  witness  might  have  proved  the  amount 
from  recollection ;  but  the  memorandum  was  better."  The  court  expressly 
decide  that  the  books  were  not  evidence :    nothing  was  received  but   the 


PRICE     V.     THE     EARL    OF    TORRINQTON.  347 

clerk's  oath;  and  his  oath  is  not  grounded  on  the  entries,  but  is  an  original, 
independent  recollection  and  assertion,  that  the  balance  was  just,  and  that 
the  defendant  had  admitted  it.  The  State  v.  Rawls,  2  Nott  &  M'Cord, 
331,  was  an  indictment  for  gambling:  a  witness  was  called,  who  "began 
by  stating  the  circumstances  as  tlierj  appeared,  by  a  certain  affidavit  drawn 
up  by  himself,  at  the  time,  and  which  he  held  in  his  hand.  He  was  asked 
by  the  defendant's  counsel,  whether  he  had  a  distinct  recollection  then  of 
the  facts  contained  in  that  paper,  or  whether  he  could  only  swear  to  them 
because  he  saw  them  there  stated  ?  He  said,  that  some  of  them  he  recol- 
lected, but  that  of  others  he  had  no  recollection ;  but  that  he  knew  he  had 
put  down  at  the  time  what  he  saw,  and  nothing  more,  and  he  was  therefore 
ahle  to  swear,  that  all  those  facts  actually  existed  at  the  time,  although  he 
bad  not  now  a  distinct  recollection  of  them."  Objection  being  made,  the 
court  ruled  that  the  evidence  was  admissible.  <'The  witness  then  proceeded 
to  answer,  that  he  saw,"  &c. — "  He  said  he  recollected,"  so-and-so — «<  He 
did  not  now  recollect  distinctly,  that  this  defendant  was  playing,  though 
he  was  under  the  impression  that  he  was  ;  but  that  he  could  not  sicear  to 
it  now,  except  from  seeing  it  stated  in  his  affidavit,  and  he  knew  that  he 
did  not  put  any  thing  down  which  he  did  not  see."  No  other  evidence 
was  offered.  A  majority  of  the  court  above  held  the  evidence  rightly 
admitted:  two  judges  dissented;  why,  it  is  not  stated.  This  case  comes 
clearly  within  the  meaning  of  refreshing  memory.  To  some  of  the  facts 
the  witness  swears  from  recollection  and  impression;  to  every  fact,  after 
looking  at  his  paper,  he  swears  positively  and  absolutely  :  and  the  affidavit 
was  not  given  in  evidence  at  all.  Such  is  the  view  taken  of  this  case  in 
the  recent  one  of  Cleverly  v.  M<Cullough,  2  Hill,  445,  which  was  assumpsit 
for  work  and  labour.  The  witness  "  had  himself  measured  and  superin- 
tended the  measurement  of  a  quantity  of  the  work  done,  and  made  entries 
thereof  in  a  memorandum  book,  which  was  produced,  and  by  reference  to 
which,  he  could  testify  as  to  the  quantity  of  work,  but  he  was  unable  to 
speak  of  the  details  from  memory,  independently  of  the  book  *  *  The 
court  permitted  the  witness  to  testify  as  to  the  quantity  from  the  entries  in 
his  book."  The  court  above,  per  Harper,  J.,  said,  "We  think  that  the 
rule  has  been  misconceived,  which  allows  a  witness  to  look  at  a  memoran- 
dum for  the  purpose  of  refreshing  his  memory.  The  subject  is  fully  con- 
sidered in  the  case  of  State  v.  Rawls.  The  rule  there  established  is,  that  if 
a  memorandum  were  made  by  the  witness  at  the  time,  with  a  view  to  per- 
petuate the  recollection  of  the  facts,  and  the  witness  can  swear  positively 
that  the  memorandum  was  made  according  to  the  truth  of  the  facts,  and 
consequently,  that  the  facts  did  exist,  this  is  sufficient,  though  they  may  not 
remain  in  his  memory  at  the  time  he  gives  his  testimony.  *  *  Here,  from 
the  memorandum,  the  witness  did  swear  positively  to  the  truth  of  the  facts 
in  the  memorandum."  These  decisions  are  very  valuable,  as  carrying  the 
practice  of  refreshing  memory  nearly,  if  not  quite,  to  the  same  extent  in 
wliich  it  is  carried  in  England :  the  principle  which  they  establish,  that 
where  the  witness  has  made  a  memorandum  at  the  time,  for  the  purpose  of 
preserving  a  recollection  of  the  facts,  and  afterwards,  upon  looking  at  the 
papers,  swears  positively  to  the  truth  of  the  facts,  though  he  can  recollect 
nothing,  his  testimony  is  admissible. 

With  regard  to  the  cases  cited,  of  the  admission  of  notes  «f  counsel, 


348  smith's   leading   cases. 

Rogers  v.  Burton  and  others,  Peck,  108,  was  a  case  of  refreshing  memory  : 
the  judge  swore  positively  to  the  accuracy  of  the  notes  :  the  point  decided 
there  was,  that  if  after  looking  at  the  memorandum,  the  witness  can  recollect 
the  facts,  the  paper  need  not  be  produced ;  but  if  he  cannot  recollect,  the 
original  must  be  produced.  In  Clark  v.  Vorce,  15  Wendell,  193,  the  notes 
were  used  only  to  refresh  memory,  the  witness  swearing  to  their  accuracy  : 
the  point  whether  the  witness's  statement  from  the  notes,  or  the  notes  them- 
selves should  be  admitted,  was  not  before  the  court. 

The  opinion  of  Parker,  C.  J.,  in  the  recent  case  of  Haven  v.  Wendell, 
11  New  Hampshire,  112,  is  undoubtedly  in  favour  of  the  admissibility  of 
memoranda  in  certain  circumstances,  but  the  case  has  no  application  to 
private  entries  or  memoranda,  made  by  a  witness  for  the  purpose  of  pre- 
serving a  recollection  of  facts,  and  so  far  as  the  remarks  of  the  Chief  Jus- 
tice may  embrace  such  entries,  they  are  extra-judicial.  In  that  case  a 
witness  testified  that  he  had  had  a  conversation  with  one  of  the  defendants, 
of  which  at  the  trial  he  recollected  only  the  principal  fact;  and  that  he,  the 
witness,  supposing  the  facts  then  stated  might  be  useful  to  the  plaintiff, 
went  immediately  into  the  bank,  on  the  pavement  in  front  of  which,  the 
conversation  had  taken  pkce,  and  made  a  memorandum  of  them,  in  writing, 
which  he  gave  to  the  plaintiff,  who  was  the  cashier  of  the  bank.  A  paper 
being  shown  to  him  on  the  trial,  he  said  that  was  the  memorandum,  but  he 
could  not  from  reading  it  undertake  to  say  that  he  now  recollected  the  facts, 
or  knew  them,  otherwise  than  by  finding  them  in  his  handwriting ;  but  he 
had  no  doubt  they  were  true,  and  that  he  should  have  sworn  to  them  from 
recollection  at  or  near  the  time.  This  memorandum,  with  the  testimony  of 
the  witness,  was  decided  to  be  admissible.  This  case  proves  that  a  written 
statement  of  a  fact,  made  immediately  after  its  occurrence,  and  given  to  a 
third  person  for  his  benefit,  is,  when  supported  by  the  oath  of  the  person 
who  made  it,  that  it  was  so  made  and  given,  and  that  he  believes  it  to  be 
true,  admissible  evidence.  The  writing  of  such  a  paper  at  the  time,  and 
giving  it  to  the  person  concerned  in  the  conversation,  is  so  far  a  part  of  the 
res  gesta  of  the  transaction,  that  when  accompanied  with  the  oath  of  the 
writer  that  he  has  no  doubt  it  is  true,  it  becomes  primary  evidence ;  and  its 
admissibility  may  be  sustained  on  the  same  ground  on  which  the  attesting 
signature  of  a  witness  to  a  deed  is  legal  evidence,  when  authenticated  by 
the  witness  himself,  though  he  may  have  forgotten  the  delivery  of  the 
instrument,  or  when  his  handwriting  is  proved  after  his  death,  by  a  third 
person.  The  only  case  cited  in  Haven  v.  Wendell,  which  comes  near  the 
point  decided  there  is  Alvord  v.  Collin,  20  Pickering,  418,  431,  in  which  a 
certificate  given  by  a  witness  that  a  notice  had  been  posted  up  at  his  house, 
made  near  the  time,  was  verified  by  the  witness  at  the  trial,  as  being  in  his 
handwriting,  and  the  witness  said  he  had  no  doubt  the  certificate  stated  the 
truth,  though  he  had  no  recollection  of  the  fact ;  there,  the  court  referred  to 
the  case  of  the  attestation  of  a  deed,  and  said  «<  it  is  every  day's  practice  to 
prove  the  execution  of  deeds  and  other  instruments,  by  subscribing  wit- 
nesses, who  know  nothing  about  them,  except  that  their  names  are  writ- 
ten by  themselves."  The  difference  between  a  contempory  act,  like  the 
signature  of  an  attesting  witness,  or  the  delivery  of  the  certificate  or  memo- 
randum, as  in  the  two  cases  just  cited,  done  at  the  request,  or  for  the  bene- 
fit of  a  thii'd  person,  and  a  private  entry  made  for  the  witness's  own  conve- 


PRICE     V.     THE     EARL     OF     TORRINGTON.  349 

nience,  is,  in  principle,  very  wide.  The  cases  cited,  are  extensions,  and 
perhaps  excessive  extensions,  of  the  principle  on  which  the  signature  of  a 
witness  to  a  deed,  when  proved  by  himself  or  another,  is  admitted  j  but 
they  did  not  touch  the  consideration  of  the  admissibility  of  private  memo- 
randa made  by  a  witness  for  the  purpose  of  preserving  a  recollection  of  the 
fact.  If  a  witness  has  made  such  a  memorandum  in  good  faith,  and  is  con- 
fident that  he  made  it  for  such  a  purpose,  he  ought  to  be  willing  to  swear 
positively  to  the  truth  of  the  facts  stated  in  the  memorandum.  He  is  the 
best  judge  of  the  credit  due  to  his  own  memorandum,  and  if  after  reading  it 
he  is  not  so  confident  in  it  as  to  swear  that,  he  knows  the  fact  which  he  has 
recorded,  it  ought  not  to  be  expected  that  a  jury  should  believe  it,  and  they 
ought  not  to  be  embarrassed  with  the  determination  of  another's  doubts, 
which  the  party  who  feels  them  cannot  settle. 

The  conclusion  upon  all  the  American  cases,  as  to  the  wbole  principle, 
is,  that  entries  made  in  the  regular  and  usual  course  of  business  are  admis- 
sible in  evidence  after  the  death  of  the  person  who  made  them,  on  proof  of 
his  handwriting;  and  during  his  life,  if  authenticated  by  himself;  other 
private  entries  may  be  used  to  refresh  the  memory,  but  are  not  admissible 
in  evidence.  And  this  principle  is  approved  in  Redden  v.  Spruance  et  al.  4 
Harrington,  265,  269.  In  Underwood  v.  Parrot,  2  Texas,  168,  176,  the 
entries  were  made  in  the  regular  course  of  business.  The  cases  of  Haven 
V.  Wendell,  and  Alvord  v.  Collin,  place  certificates,  or  other  written  acts, 
which  happened  between  a  third  party  and  one  c^  the  parties  to  the  suit, 
about  the  time  of  the  transaction  and  in  relation  to  it,  upon  the  same  foot- 
ing with  entries  in  the  course  of  business,  as  being  admissible  when  fully 
verified  by  the  person  who  made  them,  he  being  unable  to  give  evidence 
from  direct  recollection. 

The  principle  established  in  Price  v.  Torrington,  has  been  carried  much 
farther  in  many  of  the  states  in  this  Union  ;  and  the  shop-books  of  the 
plaintiflF,  kept  by  himself,  are  received  as  competent  evidence.  The  impor- 
tance of  this  subject,  and  the  variations  in  the  practice  of  the  diSerent  states, 
render  it  necessary  to  state  the  law  as  to  each  of  them  separately.  It  will 
be  seen  that  in  some,  the  oath  of  the  party  is  received  in  authentication  and 
support  of  his  books ;  in  others,  the  books  are  received,  when  verified  by  a 
disinterested  witness,  and  the  oath  of  the  party  is  not  rgseived  :  in  some  a 
limited  admission  is  given  by  statute  :  and  in  some,  we  find  no  trace  what- 
ever of  the  practice.  The  law  of  those  states  in  which  the  books  and  oath 
of  the  party,  both,  are  received,  will  be  considered  first. 

In  Massachusetts,  a  plaintiff's  book  of  original  entries,  in  his  hand- 
writing, and  supported  by  his  oath,  is  evidence  of  articles  delivered,  and 
work  and  labour  done ;  but  not  of  anything  else;  Prince's  administratrix 
V.  Smith,  4  Massachusetts,  455  ;  except  money  charges,  to  the  extent  of 
forty  shillings,  or  six  dollars  and  sixty-six  cents,  and  not  beyond ;  Union 
Bank  V.  Knapp,  3  Pickering,  96,  109  ;  Burns  v.  Flay,  14  id.  8  :  of  articles 
delivered,  they  are  evidence  to  any  amount;  Shillaber  v.  Bingham,  3  Dana's 
Abr.  321.  They  are  evidence  also  of  work  done  by  the  plaintiff's  appren- 
tice, and  it  is  not  necessary  first  to  call  the  clerk ;  for  books  of  entries  veri- 
fied by  the  plaintiff's  oath  are  not  secondary  evidence;  they  are  original 
evidence,  though  feeble  and  unsatisfactory ;  Mathes  v.  Robinson,  8  Metcalf, 


350  smith's   leading   cases. 

2G9.  If  the  articles  wore  dclivcrecl  to  a  third  person,  the  book  of  entries 
would  generally  not  be  admissible  without  calling  hira ;  but  if  he  is  called 
and  does  not  recollect,  the  book  would  generally  be  admissible;  Ball  v. 
Gates,  12  id.  491.  In  Windsor  and  another  v.  Dillaway,  4  Metcalf,  221,  it 
was  decided  that  the  book  of  a  ship-broker,  containing  a  charge  of  a  com- 
mission of  sixty  dollars  upon  a  sale,  was  inadmissible,  because  it  was  of  one 
single  large  item,  and  related  to  a  transaction  of  which,  from  the  nature  of 
the  case,  other  and  better  evidence  could  be  given ;  and  the  court  said  that 
this  was  "  a  questionable  species  of  evidence,  admitted  from  necessity  only, 
and  intended  for  the  aid  of  mechanics  and  small  dealers,  who  keep  daily 
accounts  of  their  transactions ;  that  it  was  a  dangerous  species  of  evidence, 
and  not  to  be  extended  by  new  precedents." — The  admissibility,  or  com- 
pefencT/,  of  the  book,  is  for  the  court;  the  credit  due  to  it,  is  for  the  jury  ; 
and  there  are  two  principal  objections  which  go  to  the  competency  of  the 
book.  Coxwell  v.  DoUiver,  2  Massachusetts,  217. — As  to  the  first  of  these, 
the  rule  is  laid  down  as  follows :  "  To  be  admitted  in  evidence,  the  books 
must  appear  to  contain  the  first  entries  or  charges  of  the  party,  made  at  or 
near  the  time  of  the  transaction  to  be  proved ;  and  when  the  contrary  is  dis- 
coverable on  the  face  of  the  book,  or  comes  out  upon  the  examination  of  the 
party,  they  ought  to  be  rejected  as  incompetent  evidence  :"  per  Sewall,  J., 
in  Coxwell  v.  Dolliver :  "  it  is  essential  to  this  kind  of  evidence,  that  the 
charges,  appearing  in  the  handwriting  of  the  party,  are  in  such  a  state,  that 
they  may  be  presumed  to«have  been  his  daily  minutes  of  his  business  and 
transactions,  in  which,  regard  is  had  to  the  degree  of  education  of  the  party, 
the  nature  of  his  employment,  and  to  the  manner  of  his  charges  against 
other  people.  Where  this  appearance  is  wanting,  and  the  presumption  can- 
not be  made,  the  evidence  has  usually  been  rejected  as  incompetent;"  opi- 
nion of  the  court,  per  Sewall,  J.,  in  Prince's  administratrix  v.  Smith  : 
"  but  as  the  law  has  prescribed  no  mode  in  which  a  book  shall  be  kept,  to 
make  it  evidence,  the  question  of  competency  must  be  determined  by  the 
appearance  and  character  of  the  book,  and  all  the  circumstances  of  the  case, 
indicating  that  it  has  been  kept  honestly,  and  with  reasonable  care  and  ac- 
curacy, or  the  reverse;"  per  Shaw,  C.  J.,  in  Mathes  v.  Ilobinson,  8  Met- 
calf, 269;  where  it  was  determined,  that  a  book  kept  in  a  tabular  form, 
with  the  days  of  the  month  at  the  head  of  the  columns,  and  the  name  of  the 
labourer  at  the  side,  and  opposite  to  it  in  each  column,  the  fraction  of  the 
day  that  he  had  worked,  was  admissible  in  evidence.  Where  a  book  was 
offered  in  evidence,  and  the  plaintiff  (a  blacksmith)  stated  "that  he  kept  a 
slate  in  his  shop,  on  which  he  set  down  all  his  charges  as  they  accrued,  and 
that  he  was  in  the  habit  of  transcribing  the  entries  from  the  slate  into  the 
book  :  and  after  that  was  done,  to  rub  out  the  charges  on  the  slate,  and 
begin  anew :"  the  court  admitted  the  book ;  saying,  "  The  entries  in  the 
book  maybe  considered  original,  although  transcribed  from  a  slate;  the 
slate  containing  merely  memoranda,  and  not  being  intended  to  be  permanent." 
Faxon  V.  Ilollis,  13  Massachusetts,  427.  In  Smith  et  al.  v.  Sanford,  12 
Pickering,  139,  the  plaintiffs  were  in  partnership  as  butchers;  they  swore- 
that  their  custom,  during  part  of  the  year,  was,  for  one  of  them  to  carry  the 
meat  round  in  a  cart  to  their  customers,  and  he  made  chalk  scores  on  the 
cart  at  the  time  of  delivery,  stating  to  whom  the  meat  was  sold,  and  the 
quantity  and  price ;   "  from  which  scores,  on  the  return  of  the  cart,  on  the 


PRICE    V.    THE    EARL    OF    TORRINGTON.  351 

same  day,  and  before  it  went  out  again,  it  was  the  custom  for  the  other 
partner  to  make  entries  in  the  book  of  original  entries  ;"  the  court  held  the 
book  competent,  and  sufEcient  to  justify  the  jury  in  finding  for  the  plain- 
tiffs. Entries  made  by  a  wife  by  the  husband's  direction  and  in  his  pre- 
sence, are  competent,  and  may  be  proved  by  her;  Littlefield  v.  Rice,  10 
Metcalf,  287. — The  second  objection  to  the  competency  of  the  book  of  en- 
tries is  stated  thus :  "  Fraudulent  appearances  or  circumstances,  such  as 
material  and  gross  alterations,  false  additions,  &c.,  are  also  objections  to  the 
competency  of  the  book,  in  which  they  are  discoverable,  or  against  which 
they  may  be  proved  in  any  manner;'^  Sewall,  J.  in  Coswell  v.  Dolliver. 
Other  objections  than  these  two  will  only  affect  its  credit,  before  the  jury; 
such,  for  instance,  of  its  being  in  the  form  of  a  ledger,  and  not  a  day-book  ; 
which,  according  to  the  circumstances,  would  be  matter  of  observation  to 
the  jury.  lb.  Where  a  blacksmith's  book  was  in  the  ledger-form,  the  court 
held  it  no  objection  in  that  case,  for  it  was  the  way  ordinary  mechanics, 
especially  in  the  country,  kept  their  books  ;  but  if  it  had  been  a  shopkeeper's 
book,  it  would  have  been  liable  to  more  suspicion.  Faxon  v.  Hollis.  In 
Gibson  V.  Bailey,  13  Metcalf,  537,  it  was  held,  that  a  book  in  the  ledger- 
form,  that  is,  with  all  the  charges  against  the  defendant  entered  on  one  leaf, 
with  no  intervening  charges,  was  admissible.  In  Prince's  administratrix  v. 
Smith,  2  Massachusetts,  569,  it  appeared  from  marks  in  the  day-book,  that 
the  account  had  been  transferred  to  the  ledger,  and  the  court  said,  ''  When 
an  account  is  transferred  to  a  ledger  from  the  day-book,  the  ledger  should 
be  produced,  that  the  other  party  may  have  advantage  of  any  items  entered 
therein  to  his  credit."  See  Hervey  et  al.  v.  Harvey,  (Maine,  infra.)  The 
fact  that  the  entries  are  in  pencil  is  not  a  cause  for  rejecting  them ;  Gibson 
V.  Bailey,  13  Metcalf,  537.  In  Frye  v.  Barker  et  al.,  2  Pickering,  G5,  it 
was  said  by  Parker,  C.  J.,  to  be  a  general  principle,  that  where  a  party's 
oath  is  admitted,  he  must  be  sworn  in  court;  and  that  a  plaintiff's  testimony 
in  support  of  his  book  of  entries  could  not  be  taken  by  a  commission.  Gen- 
erally, the  original  book  should  be  brought  into  court :  but  where  the  day- 
book and  ledger  have  been  accidentally  destroyed  by  fire,  a  transcript  proved 
to  be  correct,  by  the  witness  who  transcribed  it,  is  admissible.  Holmes  v. 
Marden,  12  id.  169  :  but  not  unless  it  is  a  proved  and  compared  copy  of 
genuine  entries.     Prince's  administratrix  v.  Smith. 

In  New  Hampshire,  in  Eastman  v.  Moulton,  3  New  Hampshire,  157,  the 
law  of  Massachusetts  as  above  stated  is  neatly  abridged,  by  Richardson,  C. 
J.,  and  adopted  as  the  law  of  that  state :  and  it  is  there  further  decided, 
that  the  admission  of  such  books,  is  to  be  confined  to  cases  where  it  may  be 
presumed  that  there  is  no  better  evidence ;  and,  therefore,  if  the  charges 
are  not  in  the  handwriting  of  the  party  sworn,  or  if  it  appear  by  the  book, 
or  the  party's  testimony,  that  the  article  was  delivered  by  or  to  a  third  per- 
son, the  book  is  to  be  rejected,  (at  whatever  stage  of  the  case  this  discovery 
is  made,)  because  there  must  be  better  evidence  attainable  :  accordingly,  in 
this  case,  when  it  appeared  that  the  articles  were  delivered  to  the  servant  of 
the  party  charged,  and  not  to  the  party  himself,  the  book  was  rejected  as 
inadmissible.  A  summary  of  the  principles  on  which  this  evidence  is  ad- 
missible is  again  given  in  Cummings  v.  Nichols,  13  id.  421,  425.  The 
admissibility  of  this  evidence  is  confined,  also,  to  suits  between  the  debtor 
and  creditor;  for  the  necessity  upon  which  the  reception  of  it  rests,  does  not 


352  SMIin's  LEADING  CASES. 

exist  where  the  dealing  between  the  debtor  and  creditor  is,  as  to  the  parties 
to  the  suit,  a  collateral  matter,  since,  in  such  a  case,  either  the  debtor  or 
the  creditor  is  a  competent  witness;  Woodes  v.  Dennett,  12  id.  511.  To 
render  a  book  admissible,  the  charges  should  be  separate  and  special,  but 
no  greater  particukrity  in  describing  the  nature  of  the  work  or  service,  than 
is  usual  in  similar  cases,  is  requisite  ;  Bassctt  v.  Spofford,  11  id.  167  j 
Cummings  v.  Nichols,  13  id.  421,  426.  Books  of  account  are  admissible 
to  prove  money  charges  to  the  extent  of  forty  shillings,  or  §6.67 ;  id. ;  and 
the  book  of  an  intestate,  supported  by  the  oath  of  the  administrator,  is  good 
evidence;  Dodge  v.  Morse,  3  id.  232.  Respecting  the  extent  to  which  the 
party  may  be  made  a  witness,  it  has  been  laid  down,  that,  '<  The  party,  when 
called,  is,  in  the  first  instance,  permitted  to  state  only  that  the  book  pro- 
duced is  his  book  of  original  entries ;  that  the  charges  are  in  his  handwrit- 
ing ',  that  they  were  made  at  the  times  they  purport  to  have  been  made,  and 
at  or  near  the  time  of  the  delivery  of  the  articles,  or  of  the  performance  of 
the  services.  He  may,  however,  be  cross-examined  by  the  other  party;  in 
which  case,  his  answers  become  evidence,  and  he  is  entitled  to  give  a  full 
explanation  of  any  matter  in  relation  to  which  an  inquiry  is  made  on  the 
cross-examination.  It  is  reasonable  and  proper  that  he  should  be  made  a 
witness  as  far  as  the  opposite  party  chooses  to  make  him  one ;  and  that,  as  far 
as  he  is  made  a  witness,  he  should  be  at  liberty  to  give  a  full  explanation. 
But,  in  our  opinion,  a  cross-examination  does  not  entitle  him  to  go  beyond 
this.  It  does  not  entitle  him  to  testify  as  to  independent  facts,  not  necessary 
to  the  explanation  of  the  facts,  respecting  which  he  may  have  been  ques- 
tioned upon  the  cross-examination.  It  does  not  make  him  a  witness  in  chief 
in  the  cause  ;"  Eastman  v.  Moulton.  A  book  of  entries  verified  by  the 
party's  oath  is  competent  for  no  other  purpose  than  to  prove  the  account, 
which  is  the  foundation  of  the  suit,  on  the  ground  of  set-ofi";  but  it  is  the 
book  which  is  the  evidence,  and  the  party  testifies  only  to  verify  it ;  Little 
V.  Wyatt,  14  id.  23,  25.  But  the  right  of  the  plainiifi"  to  give  full  expla- 
nations of  the  answers  which  he  has  made  to  the  defendant's  questions, 
exists  even  when  the  book  has  been  rejected  as  incompetent;  M'llvaine  v. 
Wilkins,  12  id.  474,  478. 

In  Maine,  as  in  Massachusetts,  books  are  competent  evidence  to  prove 
work  done,  and  goods  delivered ;  and  cash  charges  to  the  extent  of  forty 
shillings  (36.67) :  but  they  are  not  admissible  to  prove  that  defendant  was 
an  agent,  and  to  prove  a  delivery  to  him  as  agent,  and  an  agreement  by  him 
to  sell  on  account;  Dunn  v.  Whitney,  1  Fairfield,  9  :  and  it  was  said  in 
this  case,  that  the  admission  of  books  would  be  restricted  for  the  future ; 
that  formerly,  when  few  persons  kept  clerks,  they  were  admitted  from  neces- 
sity; but  that  now,  whenever  it  appeared  from  the  testimony,  or  was  to  be 
inferred  from  the  nature  of  the  transaction,  that  better  evidence  was  to  be 
had ;  as,  if  it  appeared  that  a  clerk  was  kept ;  or  if  the  articles  were  so 
large,  or  the  transaction  on  such  a  scale,  that  it  must  be  presumed  that 
clerks  and  porters  were  employed,  the  books  would  not  be  admitted.  In  the 
recent  case  of  Mitchell  v.  Belknap,  10  Shepley,  (23  Maine)  475,  however, 
it  was  decided,  that,  although  when  goods  are  delivered  iy  a  servant  or 
agent,  and  the  charges  made  by  him,  the  evidence  of  that  person  will  be 
requii'ed,  yet  where  goods  are  delivered  to  a  third  person  authorized  by  such 
receipt  to  charge  the  defendant,  the  books  of  the  defendant  are  competent 


TRICE    V.     THE    EARL    OE     TORRINGTON.  353 

evidence  of  the  delivery,  provided  the  authority  to  charge  the  defendant  be 
proved  aliunde.     The  principle  that  books  of  entry  may  be  evidence  of  arti- 
cles delivered,  to  a  certain  amount,  and  not  beyond  it,  has  been  established 
in  a  recent  case,  and  its  application  defined  with  precision.     Leighton  et  al. 
v.  Manson,  2  Shepley,  (14  Maine,)  208,  was  assumpsit  on  an  account  con- 
sisting of  only  two  charges,  for  beef,  bearing  date  the  same  day,  one  for 
3551b.,  the  other  for  8601b.     The  judge  below  rejected  the  book  of  original 
entries,  because  the  article  being  so  bulky,  the  delivery  must  be  provable 
by  other  and  better  means ;   and  the   plaintiff  was   nonsuited.     The  court 
above,  per  Shepley,  J.,  sustained  the  nonsuit,  and  expressed  the  following 
striking  and  satisfactory  views.     '<  The  object  to  be  attained,  by  the  admis- 
sion of  the  books  with  the  party's  oath,  is  to  prove  the  service  performed,  or 
the  articles  delivered.     The  party  must  be  able  to   state,  that  he  actually 
delivered  the  articles,  or  was  knowing  to  their  delivery,  as  well  as  that  he 
made  the  entries.     The  necessity,  then,  for  the  oath  of  the  party  in  aid  of 
his  books,  seems  to  exist  only  where  he  delivered  the  articles  himself.     If 
the  articles  were  of  such  bulk  or  weight,  that  the  person  making  the  entries 
could  not  reasonably  be  supposed  to  have  delivered  them  without  assistance, 
the  presumption  would  arise,  that  better  evidence  of  delivery  might  be  pro- 
duced ;  and  the  reason  for  admitting  his  own  testimony  would  cease.     Per- 
haps no  better  rule  for  the  guidance  of  judicial  tribunals  will  be  found,  than 
for  the  judge  to  decide  on  the  inspection  of  the  items  of  the  account,  whe- 
ther the   items  charged   could  ordinarily  have  been  delivered  without  the 
assistance  of  other  persons;  and  admit  or  reject  the  testimony  according  as 
he  may  conclude  that  the  articles  could  or  could  not  have  been  so  delivered. 
Acting  upon  this  rule,  the  court  must  conclude,  that  it  could  not  ordinarily 
he  expected,  that  one  person  should  have  delivered  the  articles  charged  in 
the  account;  and  the  ruling  of  the  judge  must  be  regarded  as  correct:"  and 
to  the  same  effect  is  Mitchell  v.  Belknap,  482.     In  Leighton  et  al.  v.  Man- 
son,  also,  it  was  decided,  that  if  the  books  be  in  the  handwriting  of  a  deceased 
partner,  they  are  evidence  for  the  surviving  partners,  (if  otherwise  admissi- 
ble,) on  proof  of  his  handwriting.      But  in  any  case,  nothing  can  be  proved 
by  such  evidence,  but  the  delivery;  and  a  contract  as  to  price,  or  facts  not 
entering  into  the  items  of  charge,  cannot  be  proved  by  the  plaintiff's  oath; 
Mitchell  v.  Belknap;  Amee  v.  Wilson,  9  Shepley,  (22  Maine,)  116,  120. 
It  would  appear  that  the  word  600/1;,  has  received  in  Maine,  a  signification 
rather  more  extensive,  than  has  usually  been  given  to  it  elsewhere.     In 
Kendall,  Admr.  v.  Field  et  al.,  2  Shepley,   (14  Maine,)  30,  which  was 
assumpsit,  for  labour  in  hewing  timber,  the  report  states  that,  "The  plaintiff 
offered  in  evidence  a  shingle,  on  which  it  was  proved  that  his  intestate 
entered  from  day  to  day  in  the  woods,  an  account  of  the  timber  hewed  by 
him  each  day,  under  a  contract  with  the  defendants."     We  have  no  further 
description  of  the  shingle,  nor  account  of  what  other  evidence  was  offered. 
Weston,  C.  J.,  admitted  it;  and  the  court  above,  per  Weston,  C.  J.,  said, 
"considering  the  nature  of  his  employment,  and  the  place  where  he  was, 
and  that  the  shingle  contained  the  daily  minutes  of  the  business  in  which 
he  was  engaged,  we  think  it  was  legally  admissible  :  it  was  a  substitute  for 
a  memorandum-book,  which  answered  the  purpose  at  the  time,  and  was, 
perhaps,  as  little  liable   to  alteration  or  erasure,  without  being  detected  by 
the  eye,  as  if  made  on  paper."     It  is  proper  to  say,  in  respect  to  this  extra.- 
VoL.  I.— 23 


854  smith's  leading  cases. 

ordinary  case,  that  it  appears  from  the  argument  of  counsel,  that  everything, 
but  the  tjuavtitij  of  timber  hewed,  was  proved  by  other  evidence;  and  that 
it  is  stated  in  the  opinion  of  the  court,  that  after  the  entry  was  made  on  the 
shingle,  the  timber  "  was  taken  away  by  the  defendants,  without  being  sur- 
veyed; and  mingled  with  other  timber."  So  that  the  odium  spoliatoris, 
probably  had  something  to  do  with  the  admission  given  to  this  peculiar  kind 
of  document. — In  reference  to  the  Massachusetts  decision  of  Prince's  Ex'rs 
V.  Smith,  it  was  held  in  Hervey  et  al.  v.  Harvey,  3  Shepley,  (15  Maine,) 
357,  that  it  is  only  where  the  day-hook  itself  shows,  by  marks  on  its  face, 
that  the  account  had  been  transferred  to  the  ledger,  that  the  ledger  need  be 
produced,  without  notice. 

In  Pennsylvania,  books  of  original  entries  made  by  the  party,  and  veri- 
fied by  his  oath,  are  competent  evidence  of  goods  sold  and  delivered,  and 
work  done,  and  of  the  prices,  but  not  of  money  lent  or  paid;  Ducoign  v. 
Schreppel,  1  Yeates,  347  :  but  in  a  case  where  a  foreign  agent  and  con- 
signee, sued  to  recover  compensation  for  articles  furnished,  and  money  ex- 
pended, and  offered  in  evidence  his  day-book,  supported  by  his  oath,  the 
court  held,  that  as  it  related  to  a  foreign  mercantile  transaction,  necessity 
authorised  the  admission  of  the  book,  subject  to  close  scrutiny  as  to  its  fair- 
ness and  credibility;  Seagrove  v.  Redman  et  al.,  2  id.  254;  S.  C.  4  Dallas, 
153  ;  and  see  Himes  v.  Barnitz,  8  Watts,  39,  47.  The  only  proper  opera- 
tion of  books  of  entries  is,  by  showing  contemporary  charges  for  goods  deli- 
vered and  work  done,  in  a  course  of  dealing  between  the  parties,  to  serve 
as  evidence  to  raise  an  assumpsit  in  law  to  pay  for  them.  If  offered  to 
prove  any  collateral  matter;  as,  that  a  third  party  assumed  to  pay;  or  that 
a  certain  person  was  a  partner  in  a  house  charged ;  or  to  prove  an  agency, 
and  show  that  goods  were  delivered  or  received  to  sell  on  commission ;  or  to 
prove  a  delivery  of  goods  in  performance  of  a  special  contract;  for  any  such 
purpose,  books  are  not  competent  evidence  :  Poultney  et  al.  v.  Ross,  238 ; 
Juniata  Bank  t.  Brown,  5  Sergeant  &  Rawle,  226;  Baisch  v.  Hoff,  1 
Yeates,  198,  and  Murphy  v.  Cress,  2  Wharton,  33 ;  Lonergan  v.  White- 
head, 10  Watts,  249,  and  Nickle  v.  Baldwin,  4  Watts  &  Sergeant,  290 ; 
Alexander  V.  Hoffman,  5  id.  382;  Petriken  v.  Baldy,  7  id.  429;  Phillips 
v.  Tapper,  2  Barr,  323  ;  Fitler  v.  Eyre,  2  Harris,  392 ;  arguments  of  counsel 
in  Borrekins  v.  Bevan  &  Porter,  3  Rawle,  23,  26 ;  but  see  Mifflin  et  al.  v. 
Bingham,  1  Dallas,  272,  276 ;  Moyes  &  Tatem  v.  Brumaux,  3  Yeates,  30. 
In  sci.  fa.  sur  mechanic's  lien,  a  book  of  entries,  is,  of  course,  competent  to 
show  that  the  materials  were  furnished  on  the  credit  of  the  house ;  for  the 
house  is  the  defendant.  M'3Iullin  v.  Gilbert,  2  Wharton,  277.  But  in 
such  a  proceeding,  charges  in  the  book  made  against  the  owner  or  contractor 
individually,  are  competent  to  show  the  amount  of  materials  furnished,  and 
the  facts  which  render  the  building  liable,  may  be  proved  aliunde.  Church 
V.  Davi.5,  9  Watts,  304;  and  if  one  is  charged  in  a  book  of  entries,  and  you 
prove  aliunde  that  another  is  really  liable  as  the  principal  debtor,  the  books 
are  admissible  to  show  the  amount  and  price  of  the  articles  for  which  the 
latter  is  shown  to  be  liable.  Linn  v.  Naglee,  4  Wharton,  92  ;  Hartley  v. 
Brooks,  6  id.  189.  And  these  decisions  are  entirely  consistent  with  the 
principle  above  mentioned. — To  render  a  book  of  entries  admissible,  the 
following  matters  appear  to  be  necessary.  The  entries  must  be  made  in  the 
course  of  the  party's  business;  and,  therefore,  the  person  making  them 


"TRICE    V.     THE     EARL    OF    TORRINGTON.  355 

should  be  in  business  :  "  it  must  be  in  a  course  of  dealing  between  the  par- 
ties, and  the  entries  made  about  the  time  of  the  transaction;"  Walter  v.  Boll- 
man,  8  Watts,  Sii ;  Curren  v.  Crawford,  4  Sergeant  &  Rawle,  3 ;  and  the  article 
sold  must  lie  in  the  line  of  the  party's  general  business;  for  the  sale  of  a 
horse  by  a  dry  goods  merchant,  or  tradesman,  could  not  be  proved  by  an 
entry  in  the  books  of  account;  Shoemaker  v.  Kellog,  1  Jones,  310.     The 
book  should  be  such  a  regular  and  usual   account-book,  as  explains  itself, 
and,  on  its  face,  appears  to  create  a  liability  in  the  defendant :   therefore, 
loose,  unconnected  pieces  of  paper,  containing  other  figuring  and  scribbling 
beside  the  charges  in  question,   and  manifestly  not  "  an  account  regularly 
kept,"  was  rejected  in  Thompson  v.  M'Kelvey  and  another,  13  S.  &  11. 126  ; 
and   a  paper,  appearing  to  be   torn  out  of  a  book,  containing  memoranda 
unintellible  without  explanation  from  the  plaintiff,  was  held  inadmissible  in 
Hough  V.  Doyle,  4  Rawle,  291.     The  entries  should  hQmade  with  the  intent 
to  charge  :  for  if  the  entry  be  a  charge,  this  both  asserts  a  delivery,  and 
imports  a  contract ;  Walter  v.  Bollmau  :  therefore,  in  a  suit  to  recover  for 
sales  made  through  an  agent,  the  invoice-hook  of  the  agent  is  no  evidence  ; 
Cooper  V.  Morrell,  4  Yeates,  341 :  and  a  defendant's  entries  in  his  account- 
book,  of  work  and  labour  done  for  him  by  the  plaintiff,  are,  on  this  account, 
inadmissible ;  Summers  v.  M'Kim  and  another,  12  Sergeant  &  Rawle,  405  ; 
Keim  v.  Rush,  5  Watts  &  Sergeant,  377 ;  and  a  memorandum  paper  on  which 
neither  the  defendant's  name  appears,  nor  any  charges  against  the  defen- 
dant, is  in  like  manner  incompetent;  Hough  v.  Doyle,  4  Rawle,  291;  Fair- 
child  V.  Dennison,  4  Watts,  258 ;  Phillips  v.  Tapper,  2  Barr,  323  :  and  a 
book  which  is  composed  of  receipts,  signed  by  the  agents  employed  to 
deliver,  cannot  be  treated  as  a  book  of  original  entries;  Sterrett  v.  Bull, 
1  Binney,  234 ;  Curren  v.  Crawford :  and  a  book  kept  by  a  forge-master 
for  the  purpose  of  enabling  him  to  settle  with  his  workmen,  where  the 
defendant's  name  appears  not  as  being  charged,  but  only  as  explanatory  of 
the  other  entries,  is  incompetent  evidence  of  sales  to  defendant;  Rogers  and 
another  v.  Old,  5  Sergeant  &  Rawle,  404,  where  this  principle  is  established 
and  explained  by  Duncan,  J. ;  and  a  book  kept  by  a  contractor,  showing  the 
amount  of  work  done  and  by  whom,  but  which  did  not  purport  to  charge  the 
defendant,  but  seemed  to  be  an  account  against  labourers  employed  by  the 
contractor  in  the  work,  is  in  like  manner  inadmissible;  Alexander  v.  Hoff- 
man, 5  Watts  &  Sergeant,  382;  and  see  Smith  v.  Lane  and  another,  12  id. 
80,  and  Rhoads  v.  Gaul  et  al.,  4  Rawle,  404. — The  book  should  be  an 
oriyinalj  made  contemporaneously  with  the  transaction,  and  not  a  transcript 
or  digest  subsequently  made  up;  Vance  v.  Feariss,  1  Yeates,  321;  S.  C.  2 
Dallas,  217;  Rodman  et  al.  v.  Hoops's  Ex.  1  Dall.  85;  Fairchild  v.  Denni- 
son, 4  Watts,  258  :  but  if  entries  be  made  in  the  regular  account-book,  in 
proper  season,  from  memoranda  taken  at  the  time,  by  the  party  or  his 
assistant,  and  intended  to  serve  only  as  notes,  to  make  up  the  entries  more 
accurately,  the  book  is  an  original ;  Ingraham  v.  Bockius  and  another,  9 
Sergeant  &  Rawle,  285 ;  Patton  v.  Ryan,  4  Rawle,  408.     The  fact  that 
some  entries  in  the  book  are  not  original,  will  not  render  the  book  incompe- 
tent as  concerns  those  entries  which  are  proved  by  the  oath  of  the  party  to 
be  original.    Ives  v.  Niles,  5  Watts,  323 :  But  doubtless  it  would,  if  the  two 
classes  of  entries  could  not  be  distinguished :  Vance  v.  Feariss;   Kcssler  v. 
M'Conachy,  1  Rawle,  435,  441.     This  book  must  be  the  day-book,  and  not 


356  smith's   leading    cases, 

the  ledger;  Haramill  v.  O'Donnell,  2  Miles,  101 :  yet  if  the  book  be  properly 
authenticated  as  an  original,  it  is  not  an  objection  that  it  is  kept  in  the  led- 
ger-form ;  Thompson  v.  Hopper,  1  Watts  k  Sergeant,  467,  468;  Ilehrer  v. 
Zeigler,  3  id.  258 ;  Odell  v.  Cuthbert,  9  id.  66.     If  from  the  magnitude  or 
nature  of  the  transaction,  it  must  be  presumed,  or  if  from  notes  and  marks 
on  the  book  it  appear,  that  the  entries  are  made  in  another  book,  that  should 
be  produced,  that  the  party  may  have  the  benefit  of  all  the  items  therein  ; 
dictum  per  Duncan,  J.,  in  Rogers  v.  Old. — As  to  the  time  when  the  entries 
are  to  be  made :  as  the  purpose  of  the  entry  is  to  record  a  charge  on  the 
defendant,  the  entry  must  not  be  made  hefore  he  is  chargeable.     If  the 
entries  were  made  when  the  order  was  received,  before  the  delivery  was 
made,  the  book  is  incompetent:  and  an  arbitrary  mark  affixed  to  items,  to 
show  that  such  were  actually  delivered,  will  not  aid,  if  it  appear  by  the 
evidence  that  that  mark  was  not  to  charge  the  defendant  but  to  inform  the 
porter  not  to  make  a  double  delivery ;  Ilhoads  v.  Gaul  et  al.,  4  Rawle,  404; 
Thompson  v.  Bullock,  2  Miles,  269,  S.  P.;  the  fault  here  was,   that  the 
charges  were  made,  before  the  property  in  the  goods  was  changed  ;  "  the 
proper  time  for  making  the   entry,  is  at  or  about  the  time  when  there  is  a 
transmutation  of  property  from  the  vendor  to  the  vendee  ;"  Parker  v.  Don- 
aldson, 2  Watts  &   Sergeant,  9  :  and  entries  in   a  book  made  up   from  a 
memorandum,  which  was  not  itself,  a  memorandum  of  sales  actually  made, 
are  inadmissible;  because  the  entries  were  not  "made  in  the  book  as  a 
registry  of  sale  and  delivery  actually  made  of  the  things  therein  mentioned, 
at  the  time  of  their  being  so  entered :"  Fairchild  v.  Dennison,  4  Watts, 
258;  but  in  Kaughley  v.  Brewer,  16  Sergeant  &  Rawle,  133,  entries  by 
a  tailor  employed  to  make  up  cloth  left  by  the  defendant,  which  entries  were 
made  after  the  work  was  cut  out  by  him,  and  when  it  was  delivered  to  the 
journeymen,  such  being  the  plaintiif 's  manner,  (as  he  stated,)  of  keeping 
his  books,  and  such,  according  to  the  judge,  being  the  usual  practice  in 
that  and  other  professions,  were  deemed  admissible  :  this  decision,  which  is 
wholly  irreconcileable  with  either  legal  principle  or  common  sense,  professes 
to  be  governed  by  the  case  of  Curren  v.  Crawford;  and  since  the  true  ground 
on  which  that  case  rests,  has  been  ascertained  in  Parker  v.  Donaldson,  it 
would  be  difficult  to  contrive  a  specious  argument  in  support  of  Kaughley 
V.  Brewer ;  and  we  may  safely  conclude  that  it  is  not  law  ;  as  to  the  value  of 
such  a  custom,  even  had  there  been  any  evidence  of  it,  see  Sterrett  v.  Bull, 
1  Binney,  and  Forsythc  v.  Norcross.     In  Keim  v.  Rush,  5  Watts  &  Ser- 
geant. 377,  it  was  decided  that  when  goods  are  delivered  to  a  carrier  to  be 
carried  to  a  distance,  the  proper  time  to  make  the   entries,  is  when  the  car- 
rier's wagon  is   loaded  and  started  :  in  Koch  v.  Howell,  6  id.  350,  the 
plaintiff  was  a  vendor  of  paper  and  a  paper-hanger,  and  in  one  column  of 
his  book,  noted  the  whole  amount  delivered  out  to  his  workmen,  and  in  sub- 
sequent columns  the  number  of  pieces  used   and   the   prices   for  hanging 
them ;  and  the  court  said  that  the  entries  in  the  first  column  alone  might 
have  been  insufficient  to  charge  the  defendant,  but  the  other  entries  having 
been  made  when  the  paper  had  come  to  the   defendant's  use,  and  its  quan- 
tity was  ascertained  by  hanging  it,  were  perfectly  regular  and  legal.     The 
entries  must  not  be  made  too  long  after  the  time  when  the  right  to  charge 
accrued:  th.Q jyrinciple  o\i  that  subject,  often  approved  since,   is  thus   de- 
clared in    Curren  v.   Crawford,  4  Sergeant  &  Rawle,  3  :   "  The  law  fixes 
no  precise  instant  when  the  entry  should  be  made.     At  or  near  the  time 


1 


PRICE  V.  THE  EARL  OF  TORBINGTON.       357 

of  the  transaction,  tliey  should  be  made.  It  is  not  to  be  a  register  of  past 
transactions,  but  a  memorandum  of  transactions  as  they  occur."  In  Jones 
V.  Long,  3  Watts,  325,  this  doctrine  is  repeated ;  and  though  later  cases 
have  appeared  to  recognize  a  stricter  and  arbitrary  limit,  a  loview  of  them 
will  show,  that  the  rule  has  not  been,  and  cannot  be  established  with  any 
greater  precision.  In  Patton  v.  Ryan,  4  Rawle,  408,  where  the  plaintiff  said 
she  first  made  the  entries  on  a  card,  and  then  copied  them  into  the  book, 
"  either  the  same  evening,  or  the  next  day,  or  as  soon  after  as  I  conveni- 
ently could,"  no  objection  was  made  on  the  ground  of  delay.  In  Kesslcr 
V.  M'Conachy,  1  id.  435,  the  party  stated  that  the  entries  were  first  made 
by  his  journeyman  on  a  slate,  and  thence  copied  by  himself,  sometimes  the 
same  evening,  some  of  them  in  the  week,  none  as  long  after  as  two  weeks ; 
the  court  decided  the  book  to  be  inadmissible  :  and  though  there  is  a  dictum 
that  to  admit  entries  which  had  been  made  after  a  week  or  more  would 
cause  mistakes,  yet  the  ground  on  which  the  rejection  of  the  books  is  really 
rested  in  the  opinion  of  the  court  is,  that  the  transfer  of  the  book  was  not 
made  and  verified  by  the  same  person  who  made  the  memoranda  on  the 
slate ;  or,  that  that  circumstance,  together  with  the  delay  in  the  transcrip- 
tion ("and  there  several  objections  besides,)  necessarily  took  away  the  con- 
fidence in  the  book.  In  M'Coy  v.  Lightuer,  2  Watts,  347,  the  circum- 
stances as  to  this  seem  to  have  been  precisely  the  same,  excepting  that  here 
the  man  who  made  the  first  entries  on  the  slate  testified,  as  well  as  the 
plaintiff,  to  the  facts ;  and  also  recollected  that  the  prices  of  the  work  done 
were  about  the  same  as  those  charged ;  the  court  held  the  evidence  admis- 
sible upon  the  distinction  that  in  Kessler  v.  M'Conachy,  the  journeyman 
was  not  produced,  but  here  the  party's  oath  was  fortified  by  the  oath  of  the 
man  who  made  the  entries  and  did  the  work,  and  that  he  also  confirmed  the 
accuracy  of  the  prices  charged.  The  case  is  certainly  not  a  strong  one ; 
yet  it  is  a  decision  directly  on  the  point,  that  a  week's  delay  in  trans- 
ferring entries  from  a  slate,  does  not  render  a  book  of  entries  incompetent, 
and  is  far  stronger  than  any  authority  in  Kessler  v.  M'Conachy  to  the 
contrary  on  that  p)oint.  In  Vicary  v.  Moore,  2  id.  451,  the  book  was 
made  up  from  entries  on  loose  scraps  of  paper,  carried  in  the  pocket  one, 
two,  three,  or  four  days;  the  court  held  the  books  so  made  up  to  be  incom- 
petent; and  said,  per  Gibson,  C  J.,  that  if  the  entries  were  not  made  at 
the  time,  they  ought  certiiinly  to  be  made  in  the  regular  routine  of  business, 
and  that  here  neither  the  routine  of  the  party's  business,  nor  any  other  cir- 
cumstances accounted  for  the  delay.  Th.&  principle  veaWj  decided  in  these 
cases  appears  simply  to  be,  that  in  applying  tho  two  principles  recognized 
in  Curren  v.  Crawford,  and  Ingraham  v.  Bockius,  the  court  will  be  guided 
by  the  consideration,  whether  the  first  memoranda  were  made  on  such 
material,  prepared  with  such  care,  and  transcribed  under  such  circum- 
stances, that  the  book  entries  may  reasonably  be  relied  on.  Forsythe  v. 
Norcross,  5  id.  432,  would  be  more  satisfactory,  if  we  knew  what  authority 
is  to  be  attached  to  a  per  curiam  decision,  and  if  the  circumstances  of  the 
case  were  more  fully  and  distinctly  stated :  the  plaintiff,  a  blacksmith, 
having  sworn  to  his  book  of  entries,  said  that  he  made  the  entries  on  a  slate 
till  it  was  full,  and  then  after  four,  five,  or  six  days,  transcribed  them  into 
his  book ;  and  he  and  three  other  witnesses,  blacksmiths,  swore  that  this 
was  a  general  custom  as  far  as  they  knew  :  "  Per  curiam  :  an  entry  on  a 


358  smith's    leading   cases. 

card  or  slate,  is  but  a  memorandum,  preparatory  to  permanent  evidence 
of  the  transaction,  which  must  be  perfected  at  or  near  the  time,  and  in  the 
routine  of  business.      But  the  routine  must  be  a  reasonable  one  ;  for  there 
is  nothing  in  the  condition  of  a  craftsman  to  call  for  indulgence  till  his  slate 
be  full,  or  till  it  be  convenient  for  him  to  dispose  of  the  contents  of  it. 
*         *       The  entries  ought,  in  every  instance,  to  be  transferred  in  the 
course  of  the  succeeding  day.     *     *     On  the  principle  of  Vicary  v.  Moore, 
the  book  was,  in  the  present  instance,  incompetent."     The  dictum  in  this 
case  was  acted  on  in  Cook  v.  Ashmead  et  al.,  2  Miles,  268,  (1838,)  and 
entries  which  had  been  transferred  from  a  memorandum-book,  some  on  the 
first,  some  on  the  second,  and  others  on  the  third  dny  after,  were  held 
incompetent.     But  as  Forsythe  v.  Norcross,  is  expressed  to  be  ruled  by 
Vieary  v.  Moore,  it  would  seem  that  the  circumstances  of  the  first  entries 
having  been  made  on  so  uncertain  a  record  as  a  slate,  must  have  had  much 
to  do  with  influencing  that  decision ;  as  well  as  the  fact  that  the  delay  was 
very  considerable  and  very  irregular.     In  Walter  v.  Bollman,  8  "Watts,  544, 
(1839,)  after  the  case  was  decided  on  other  grounds,  there  is  a  dictum,  per 
curiam,  that  "  certainly,  more  than  one  day  ought  not  to   intervene,"  (the 
entries  being  made  from  memory)  "  unless  there  was  something  very  pecu- 
liar in  the  nature  of  the  business."     But  in  a  later  case,  this  limitation  is 
entirely  disregarded  by  the  same  "  per  curiam"  by  which  it  was  made.      In 
Hartley  v.  Brooks,   6  Wharton,  189,  (1841)  two  books  of    entries   were 
ofi'ered;  as  to  one  of  them,  the  plaintifi*  testified  that  some  of  the  entries 
"  were  made  the  first,  and  some  the  second  day  after  I  had  done  the  work ;  not 
later  than  the  second  day  in  the  evening;"  and  that  some  were  taken  from  his 
head,|and  some  from  a  slate,  and  that  all  were  made  by  himself;  the  other  book 
was  oljjected  to  on  another  account.     "  Per  Curiam  : — There  is  nothing 
to  distinguish  the  case  from  others  in  which  such  entries  as  these  have  been 
received.      *      *      In  Kessler  v.  M'Conachy,  no  more  was  ruled  than  that 
the   transfer  was    too   late   at   the  expiration    of  nearly  two  weeks."     In 
Swearingen  v.  Harris,  1  Watts  &  Sergeant,  359,  in  respect  to  the  books  of 
one  deceased,  the  court  said,  the  evidence  "  showed  that  it  was  the  general 
practice  of  the  intestate  to  make  his  entries  on  a  slate,  and  afterwards  draw 
them  off"  in  his  books ;  and  that  this  sometimes  was  not  done  until  two  or 
three  days.     If  it  had  been  proved  that  the  same,  practice  was  pursued  as 
regards  this  account,  it  would  be  doiditful  whether  the  evidence  could  be 
received."     These  decisions  are  not  irreconcileable.      The  two  last  clearly 
show  that  the  dicta  that  the  entries  "ought"  to  be  made  or  copied  during 
the  next  day,  are  not  to  be  taken  as  deciding  that  they  must  be  made  within 
that  time,  in  orj^er  to  be  competent,  but  only  as  saying,  they  would  be  better 
if  made  in  that  time.     The  cases  are  reconciled  by  considering  the  ride  of 
law  to  be,  as  declared  in  Curren  v.  Crawford,  and  that  the  application  of  it 
is,  in  every  case,  to  be  determined  by  the  court  under  the  circumstances. 
In  short,  the  principle  on  this  subject  seem  to  be  stated   with   precise  and 
very  felicitous   accuracy,  by   Mr.  Justice   Sergeant,  in  Jones  v.  Long,  3 
Watts,  325  ;   "  the  entry  need  not  be  made  exactly  at  the  time  of  the  occur- 
rence; it  suffices  if  it  be  within  a  reasonable  time,  so  that  it  may  appear  to 
have  taken  place  while  the  memory  of  the  fact  was  recent,  or  the  source 
from  which  a  knowledge  of  it  was  derived,  was  unimpaired.     The  law  fixes  no 
precise  instant  when  the  entry  should  be  made.     If  done  at  or  about  the 


PRICE     V.     THE     EARL     OF     TORRINGTON.  359 

time  it  is  sufficient."  A  principle  so  strongly  founded  iu  good  sense,  and 
so  consistent  with  what  has  been  decided  in  other  states,  cannot  be  con- 
sidered as  iu  any  degree  shaken  by  loose  dicta  in  later  cases ;  especially, 
when  those  dicta  have  subsequently  been  thrown  aside  with  utter  contempt 
by  the  court  that  made  them. — In  addition  to  the  points  which  have  been 
mentioned  as  affecting  the  admissibility  of  a  book,  it  has  been  decided  that, 
"  a  book  of  entries,  manifestly  erased  and  altered  in  a  material  point,  cannot 
be  permitted  to  go  to  the  jury  as  a  book  of  original  entries,  and  ought  to  be 
rejected  by  the  court,  unless  the  plaintiff  give  an  explanation  which  does 
away  with  the  presumption  which  must  exist  on  its  face  ;"  Churchman  v. 
Smith,  6  Wharton,  14G  ;  but  if  the  alterations  are  explained  to  the  satisfac- 
tion of  the  court,  the  book  may  be  admissible  ;  Kline  v.  Gundrum,  1  Jonee, 
243,  249. — A  book  which  wants  any  of  the  qualities  above  indicated,  is 
incompetent.  Is  has  been  said,  '''  If  the  book  appear,  on  investigation 
of  the  party  by  the  court,  not  to  be  a  legal  book  of  entries,  the  court 
may  reject  it  as  incompetent.  If  this  does  not  appear  clearly,  it  is  to  be 
submitted  to  the  jury  to  decide  on ;"  Curren  v.  Crawford ;  with  instruc- 
tions of  course,  in  the  latter  case,  to  disregard  it  entirely,  if  they  find  against 
it;  Rodman  et  al.  v.  Hoop's  Ex'rs,  1  Dallas,  85,  But  where  the  evidence 
is  not  conflicting,  the  practice  has  long  been  for  the  court  alone  to  decide 
upon  the  subject;  see  Churchman  v.  Smith.  It  is  not  necessary  to  the 
competency  of  a  book,  that  the  party  should  bo  without  a  clerk  or  porters ; 
nor  is  it  necessary  that  the  entries  should  be  made  from  the  party's  own 
knowledge ;  if  made  from  returns  given  by  servants,  it  is  enough  ;  Ingra- 
ham  V.  Bockius  and  another ;  Jones  v.  Long. — The  party,  in  support  of 
his  book,  is  to  be  sworn  on  his  voir  dire,  and  can  only  be  examined  as  to 
whether  his  book'is  a  book  of  original  entries,  and  whether  the  entries  were 
made  at  the  time  they  bear  date  :  but  being  a  party,  he  cannot  be  examined 
generally  by  the  other  side,  without  his  own  consent:  Shaw  and  another  v. 
Levy,  17  Sergeant  and  Rawle,  99;  Stockton  &  Stokes  v.  Demuth,  7  Watts, 
39,  42.  The  authentication  of  the  handwriting  is  the  main  support  of 
the  evidence ;  as  is  said  in  Rhoads  v.  Gaul  et  al.,  "  the  genuineness  of  the 
writing  must  be  proved,  in  order  to  raise  a  presumption  that  the  transaction 
was  in  the  usual  course  of  business.^'  Therefore,  entries  to  which  a  party 
swears  must  be  in  his  own  handwriting  :  if  the  party  who  made  them  be 
dead,  or  out  of  the  state,  the  books  are  admissible,  upon  proof  of  his  hand- 
writing; Van  Swearingen  v.  Harris,  1  Watts  &  Sergeant,  359;  Alter  v. 
Berghaus,  8  Watts,  77 ;  Odell  v.  Culbert,  9  Watts  &  Sergeant,  60, :  if  the 
entries  were  made  by  a  clerk,  he  should  be  called ;  or  if  dead  or  out  of  the 
state,  his  hand  may  be  proved ;  Sterritt  v.  Bull,  1  Binney,  234.  If  tjie 
eii^-ies  are  made  by  a  clerk  who  is  absent  at  the  time  of  the  trial,  his  character 
for  honesty  may* be  impeached;  and  if  made  and  sworn  to  by  the  plaintiff, 
the  evidence  may  be  discredited  by  showing  that  he  is  unworthy  of  credit 
on  his  oath,  and  that  his  books  are  notoriously  unworthy  of  confidence,  and 
to  establish  the  latter  point,  particular  acts  of  irregularity  in  keeping  them 
may  be  shown  ;  Grouse  and  another  v.  Miller,  10  Sergeant  &  Rawle,  155  ; 
Barber  v.  Bull,  7  Watts  k  Sergeant,  391.  And  see  in  confirmation  of  this, 
Losee  v.  Losee,  2  Hill's  N.  Y.  GIO,  and  note.  In  Haughey  v.  Stricklcr,  2 
Yfatts  &  Sergeant,  411,  it  being  shown  that  the  clerk  of  the  plaintiff  was 
dead,  the  ijlaintiff  appears   to  have  been  allowed  to  prove  his  handwriting, 


360  smith's   leading    cases. 

and  verify  the  books ;  and  in  Scagrove  v.  Ecdman  et  al.,  4  Dallas,  153,  in 
case  of  a  foreign  transaction,  the  same  thing  was  allowed.  It  is  not  nec(^s- 
sarythat  the  person  who  makes  the  entries  should,  with  his  own  hands,  have 
delivered  the  goods ;  Kline  v.  Gundrum,  1  Jones,  243,  244.  "Whether,  or 
when,  a  cojyy  of  regular  books  is  to  be  received,  is  not  settled  :  it  has  been 
held  that  the  original  books  of  merchants  abroad  cannot  be  required,  and 
that  true  abstracts,  with  the  oath  of  the  clerk,  or  proof  of  his  handwriting, 
are  admissible;  Bell  k  Decker  v.  Keely,  2  Ycates,  255;  see  Euddcn  v. 
Pctriken,  5  Watts,  286. — A  plaintiff  is  not  bound  to  put  his  books  in 
evidence,  nor  is  he  concluded  by  them;  the  claim  may  be  proved  in  other 
ways ;  Adams  v.  Columbia  Steamboat  Company,  3  Wharton,  75  ;  Filler  v. 
Beckley,  2  Watts  &  Sergeant,  458. 

In  South  Carolina,  the  early  statutes  recognise  the  admissibility  of  the 
books  of  merchants,  shopkeepers,  and  others,  the  party  swearing  to  them ; 
and.  this,  on  the  ground  of  convenience  and  necessity.  See  1  Brevard's 
Digest,  315,  tit.  74;  and  Clough  v.  Little,  3  Richardson,  353.  It  has  been 
decided  that,  notwithstanding  the  statute  of  James  I.,  books  are  evidence 
beyond  the  year;  and  the  evidence  is  applicable  not  only  to  goods  sold,  but 
to  work  done  and  articles  furnished :  Lamb  v.  Hart's  Adm'rs,  1  Brevard, 
105.  For  example;  the  books  of  a  carpenter,  Slade  v.  Teasdale,  2  Bay, 
172;  of  a  bricklayer.  Lynch  v.  Petrie,  1  Nott  &  M'Cord,  130;  or  other 
mechanic,  Land  v.  Hart's  Adm'rs,  2  Bay,  362,  1  Brevard,  105,  S.  C;  of 
a  ferryman,  to  establish  charges  for  ferriage,  Frazier  v.  Drayton,  2  Nott  & 
M'Cord,  471 ;  of  a  physician,  for  services  and  medicine,  M'Bride  v.  Watts, 
1  M'Cord,  384;  Lance  v.  M'Kenzie,  2  Bailey,  449;  of  a  miller  to  show 
the  quantity  of  lumber  delivered  from  the  mill,  Gordon  v.  Arnold,  1  M'Cord, 
517;  of  a  printer,  to  show  charges  for  advertising,  and  for  delivering  a 
newspaper,  Thomas  v.  Dyott,  1  Nott  &  M'Cord,  186;  though,  in  a  later 
case,  it  was  held  that  the  printer's  books  might  be  evidence  of  the  autho- 
rity to  advertise,  but  that  to  prove  that  the  advertisements  were  actually 
made,  the  file  of  papers  should  be  produced,  as  being  better  evidence ; 
Richards  v.  Howard,  2  id.  474;  and,  apparently,  the  books  of  a  seine- 
maker,  Story  V.  Perrin,  2  Mills's  Con.  R.  220;  have  all  been  held  admissible 
evidence.  But  the  courts  will  no£  go  beyond  the  necessity  on  which  the 
practice  is  founded,  Everingham  v.  Langton,  2  M'Cord,  157:  they  hold  that 
this  species  of  evidence  ought  not  to  be  allowed  where  it  is  in  the  power  of 
the  party  to  produce  other  evidence;  Thomas  v.  Dyott,  1  Nott  &  M'Cord, 
186;  and  it  is  proper  only  "where  the  party  himself  is  the  best  or  only 
witness  the  nature  of  the  case  admits  of;"  Lamb  v.  Hart's  Adm'rs,  1  Bre- 
vard, 105.  Accordingly,  a  schoolmaster's  books,  though  regularly  kept,  are 
not  evidence  to  prove  his  account,  because,  as  he  must  have  many  witnesses 
at  command,  the  evidence  of  his  books  cannot  be  necessary ;  Pelzer  v. 
Cranston,  2  M'Cord,  328;  a  jailor's  books  are  not  evidence  to  prove  the 
length  of  time  a  person  has  been  in  confinement,  because  they  are  "not  the 
best  evidence  the  nature  of  the  case  admits,"  Walker  v.  M'Mahan,  3  Bre- 
vard, 251 ;  a  scrivener's  books  are  not  admissible,  especially  if  offered  to 
prove  what  commissions  were  to  be  allowed  on  moneys  received,  Watson  v. 
Bigelow,  2  id.  127;  and  by  a  majority  of  the  court,  the  books  of  account 
of  a  fiu'mer  or  planter  are  not  admissible  in  evidence  to  prove  the  delivery 
and  sale  of  articles,  Jeter  v.  Martin,  id.  156;  2  Bay,  173,  S.  C.     In  Thayer 


I 


PRICE    V.     THE    EARL     OF     TORRINGTON.  361 

V.  Dean,  2  Ilill,  G77,  (1835,)  it  was  again  said  that  the  rule  rests  in  neces- 
sity, and  is  not  to  be  extended  :  and  in  this  case,  the  memorandum-books  of 
a  pedlar  were  rejected.  Such  persons,  it  is  said,  usually  do  not  deal  on 
credit,  and  cannot  conveniently  keep  books.  They  do  not  fall  within  that 
class  of  persons,  (said  Johnson,  J.,  with  whom  the  other  judges  concurred,) 
in  whose  pursuit  or  employment,  convenience  or  the  usage  of  the  country, 
imposes  the  necessity  of  keeping  books  of  account.  They  do  not,  therefore, 
fall  within  the  principle  of  the  rule;  and  believing  that  it  has  already  been 
extended  too  far,  I  am  not  disposed  to  superadd  this  item  to  the  long  list 
of  suspicious  evidence."  The  books  of  a  billiard-table-keeper  are  not  evi- 
dence, partly  because  the  charge  is  neither  for  work  done  nor  goods  delivered, 
and  partly  as  being  against  good  morals ;  Boyd  v.  Ladson,  4  M'Cord,  76, 
where  a  strong  disposition  is  shown  to  restrict  this  sort  of  evidence ;  but 
when  the  latter  objection  was  made  in  case  of  the  charges  for  spirituous 
liquors  in  small  quantities,  it  was  not  considered  sufficient ;  Plerlock  v. 
Riser,  1  id.  481. — As  to  the  purposes  for  which  books  of  entries  are  com- 
petent, the  principle  is,  that  they  are  evidence  to  prove  the  delivery  of  the 
article,  or  work  done,  and  nothing  more  :  and  the  recent  case  of  St.  Philip's 
Church  V.  White,  2  McMullan,  o06,  312,  limits  the  rule  very  strictly,  and 
determines  that  even  in  the  case  of  a  mechanic,  they  are  admissible  only 
where  the  work  is  done  in  the  plaintiff's  shop,  and  delivered  out;  and  not 
where  the  work  is  done  on  the  defendant's  premises,  as  in  building  or  re- 
pairing a  house  or  other  fixture,  as  there  can  be  no  necessity  for  such  evi- 
dence in  a  case  of  that  kind,  the  work  being  apparent  and  palpable,  and  the 
only  question  being  by  whom  and  for  whom  it  was  done  ;  neither  of  which 
are  proper  to  be  proved  by  this  evidence.  In  Grage  v.  M'llwain,  1  Strobhart, 
135,  138,  it  is  said,  <'  the  book  of  a  shopkeeper  or  tradesman  is  only  allowed 
to  prove  the  account  sued  for,  and  not  any  other  fact  which  may  arise  col- 
laterally in  the  case."  In  an  action  to  recover  compensation  for  the  labour 
of  a  slave,  memoranda  in  defendant's  books,  though  customary,  are  not 
evidence  to  show  on  what  days  the  slave  did  not  work;  M'Kewen  v.  Barks- 
dale,  2  Nott  &  M'Cord,  171.  Books  are  not  evidence  to  prove  or  contradict 
a  special  contract;  Pritchard  v.  M'Owen,  1  id.  131,  note;  and  with  this 
agrees  Deas  v.  Darby.  In  that  case  the  plaintiff,  a  tailor,  had  charged  the 
defendant  with  clothes,  (not  appearing  to  be  necessaries,)  made  for  and 
delivered,  by  his  direction,  to  his  ward ;  and  there  was  no  other  evidence 
than  the  plaintiff's  entries  and  oath.  The  court,  after  argument,  decided 
the  evidence  to  be  incompetent.  '<The  liability  of  a  defendant  to  pay  an 
open  account  of  a  merchant  or  shopkeeper,"  says  the  court  in  that  case, 
does  not  arise  merely  on  account  of  the  charge  against  him,  but  in  con- 
sequence of  the  delivery  of  the  goods  to  him,  or  to  his  servant  or  agent,  for 
his  use ;  or  in  other  words,  it  is  in  respect  of  the  consideration  which  he 
has  received ;  so  that  book-entries  prove  no  more  than  the  delivery  of  the 
article  charged.  Now,  if  from  these  it  appears  that  the  articles  were  deliv- 
ered to  another,  and  for  another's  use,  the  liability  ceases,  unles  he  is  liable 
on  some  other  special  contract;  and  if  a  merchant  were  allowed  to  make 
every  contract  the  subject  of  a  book-entry,  and  himself  to  prove  it,  the  com- 
munity would,  indeed,  be  at  their  mercy;"  Deas  v.  Darby,  id.  436;  con- 
firmed in  Brown  v.  Kinlock,  et  al.,  2  Spears,  284;  Kinlock,  Phillips  &  Co. 
V.  Brown,  1  Eichardson,  223.     This  principle  received  a  singular  applica- 


362  smith's    leading    cases. 

tion  in  Yenuing  v.  Hacker  &  Sniczer,  2  Hill,  584 ;  the  book  there,  was,  in 
part,  made  up  from  memoranda  made  by  the  dcfeudants  ;  and  these  entries, 
as  consisting  of  declarations  or  admissions  of  the  defendants,  the  plaintiff, 
on  the  authority  of  Dcas  v.  Darby,  was  held  incompetent  to  prove;  in  the 
same  case  it  was  said  the  plaintiff's  books  could  prove  a  delivery  only  by  him- 
self; and  if  the  entries  were  made  up  from  the  representations  of  a  slave,  they 
were  inadmissible.  See,  also.  Gage  v.  M'llwain,  1  Strobhart,  135.  In 
M'Bride  v.  Watts,  1  M'Cord,  384,  a  physician,  in  a  suit  against  a  captain,  for 
attendance  on  the  sailors,  was  allowed  to  prove,  by  his  books,  both  the  ser- 
vice rendered,  and  that  it  was  at  the  instance  of  the  defendant;  but  probably 
the  true  ground  of  that  decision  was,  that  when  the  service  was  proved,  the 
law  imposed  on  the  captain  the  liability  of  paying  for  it. — A  book  to  be 
admissible,  should  be  regularly  kept :  and  if  the  entries  appear  to  have  been 
made  -out  of  the  usual  course  of  business,  and  not  in  the  regular  order  in 
which  the  transactions  occurred,  the  books  are  to  be  rejected;  Lynch  v. 
M'Hugo,  1  Bay,  33;  Thayer  v.  Dean,  2  Hill,  677.  The  charges  must  be 
specific  and  particular :  and  a  general  charge  of  work  done,  or  services  ren- 
dered, at  such  a  time,  is  inadmissible ;  Lynch  v.  Petrie,  1  Nott  &  M'Cord, 
130;  Lance  v.  M'Kenzie,  2  Bailey,  449.  If  the  book  be  regularly  kept, 
and  be  a  book  of  original  entries,  and  not  made  up  of  transfers  from  another 
book  or  Uiemorandum,  it  will  be  admissible  whether  kept  by  double  or 
single  entry,  or  by  setting  a  part  a  page  or  a  portion  of  a  page  fur  each  cus- 
tomer, and  exhibiting  at  one  view  the  whole  account;  Toomer  v.  Gadsden, 
4  Strobhart,  193.  The  books  offered  in  evidence  must  be  produced  iu 
court;  for,  the  defendant  has  a  right  to  inspect  tLfem  in  court,  and 
attack  their  credit  for  any  want  of  regularity  or  fairness  apparent  on  the 
books  themselves;  Furman  &  Smith  v.  Pray,  2  id.  394.  K  some  of  the 
entries  have  been  made  in  a  way  to  render  them  incompetent,  and  there  is 
no  means  of  distinguishing  these  from  the  others  the  whole  book  is  to  be 
rejected;  Venning  v.  Hacker  &  Sniezer,  2  Hill,  584.  The  entries  should 
be  proved  by  the  oath  of  the  party  who  made  them  :  but  if  one  of  two 
partners,  plaintiffs,  has  made  the  entries,  and  is  dead  or  has  moved  out  of 
the  state,  the  other  partner  may  prove  his  handwriting;  Foster  v.  Sinklcr, 
1  Bay,  40;  White  v.  Murphy,  3  liichardson,  3G9;  and  under  circumstances 
which  excused  the  necessity,  third  persons  were  permitted  to  authenticate 
a  physician's  books,  he  having  moved  out  of  the  state ;  Spence  v.  Sanders, 
id.  119.  The  party  proving  his  books  may  be  cross-examined;  Clough  v. 
Little,  3  Bichardson,  353. 

The  law  of  Connecticut  differs  from  the  law  in  these  states,  only  in  the 
extent  to  which  the  party's  oath  is  allowed ;  a  deflection  occasioned  appar- 
ently by  statute;  iu  other  respects,  the  decisions  are  well  suited  to  illustrate 
the  true  character  of  this  evidence.  For  the  recovery  of  book-charges,  the 
action  of  book-debt  is  given  by  statute;  1  Swift's  Digest,  727;  and  the 
evidence  of  the  parties  recognized  as  admissible :  but  the  decisions  have 
placed  a  limit  to  the  evidence  which  the  parties  may  give.  They  may  testify- 
as  to  the  quantity,  quality,  and  delivery  of  the  articles ;  Phenix  v.  Pringle, 
Kirby,  207;  and  to  everything  tending  to  the  support  or  confutation  of 
the  account,  as  having  ever  created  a  legal  liability ;  accordingly,  a  plaintiff 
may  testify  to  the  acknowledgment  of  a  debt  made  by  the  defendant,  or  to 
facts  from  which  it  may  be   inferred ;  Johnson  v.  Gunn,  2   Boot,  130 ; 


PRICE    V.     THE     EARL     OF    TORRINGTON.  363 

Bryan  v.  Jackson,  4  Connecticut,  289;  Bradley  v.  Basset,  13  id.  5G0 ;  but 
if  issue  be  joined  on  some  collateral  matter,  as,  tender,  release,  accord  and  sat- 
isfaction, or  the  statute  of  limitations,  the  evidence  of  the  parties  is  not  ad- 
missible;  Weed  et  al.  v.  Bishop,  7  id.  128  ;  Terrill  v.  Beecher,  9  id.  344; 
nor  to  prove  any  special  agreement  or  promise ;  Johnson  v.  Gunn. — This 
action  and  the  evidence  of  book-entries,  are  permitted  only,  ^vhere  the  right 
to  charge  exists  at  the  time  of  delivery,  and  arises  in  consequence  of  the 
delivery;  Bradley  v.  Goodyear,  1  Day,  104;  and  therefore,  where  money 
had  been  sent  to  be  applied  in  payment  of  plaintiff's  note,  and  was  not  so 
applied,  it  was  not  allowed  to  be  recovered  in  this  action  or  by  this  species 
of  evidence,  because  the  delivery  of  the  money  gave  no  right  to  charge  it, 
but  the  right  to  recover  arose  from  subsequent  events;  ibid.  On  the  same 
principles,  where  the  right  of  action  arises  from  special  agreement,  and  the 
delivery  is  in  pursuance  of  it,  the  books  are  not  admissible ;  Terrill  v. 
Beecher,  9  Connecticut,  344;  Green  v.  Piatt,  11  id.  205;  Kirby,  158, 
289 ;  it  is  said,  by  Daggett,  J.,  in  Terrill  v.  Beecher,  that  this  action  will 
not  lie,  except  for  such  a  delivery  as  the  oaths  of  the  party  may  prove ; 
which  principle,  on  the  authority  of  Johnson  y.  Gunn,  throws  it  out  in  all 
cases  of  special  agreement  and  promises.  Charges  made  against  a  son,  may 
in  this  action,  be  recovered  against  the  father,  where  he  is  legally  bound  to 
pay  for  them ;  Bryan  v.  Jackson  :  this  action  and  evidence  are  not  appro- 
priate in  case  of  property  loaned  and  not  returned,  or  to  recover  for  torts, 
or  to  a  claim  by  use  and  occupation;  Beech  v.  Mills,  5  Connecticut,  493 ; 
but  they  are  for  money  lent;  Clark  v.  Savage,  20  id.  258.  In  case  of  death, 
charges  in  one's  books,  for  goods,  services,  and  money,  are  legal  evidence  to 
sustain  book-debt.     Dwight  v.  Brown,  9  id.  84. 

In  Delaware,  by  statute,  25  Geo.  2,  (Hall's  Kevised  Laws,  1829,  p.  89, 
tit..  Contracts,)  in  actions  for  articles  sold  and  delivered,  and  other  matters 
properly  chargeable  in  an  account,  the  oath  of  the  plaintiff,  together  with  a 
book  regularly  and  fairly  kept,  are  declared  to  be,  in  all  cases,  evidence  to 
charge  the  defendant.  It  is  considered  as  settled,  that  cash  is  not  a  matter 
properly  chargeable  in  account.  Smith  &  Brown  v.  M'Beath,  C.  P.  Kent, 
1814,  cited  1  Harrington,  346 :  lottery  tickets  are,  Bailey  v.  M'Dowel,  ib. ; 
Gregory  &  Co.  v.  Bailey's  adm'r,  4  id.  256,  263.  The  subscription  to  a 
paper  is  not  properly  proved  by  an  entry  in  a  book-account;  but  if  the 
subscription  be  established  by  other  proof,  the  annual  subscription  price,  it 
is  said,  might  form  a  proper  subject  for  a  book-entry ;  Ward  v.  Powell,  3 
id.  379,  381.  If  the  plaintiff  reside  in  the  state,  the  original  book  must 
be  produced,  and  supported  by  the  oath  of  the  party :  if  he  reside  out  of 
the  state,  the  practice  is  to  admit,  by  consent,  sworn  copies  of  the  entries, 
and  the  consent  of  the  defendant  will  be  presumed,  it  seems,  unless  he  give 
timely  notice  to  the  counsel  of  the  other  party  that  the  production  of  the 
original  books  will  be  required ;  but  if  such  notice  be  given,  the  original 
books  must  be  produced,  or  else  the  sale  and  delivery  of  the  articles  must 
be  proved  by  common  law  evidence ;  Craig  and  Sergeant  v.  Ptussell,  2  Id. 
353 ;  Fitzgibbon's  Adm'r  v.  Kinney,  3  id.  317.  In  Rowland  v.  Burton, 
2  id.  288,  a  notched  stick,  with  the  party's  oath  that  the  notches  were  made 
at  the  time  that  the  work  was  done,  was  admitted  as  a  good  hook  of  entries. 
In  this  way  the  plaintiff,  a  negro,  proved  an  account  running  through  two  or 
three  years,  consisting  of  a  number  of  items,  amounting  in  all  to  $25.40, 


364  smith's   leading    cases. 

and  recovered:  ^'he  vras  fully  examined  on  liis  lool-,  and  the  accuracy  of 
bis  entries  tested  by  an  account  made  out  from  it  some  time  before."  Scraps 
of  paper  and  even  a  single  bit  of  paper  about  two  inches  square,  have  been 
held  admissible  books;  Smith  v.  Smith's  Ex'x,  4  Harrington,  532;  Hall  v. 
Field,  id.  533,  note;  and  in  the  last  case,  it  is  said  that  in  Pennsylvania  a 
closet  door  with  chalks,  &c.  was  admitted !  The  plaintiff  may  prove  books  kept 
by  his  clerk  or  agent,  as  well  as  by  himself;  Webb  v.  Pindergrass'  Adm'x,  4 
Harrington,  439;  and  he  may  be  cross-examined;  Fredd  v.  Eves,  id.  385,  386. 

There  are  other  states  in  which  the  book  is  admitted  in  certain  cases,  but 
not  the  oath  of  the  party.  These  are  New  York,  Illinois,  New  Jersey, 
Georgia,  and  perhaps  Ohio. 

In  New  York  the  oath  of  the  party  is  not  received :  but  the  book  itself 
under  certain  restrictions,  is ;  and  this,  whether  the  party  is  a  merchant,  or 
engaged  in  other  business.  Sickles  v.  Mather,  20  Wendell,  72.  The  rule 
here  adopted  is,  that  the  evidence  should  be  received  only  upon  preliminary 
proof  that  the  books  offered  contain  original  entries,  made  by  the  party  him- 
self; that  they  are  fairly  kept;  that  the  party  had  no  clerk,  and  had  deal- 
ings with  the  person  charged ;  and  these  are  questions  upon  which  evidence 
is  to  be  adduced  to  the  court;  Larue  v.  Rowland,  7  Barbour's  S.  Ct.  108, 
110.  In  Case  v.  Potter,  8  Johnson,  211,  the  point  of  admissibility  was 
not  decided;  but  it  was  said  per  curiam,  that  though  from  the  usage  which 
had  crept  in,  a  shop-book  might  be  admitted  in  case  of  a  sale  and  delivery, 
yet  "  it  can  never  apply  to  a  charge  for  cash  lent,  but  only  to  the  regular 
entries  of  the  party,  in  the  usual  course  of  his  business."  In  Vosburgh  v. 
Thayer,  12  id.  461,  which  was  an  action  for  butcher's  meat  furnished  to 
the  defendant  and  his  family,  it  was  proved  by  several  witnesses  that  the 
plaintiff  had  been  in  the  daily  practice  of  supplying  them  with  meat  during 
the  period  for  which  he  claimed  payment;  it  was  proved  by  some  of  those 
who  had  dealt  with  him,  that  he  kept  just  and  honest  accounts  ;  and  it 
appeared  that  he  had  no  clerk ;  the  question  was  as  to  the  admissibility  of 
his  books  of  account.  The  court  held  it  too  late  to  question  the  competency 
of  such  evidence.  They  said,  (per  Curiam)  that  such  books  ''are  not 
evidence  of  money  lent;  because  such  transactions  are  not,  in  the  usual 
course  of  business,  matter  of  book  account.  They  are  not  evidence  in  the 
case  of  a  single  charge,  because  there  exists  in  such  case,  no  regular  deal- 
ing between  the  parties.  They  ought  not  to  be  admitted  where  there  are 
several  charges,  unless  a  foundation  is  first  laid  for  their  admission,  by  prov- 
ing that  the  party  had  no  clerk;  that  some  of  the  articles  charged  have  been 
delivered ;  that  the  books  produced  are  the  account-books  of  the  party,  and 
that  he  keeps  fair  and  honest  accounts;  and  this  by  those  who  have  dealt 
and  settled  with  him.  Under  these  restrictions,  from  the  necessity  of  the 
case,  and  the  consideration  that  the  party  debited  is  shown  to  have  reposed 
confidence,  by  dealing  with  and  being  intrusted  by  the  other  party,  they  are 
evidence  for  the  consideration  of  the  jury."  Platt,  J.,  dissented,  totis 
viribus,  from  the  whole  principle  of  admissibility;  holding  it  novel,  danger- 
ous, and  not  to  be  justified  by  necessity.  In  M'Alister  v.  lleab,  4  Wendell, 
483,  the  point  was  touched,  but  nothing  was  decided.  In  Linnel  and  Foot 
V.  Southerland,  11  id.  668,  an  action  for  articles  and  work,  the  deliery  of 
one  article,  and  the  doing  of  one  item  of  the  work,  and  the  prices,  were 
proved  :  "  the  books  of  account  of  the  plaintiffs  were  then  produced,  and  it 


PRICE    V.     THE    EARL    OF     TORRINQTON.  365 

■was  proved  by  two  witnesses  who  had  dealt  and  settled  with  the  plaintiffs, 
that  they  kept  fair  and  honest  books,  and  that  during  the  time  the  account 
against  the  defendant  accrued,  they  had  no  clerk  :"  the  court,  on  error,  held 
the  evidence  competent ;  whether  sufficient,  was  not  a  question  for  them. 
In  Merrill  &  al.  v.  The  Ithaca  and  Owego  R.  R.  Co.,  16  id.  587,  a  suit  for 
work  and  labour,  certain  check-rolls  kept  by  the  plaintiff  or  his  assistants 
to  show  the  number  of  days  the  men  employed  by  him  worked,  were  held 
inadmissible  as  books  of  account,  on  the  following  grounds,  derivable  from 
the  decisions  of  New  York  and  other  states  :  "  1.  Because  the  plaintiffs 
had  clerks  and  other  witnesses  of  the  labour ;  2.  They  were  not  the  general 
books  of  daily  account  of  the  plaintiffs;  and  there  was  no  trust  implied, 
that  they  should  keep  these  accounts  for  the  defendants.     3.  It  is  not  a 
simple  case  of  charge  for  services  done  on  a  quantum   meruit,  known  and 
recognized  as  such  by  both  parties   at  the   time.      Charges  for  any  thing 
done  or  delivered  under  a  supposed  special  contract,  but  which  afterwards 
becomes  matter  of  account  by  operation  of  law,  in  consequence  of  a  rescission 
of  the  contract,  (the  case  in  hand)  cannot  be  proved  by  the  party's  book. 
There  must  be  a  right  to  charge,  when  the  service  is  done,  or  the  goods 
delivered."      In  Sickles  v.   Mather,  20  id.  72,   the  rule  of  Vosburgh   v. 
Thayer  is  adopted;  the  reason  of  requiring  proof  that  no  clerk  was  kept,  is 
said  to  be  that  the  books  are  secondary  evidence,  and  not  admissible  till  it 
is  shown  that  the  primary  and  better  evidence  of  a  clerk  cannot  be  had ; 
but  a  foreman,  who  only  delivers  goods,  and  notes  the  delivery  on  a  slate 
from  which  the  plaintiff  makes  up  his  books,  is  not  a  clerk  within  this  rule, 
and  the  books  in  such  case  are  admissible  :  in  this  case,  moreover,  the 
memoranda  were  made  by  the  foreman  on  a  slate,  and  thence  transcribed  by 
the  plaintiff  into  his  book;   ''the  plaintiff  used   to  take  the   slate   home, 
sometimes  every  day,  and  sometimes  every  two  or  three  days,  as  was  found 
convenient,  for  the  purpose  of  transcribing;"  and  the  court,  after  reviewing 
the  cases  in  other  states,  held  this  to  be  no  objection;  and  they  observe, 
respecting  these  petty  restrictions,   "  The  rule  which  receives  the  party's 
books,  even  with  his  oath,  seems  to  be  regarded  as  of  questionable  policy,  if 
we  are  to  judge  of  the  language  of  the  courts  and  the  course  of  decision  in 
several  states  where  it  prevails.      In  some,  they  appear  disposed  to  load  it 
with  a  multitude  of  restrictions  as  to  the  kind  of  business  in  respect  to  which 
the  books  are  to  be  received,  and  the  manner  in  which  they  are  kept,  and 
the  probability  that  better  evidence  may  be  had,  &c.      The  rule  is  undoubt- 
edly a  departure  from  the  common  law,  and  may  be  a  dangerous  one;  but 
that  is  rather  an  argument  for  repudiating  it  altogether  than  attempting  to 
mitigate  its  virulence  by  feeble  palliatives."     In  Larue  v.  Rowland,  7  Bar- 
bour's S.  Ct.,  107,  it  was  decided,  that  cdl  the  books  in  which  the  account 
between  the  parties  has  been  kept,  must  be  given  in  evidence,  and  that  one 
account  book  is  not  admissible  by  itself,  if  it  appear  that  the  account  was 
continued  in  another  book,  which  is  not  produced.     And  in  this  case,  the 
court  said,  "  Books  of  account  are  received  in  evidence,  only  upon  the  pre- 
sumption  that  no   other  proof  exists.       They  are  justly   regarded  as   the 
weakest  and  most  suspicious  kind  of  evidence.    The  admission  of  thera  at  all, 
is  a  violation  of  one  of  the  first  principles  of  the  law  of  evidence,  which  is, 
that  a  party  shall  not  himself  make  evidence  in  his  own  favour.     The  prac- 
tice of  admitting  such  evidence  is,  I  believe,  universally  adopted.    It  is  said 


36G  smith's    leading    cases. 

that  it  h;is  its  origin  iu  a  kind  of  '  moral  necessity/  anJ  that  such  is  the 
general  course  of  business,  that  no  proof  could  be  furnished  of  the  frequent 
small  transactions  between  men,  without  resorting  to  the  entries  which  they 
themselves  have  made,  in  the  form  of  accounts.  The  practice  can  only  be 
justified  upon  the  ground  that,  without  such  evidence  there  would,  in  many 
cases  be  a  total  failure  of  proof.  It  may  be  added,  that  it  has  been  often 
doubted,  by  those  too,  who  have  bad  the  best  opportunities  for  observing  the 
facilities  for  fraud,  which  this  loose  species  of  evidence  affords,  and  the 
abuses  which,  in  inferior  courts,  have  been  perpetrated  under  it,  whether  it 
would  not  have  been  more  wise,  to  have  excluded  such  evidence  altogether. 
At  the  very  best  it  is  but  presumptive  evidence,  and  that,  too,  of  the  very 
lowest  grade.  It  should  always  be  received  with  extreme  caution,  and  be 
subjected  to  the  strictest  scrutiny."  It  was  added  also,  that  if  any  fraudu- 
lent circumstances  were  proved,  as,  that  material  and  gross  alterations  were 
made,  or  entries  inserted  ^os<  litem  onotam,  or  not  at  or  near  the  time  of  the 
transaction,  or  any  thing  shown  which  made  the  books  unworthy  of  credit, 
it  is  the  duty  of  the  court  to  reject  the  evidence  as  incompetent,  and  leave 
the  party  to  his  common  law  proof. 

In  Illinois  the  New  York  rule  is  adopted,  and  it  has  been  decided,  that 
in  case  of  open  accounts,  composed  of  many  items,  where  the  entries  are  iu 
the  plaintiff's  own  handwriting,  and  he  kept  no  clerk,  and  it  is  proved  by  a 
witness  who  had  settled  with  the  plaintiff  on  the  book,  that  it  is  fair  and 
correct,  and  it  is  proved  also  that  part  of  the  articles  were  delivered,  the 
plaintiff's  book  of  accounts  is  admissible;  but  this  will  not  apply  to  an 
account  for  money  lent,  as  that  is  not  usually  the  subject  of  a  charge  in 
account,  notes  being  generally  taken;  nor  to  an  account  containing  a  single 
charge  only,  as  that  would  show  no  regular  dealings  between  the  parties ; 
Boyer  v.  Sweet,  3  Scammon,  120. 

In  New  Jersey,  (where,  in  like  manner,  the  party's  oath  is  not  received, 
but  his  book  and  handwriting  must  be  proved  by  a  witness)  books  are 
evidence  of  work  done  and  articles  delivered :  as  to  cash,  it  is  certain  that 
of  a  single  charge  they  are  not  evidence.  Carman  v.  Dunham,  6  Halsted, 
189;  and  it  appears  to  be  admitted  that  of  two  or  three  standing  alone 
they  are  not  evidence ;  yet  where  there  have  been  miscellaneous  dealings 
between  the  parties,  and  there  are,  among  other  charges,  entries  of  cash 
lent,  which  appear  to  have  been  in  the  course  of  business  and  are  according 
to  custom,  the  practice  has  been,  especially  in  earlier  times,  to  admit  the 
books.  Craven  v.  Shaird,  2  Halsted,  345 ;  Wilson  v.  Wilson,  1  id.  95 ; 
but  in  the  latter  case,  FoRD,  J.  was  strongly  against  the  admissibility  of 
such  items;  and  the  able  opinion  of  Chief  Justice  Hornblower  in  Carman 
v.  Dunham,  shows  clearly  that  the  principle  of  admitting  them  is  wrong. 
The  entries  ought  to  be  original  entries,  "  made  at  the  time  the  transaction 
took  place,  or  as  nearly  at  the  time  as  is  usual,"  per  Ford,  J.  in  Wilson  v. 
Wilson ;  and  in  Ilagaman  v.  Case,  1  Southard,  370,  Kirkpatrick,  C.  J., 
said  the  prices  ought  to  be  stated  in  the  book  :  an  account  made  up  all  at 
one  time,  without  showing  them,  whether  it  be  in  a  book  of  entries  or  out 
of  it,  is  inadmissible;  Wilson  v.  Wilson;  Swing  v.  Sparks,  2  Halsted,  59. 
Charges  need  not  be  entered  on  the  very  day  they  are  incurred;  and  two 
or  three  days'  services  may  be  entered  in  one  charge ;  Bay  v.  Cook,  2  Za- 
briskie,  343,  353.     Accounts  kept  ledger-wise  have  been  admitted,  "  if  it 


PRICE    V.    THE    EARL     OF     TORRINGTON.  367 

appeared  to  be  the  general  mode  in  which  the  party  keeps  his  books,  hut 
not  otherwise;  and  even  then  with  great  caution,  and  giving  them  little 
consideration  without  concurring  circumstances  to  strengthen  them,  and 
give  them  weight,"  per  Kirkpatrick,  C.  J.,  in  Wilson  v.  "Wilson.  In 
Jones  V.  De  Kay,  Pennington,  955,  it  was  held,  that  the  facts,  that  some 
leaves  had  been  cut  out  of  the  book,  and  that  the  account  was  kept  ledger- 
wise,  did  not  render  it  inadmissible,  and  that  the  credit  due  to  it  was  for 
the  determination  of  the  jury.  In  Leveringe  v.  Dayton,  4  Washington  C. 
C.  R.  698,  the  plaintiff's  ledger  was  offered  with  a  debit,  ''To  duties  S1602  ;" 
and  Judge  Rossel  cited  a  case  in  which  such  evidence  has  been  admitted 
and  the  judgment  for  that  reason  reversed,  in  the  Supreme  Court  of  New 
Jersey;  and  upon  that  authority.  Judge  Washington  rejected  the  evi- 
dence :  the  reason  appears  to  have  been  not  that  the  entry  was  in  the  ledger, 
but  because  it  was  a  large  charge  of  money  paid  on  account,  entered  all  at 
once,  without  appearing  to  be  in  the  coui-se  of  business;  the  case  alluded 
to  by  Judge  Rossel  was,  probably,  Wilson  v.  Wilson.  Entries  against 
one  may  be  given  in  evidence  against  another,  if  it  be  proved,  aliunde,  that 
the  latter  ordered  the  things,  Tenbroke  and  Chapman  v.  Johnson,  1  Coxe, 
288  :  Townly  v.  Wooly  and  another,  id.  377  ;  but  not  unless  such  order  is 
proved,  Jones  v.  Brick  and  Lane,  3  Halsted,  269. 

In  GtEORGIA,  the  New  York  practice  is  adopted.  In  Martin  v.  Tuffe, 
Dudley,  16,  the  rule  is  declared  thus :  '^  A  merchant's  and  shopkeeper's 
books  are,  by  constant  practice,  received  as  evidence  to  prove  the  sale  and 
delivery  of  goods,  when  it  is  shown  that  the  books  offered  are  of  original 
entry,  are  in  his  handwriting,  that  he  keeps  fair  books,  has  had  dealings 
with  the  person  charged,  and  that  he  kept  no  clerk."  In  this  case,  tlie 
entries  were  in  the  party's  handwriting,  and  he  had  kept  two  clerks,  but 
both  W'cre  dead;  and  it  was  held  that  by  reason  of  their  death,  the  party's 
situation  was  the  same  as  if  he  had  kept  no  clerk,  and  that  the  books  were 
competent  as  being  the  best  evidence  attainable.  It  was  held,  also,  in  this 
case,  that  the  entries  must  be  specific  and  particular,  and  that  a  general 
entry  of  "merchandize"  without  other  proof,  is  not  competent  evidence  : 
and  in  Williams  v.  Abercrombie  and  Horton,  id.  252,  where  the  entry  was 
one  charge  of  31  days'  work  at  so  much  a  day,  it  was  decided  to  be  inadmis- 
sible ;  and  the  court  said,  the  entries  should  "  appear  to  be  daily,  or  made 
when  the  work  is  done,  or  the  arti^cle  delivei'ed.  The  credit  given  to  such 
books  seems  to  rest  upon  this  idea:  that  as  the  entry  is  made  from  day  to 
day  as  the  articles  are  made  or  delivered,  there  is  no  reason  to  suspect  that 
they  are  made  with  a  view  to  fraud  or  injustice,  especially  when  it  is  in 
proof  that  the  party  is  in  the  habit  of  keeping  fair  and  correct  books." 

In  Ohio,  the  account-book  and  oath  of  the  party  are  admitted  to  a  certain 
extent  by  statute;  and  beyond  the  statute,  the  New  York  practice  of  admit- 
ting the  book  without  the  oath,  in  some  cases  appears  to  be  recognized. 
The  act  of  February  19,  1810,  sect.  6,  and  of  December  18,  1823,  sec.  2, 
in  the  same  words  enact,  "that  in  all  actions  where  any  claim  or  defence  is 
founded  on  book  accounts  of  not  more  than  eighteen  months'  standing,  in 
which  is  drawn  in  question  the  validity  or  amount  of  such  book  accounts, 
the  court  or  justice  may,  upon  the  trial  of  such  action,  examine  the  party 
under  oath  or  alBrmation,  touching  the  validity  of  such  account  or  accounts, 
which  shall  be  admitted  as  evidence  on   the  trial,  the  credibility  thereof 


368  smith's  leading  cases. 

being  left  to  the  jury  or  justice  to  determine,"  Under  this  statute,  it  is  not 
necessary  that  every  item  of  the  account  should  be  within  18  months  :  if  the 
transactions  be  apparently  fair  and  the  account  continuous,  so  as  to  be  one 
open  account,  it  is  enough  if  any  of  the  items  be  within  18  months;  James 
V.  Iviehniond  and  Bostwick,  5  Hammond's  Ohio,  3o7  :  a  check  book  is  not 
such  a  book-account  as  the  act  contemplates,  and  cannot  be  sworn  to ;  Wil- 
son V.  Groodin,  Wright,  219.  When  this  law  was  first  made,  the  courts 
considered  that  being  an  innovation  on  the  common  law,  it  must  be  taken 
strictly;  and  they  held  that  a  party  could  only  testify  that  the  book  was  his 
book  of  accounts,  and  could  not  swear  to  the  truth  of  any  of  the  charges. 
But  a  wider  extent  is  now  given  to  the  oath  of  the  party,  and  the  following 
principles  are,  in  a  recent  case,  considered  as  established.  If  the  matters 
charged  are  such  as  generally  constitute  the  subject  of  a  book  account,  the 
performance  of  the  services,  if  the  charge  be  for  work,  and  the  quantity, 
quality,  and  delivery  of  the  articles,  if  the  charge  be  for  goods,  may  be 
proved  by  the  oath  of  the  party  claiming  by  virtue  of  the  book  account; 
but  the  book  in  which  the  original  entries  were  made  must  be  produced, 
otherwise  the  oath  of  the  party  will  be  rejected;  if,  for  instance,  there  be  a 
day-book  and  a  ledger,  the  day-book  as  well  as  the  ledger  must  be  before  the 
court.  But  though  the  party  may  prove  what  services  were  performed,  and 
the  quantity,  quality  and  delivery  of  articles,  since  in  many  cases  he  alone 
is  acquainted  with  these  facts,  yet  he  cannot  testify  as  to  the  price  or  value 
of  the  articles  or  services  ;  this  must  be  proved  by  disinterested  witnesses ; 
much  less,  if  there  be  a  specific  contract,  can  he  testify  to  such  contract:  but 
though  the  party's  testimony  in  introducing  his  book  is  thus  restricted,  yet  on 
the  cross-examination,  a  wide  range  of  inquiry  is  allowed.  This  practice  is 
applicable  to  charges  for  goods  sold,  and  labour  and  other  service  performed, 
contained  in  the  account  books  of  merchants,  farmers,  mechanics  and  pro- 
fessional men.  As  to  money  charges,  a  distinction  is  taken ;  if,  in  the 
course  of  business,  small  sums  are  passing  between  the  parties,  these  may, 
with  propriety,  be  charged  on  book,  and  proved  in  the  same  manner  as  the 
other  items  of  the  account :  yet  money  lent  or  paid,  especially  if  in  any  con- 
siderable amount,  is  ordinarily  not  the  subject  of  book  charge;  a  note  or 
receipt  is  usually  taken  ;  and,  therefore,  though  an  individual  might  perhaps 
be  engaged  in  such  business  as  would  justify  such  charges,  yet  in  ordinary 
cases  they  are  not  admissible.  Cram  y-  Spear,  8  Hammond's  Ohio,  491; 
where  the  whole  subject  is  examined.  In  that  case,  an  account  containing 
seven  items  of  difi"erent  things  amounting  to  nearly  900  dollars,  was  off'ered  : 
three  of  the  charges,  amounting  altogether  to  nearly  S700,  were  for  cash 
lent:  and  this  part  of  the  account,  and  this  alone,  it  was  proposed  to  prove 
by  the  party's  oath. — The  court  decided  that  it  could  not  have  been  the 
intention  of  the  legislature  to  admit  this  kind  of  testimony  in  such  a  case; 
and  the  plaintiff  was  nonsuit.  See  Smiley  v.  Dewey,  17  Ohio,  156. — To 
what  extent  account  books  are  admissible  beyond  the  license  of  the  statute, 
is  not  very  clearly  defined.  In  James  v.  Richmond  and  Bostwick,  the 
court  said,  "We  do  not  undertake  to  determine  whether  books  of  account  of 
more  than  18  months'  standing,  may  or  may  not  be  given  in  evidence ;  or,  if 
given  in  evidence,  by  what  description  of  testimony  they  shall  be  supported. 
Such  accounts  are  admitted  in  some  of  our  sister  states,  and  to  a  certain 
extent  have  been  admitted  in  our  courts.    There  is  not,  however,  we  believe. 


PRICE    V.     THE    EARL    OF    TORRINGTON.  3G9 

any  settled  practice  on  the  subject."  In  Bentley's  Administrator  v.  IIol- 
Icnback,  Wright,  168,  the  defendant  offered  a  book  account  as  a  set-off. 
The  court  said,  the  point  was  somewhat  difficult.  "In  many  cases,  justice 
requires  that  account-books  should  be  received  in  evidence;  not  as  conclu- 
sive evidence  of  a  claim,  but  as  conducing  to  prove  it.  The  books  may  be 
strengthened  or  weakened  by  other  evidence,  such  as  proving  that  the  party 
kept  fair  books,  had  no  clerk,  &c.  In  this  case  we  are  disposed  to  look  at 
the  book.  12  Johnson's  Rep.  4G1  :"  and  judgment  was  given  allowing  the 
set-off.  In  Vanhorne's  Ex'or  v.  Brady,  Wright,  452,  the  account-book  of 
one  deceased  was  held  to  be  of  itself  not  evidence :  but,  under  the  circum- 
stances,^—it  appearing  that  the  accounts  were  kept  regularly,  that  the  parties 
had  had  dealings,  and  that  the  defendant  had  acknowledged  the  plaintiff's 
accuracy, — the  book  was  admitted  in  evidence.  In  Cram  v.  Spear,  it  was  said 
by  the  court,  that  "  books  of  deceased  persons  have  sometimes  been  permitted 
to  go  to  the  jury,  in  connexion  with  other  evidence,  and  without  further 
proof  as  to  the  books  themselves,  than  that  they  were  in  the  handwriting  of 
the  person  making  the  charges.  But  this  has  not  been  done,  not  in  con- 
sequence of  the  statute,  but  from  the  necessity  of  the  case,  and  in  accordance 
with  the  principle  that  the  handwriting  of  a  clerk  in  the  habit  of  making 
charges,  may  be  proven  after  his  decease,  or  when  he  is  without  the  jurisdic- 
tion of  the  court."  Upon  the  whole,  it  would  rather  appear  that  the  prin- 
ciple of  the  admissibility  of  account-books,  without  the  oath  of  the  party, 
and  beyond  the  limits  of  the  statute,  is  recognised  in  Ohio:  that  the  admis- 
sion is  not  regulated  by  a  precise  rule  as  in  New  York  ;  but  it  is  referred 
rather  to  the  discretion  of  the  court,  who  decide  according  to  the  necessity 
of  the  case,  the  apparent  honesty  and  regularity  of  the  books,  and  the  con- 
current testimony  in  favour  of  the  claim  from  other  quarters. 

See  the  principles  on  this  subject  recognized  in  Texas  ;  Underwood  v. 
Parrot t,  2  Texas,  168. 

In  Maryland,  North  Carolina,  Tennessee,  Alabama,  Vermont,  the 
oath  of  the  party  is  admitted  in  certain  cases  by  statute;  but  except  as  far 
as  the  statute  extends,  neither  the  plaintiff's  book  nor  his  oath  are  evitlence. 

In  Maryland,  by  the  statute  of  1729,  ch.  20,  s.  9,  an  account  of  things 
properly  chargeable  in  account,  sworn  by  the  creditor,  before  a  justice,  to 
be  just  and  true,  and  that  no  payment,  security  or  satisfaction,  other  than  is 
credited,  has  been  received,  is  good  prima  facie  evidence  :  but  by  the  statute 
1785,  ch.  46,  s.  8,  this  is  restricted  to  accounts  not  exceeding  ten  pounds, 
current  money,  in  the  course  of  any  whole  year.  Beyond  the  operation  of 
these  statutes,  a  plaintiff's  entries  or  oath  are  wholly  inadmissible.  In 
0 wings  &  Piet  v.  Low,  5  Gill  &  Johnson,  134,  the  plaintiff's  book  was 
offered  with  the  evidence  of  his  clerks.  Some  of  the  entries  were  by  the 
witness,  some  by  another  clerk,  who  was  absent,  some  by  one  of  the  plain- 
tiffs :  the  witness  swore  to  the  delivery  of  the  things  which  had  been  charg- 
ed by  him.self,  and  that  the  usage  of  the  house  was,  never  to  enter  a  charge 
till  the  article  was  delivered,  and  that  the  plaintiffs  were  fair  and  honest 
men,  and  would  not  make  false  charges  :  the  evidence  as  to  the  witness's 
own  entries  was  received  ;  but  as  to  the  others  the  book  was  rejected  ;  and 
the  court  said,  that  the  New  York  usage  of  admitting  the  plaintiff's  books, 
had  no  existence  in  Maryland. 

In  North  Carolina,  (1  Rev.  Stat.  97,  ch.  15,)  and  Tennessee,  (Ca- 

Vol.  I.— 24 


370  smith's   leading    cases. 

ruthers  &  Nicholson's  Compilation,  p.  131,)  it  is  enacted,  that  in  debt  and 
assumpsit,  where  the  declaration  is  general,  and  a  copy  of  the  account  is 
filed  with  the  declaration, — and  likewise  where  a  set-off  is  pleaded, — if  the 
plaintiff  swears  that  the  matter  in  dispute  is  a  book-account ;  and  that  he 
has  no  means  of  proof  but  his  book,  and  that  his  book  is  a  true  account  of 
all  his  dealings  with  the  other,  or  of  the  last  settlement  of  accounts,  that  the 
articles  were  delivered,  and  that  all  just  credits  had  been  given,  the  book 
and  oath  are  good  evidence  of  all  articles  delivered  within  two  ^'ears,  and  not 
amounting,  in  North  Carolina,  to  more  than  sixty  dollars,  or  in  Tennessee, 
to  seTenty-five  dollars  :  similar  provision  is  made  for  accounts  of  decedents, 
when  the  account  accrued  not  more  than  two  years  before  their  death,  and 
suit  is  brought  within  one  year  :  and  in  all  cases,  a  copy  of  the  account  is 
evidence,  unless  notice  is  given  to  produce  the  original. 

In  Alabama,  a  statute  allows  the  oaths  of  ike  par^jVs  to  be  received, 
touching  claims  or  set-off's,  not  exceeding  twenty  dollars;  but  this  being  an 
innovation  on  the  common  law,  is  to  be  construed  as  strictly  as  possible; 
Lock  V.  Miller,  3  Stewart  and  Porter,  13;  Thompson  v.  Jones,  2  id.  46. 
Entries  of  the  plaintiff,  stating  delivery  of  goods,  are  not  evidence  for  him  ; 
''  in  this  state  the  admissibility  of  proof  in  such  cases,  depends  on  the  com- 
mon law  rules  of  evidence  :"  Moore  v.  Andrews  and  Brothers,  5  Porter, 
107;  Nolley  v.  Holmes,  3  Judges,  642. 

In  Ver3Iont  we  find  a  similar  state  of  things.  Statute  (Rev.  St.  title 
41,  oh.  36,)  allows  the  action  of  account  to  be  brought  on  book-account;  and 
directs  that,  after  judgment  quod  computet,  the  auditor  shall  have  power  to 
examine  all  the  parties  to  the  suit  on  oath,  in  relation  to  the  account,  or  any 
item  of  it,  and  call  for  the  original  books,  if  there  are  any  :  and  in  any  action 
before  a  justice,  where  a  book-account  is  sued  on  or  used  as  set-off,  the 
justice  has  similar  powers  to  examine  the  parties  on  oath. — This  action  will 
lie,  and  a  book-account  is  proper  evidence,  whenever  general  indebitatus 
assumpsit  could  be  maintained ;  that  is  whenever  either  the  contract  is 
implied,  or  has  been  performed  on  the  plaintiff's  side;  but  if  the  suit  is  to 
recover  damages  for  non-performance  of  a  contract,  and  the  plaintiff  is 
obliged  to  sue  specially,  this  action  will  not  lie;  per  Colimer,  J.,  in  Way 
v.  Wakefield,  7  Vermont,  223 ;  that  in  the  former  cases,  a  book-charge  is 
proper,  and  this  action  maintainable,  see  Newton  v.  Higgins,  2  id.  366 ; 
Fry  V.  Slyfield,  3  id.  246;  Leach  &  Walker  v.  Shephard,  5  id.  363;  Paige 
v.  ,Ptipley,  12  id.  229;  and  that  in  the  latter  they  are  not,  see  2  Aikens, 
386;  Allen  v.  Thrall,  10  Vermont,  255;  Blanchard  v.  Butterfield,  12  id. 
451 ;  Smith  v.  Smith,  14  id.  440  ;  but  when  goods  have  been  manufactured 
to  order,  and  the  property  in  them  has  passed  to  the  defendant,  this  action 
will  lie,  although  there  has  been  no  delivery ;  Mattison  v.  Wescott,  13  id. 
258  ;  Paddock  &  Riddle  v.  Ames,  14  id.  515.  The  right  to  make  a  charge 
on  book  must  exist  at  the  time  of  delivering  the  article  or  performing  the 
service  ;  Nasson  v.  Crocker,  11  id.  403  ;  and  therefore  money  paid  on  a  note, 
or  articles  delivered  in  payment  of  a  note,  cannot  afterwards  be  recovered  in 
an  action  on  book  account,  if  not  so  applied  by  the  creditor ;  Slasson  v. 
Davis  et  al.,  1  Aikens,  73  ;  Peach  v.  Mills,  14  Vermont,  371,  376;  Stevens 
V.  Tuttle,  3  id.  519 ;  but  where  money  is  advanced,  or  goods  delivered,  in 
creation  of  a  debt,  so  that  a  right  to  charge  exists  at  the  time,  though  it  may 
be  the  understanding  of  the  parties  that  the  claim  is  to  be  adjusted  after- 


I 


PRICE     V.     THE     EARL     OF     TORRINGTON.  371 

wards  by  being  set  off  ngainst  a  note  or  other  debt,  it  is  a  proper  subject  for 
book-account;  Strong  v.  M'Connell,  10  id.  231;  Brooks  &  Co.  v.  Jewell, 
14  id.  470;  Hickok  &  Catlin  v.  llidley,  15  id.  42;  Rogers  v.  Miller,  id. 
431.  It  has  been  decided,  also,  that  a  charge  of  accountability  against  one 
as  agent  to  sell,  is  enough  ;  and  when  he  sells,  the  action  may  be  brought; 
Hall  &  Chase  v.  Peck,  10  id.  474  ;  Starr  v.  Huntley,  12  id.  13  ;  but  for 
the  purpose  of  recovering  the  price  or  value  of  property,  this  form  of  action 
should  be  limited  to  cases  of  actual  sale,  or  to  cases  where  the  party  has 
admitted  his  liability  as  upon  a  sale;  Tyson  v.  Doe,  15  id.  571,575. — 
The  right  to  examine  and  to  testify,  as  relates  to  both  parties,  is  uhlimited, 
extending  to  every  material  fact  in  relation  to  the  account,  proper  to  be  con- 
sidered in  deciding  on  the  merits  of  the  claims;  Stevens  v.  Richards, 
Trusdell  &  Co.,  2  Aikens,  81 ;  Fay  et  al.  v.  Green,  id.  386 ;  May  and 
AVales  v.  Corlen,  4  Vermont,  12:  see  Matlocks  v.  Owens,  5  id.  42.  But 
the  party  must  be  examined  in  person ;  his  deposition  cannot  be  taken. 
Pike  V.  Blake,  8  id.  400.  Money  charges.  Warden  v.  Johnson,  11  id.  455; 
Chellis  V.  Woods,  id.  406;  Ins.  Co.  v.  Curamings,  id.  503;  and  even  a 
single  charge,  Kingsland  v.  Adams,  10  id.  201 ;  are  recoverable  thus  :  also, 
charges  for  freight;  Boardman  v.  Keeler  &  Allen,  2  id.  65  :  and  matter  on 
which  a  suit  of  this  nature  could  be  brought,  (use  and  occupation,  for  in- 
stance,) may  be  involved  in  a  defence  to  it ;  for  it  is  settled  that  "  if  a  party 
charge  any  matter  upon  book,  and  present  it  before  the  auditors,  and  claim 
to  recover  for  it,  he  cannot  object  to  any  other  matter  being  brought  into 
the  account  upon  which  it  was  agreed  that  the  charge  should  apply."  Gun- 
nison V.  Bancroft,  11  id.  490;  Fassett  v.  Vincent,  8  id.  73.  It  is  obvious 
that  these  decisions  in  Vermont,  on  the  evidence  proper  in  the  action  of 
book-account,  are  wholly  inapplicable  to  the  other  states ;  and  in  questions 
respecting  the  admissions  of  book  entries,  elsewhere,  these  cases  cannot  be 
cited  without  great  danger.  The  whole  practice  rests  upon  statute  :  by  that 
statute,  it  is  not  the  book  of  entries,  supported  by  the  party's  oath,  which 
is  evidence ;  it  is  the  oath  of  the  party,  affected  as  to  its  credibility  by  the 
appearance  of  his  account-book,  or  the  fact  that  he  kept  no  books,  that  is 
the  substantive  evidence  received.  The  statute  gives  the  action  of  account, 
and  directs  the  oaths  of  the  parties  to  be  taken,  and  gives  authority  to  call 
for  the  books  of  account,  where  any  have  been  kept.  Accordingly,  it  is  no 
objection  to  the  admissihilify  of  the  book  that  there  are  erasures  or  altera- 
tions in  it;  Sargent  v.  Pettibone,  1  Aikens,  355 ;  or  that  the  entries  are  not 
by  particulars,  and  made  at  the  time,  but  are  made  all  at  once,  in  large 
amounts,  long  afterwards;  Bead  v.  Barlow,  1  id.  145  ;  Leach  &  Walker  v. 
Shepard,  5  Vermont,  363;  Newell  v.  Executors  of  Keith,  11  id.  214  :  the 
account  may  be  made  up  from  memory  in  court ;  and  indeed  it  is  not  neces- 
sary that  there  should  be  any  books  of  account  kept  at  all ;  if  the  charges 
are  of  a  kind  proper  for  book-charges,  and  the  examination  of  both  parties 
on  oath,  shows  the  claim  to  be  just,  the  party  shall  recover  ;  Bell  v.  M'Clean, 
3  id.  185  :  and  as  the  oath  of  the  plaintiff  is  not  conclusive,  and  is  encoun- 
tered by  the  oath  of  the  defendant,  it  is  deemed  that  this  practice  is  not 
dangerous.  Leach  et  al.  v.  Shepard;  Kingsland  v.  Adams,  10  id.  201. 
This  view  of  the  law  of  Vermont  has  been  given,  to  show  that  it  is  a  pecu- 
liar practice,  and  that  the  decisions  are  wholly  inapplicable  to  other  states ; 
a  circumstance  which,  in  some  cases,  has  been  overlooked.     It  is  iujportant 


372  SMITtl's     LEADING    CASES. 

to  observe,  that  the  statute  which  gives  this  action  of  account  does  not  take 
away  the  common  law  action  of  assumpsit  for  goods  sold  and  delivered; 
and  it  has  been  decided  that  in  such  an  action  in  Vermont,  the  book  of  en- 
tries and  oath  of  the  party  is  not  admissible  in  evidence ;  but  the  entries 
must  be  proved  as  at  common  law,  i.  v.  by  the  oath  of  the  clerk  or  servant 
who  made  them,  if  he  is  living,  and  by  proof  of  his  hand  if  he  is  dead. 
Brunham  v.  Adams,  5  Vermont,  313. 

In  Indiana  and  Mississippi,  it  has  been  decided  that  a  party's  books,  in 
his  own  handwriting,  are  not  comjjeteut  evidence  :  the  subject  is  regulated 
by  the  common  law  principle.  Decamp  and  another  v.  Vaudagrift,  4  Black- 
ford, 272  ;  West  v.  Poindexter,  Walker,  303.  As  to  Virginia,  see  Downer 
&  Co.  V.  Morrison,  2  Grattan,  250. 

II.  B.  W. 


[n43]  "iTETER  V.   COMPTON. 


TRIN.— 5  W.  <fc  M.    KING'S  BENCH. 

[reported  skinner,  353.] 

•'  An  agreement  that  is  not  to  be  performed  within  the  space  of  one  yeiir  from  the 
makin<r  thereof"  means,  in  the  Statute  of  Frauds,  an  agreement  wliich  appears 
from  its  terms  to  be  incapable  of  performance  within  the  year. 

The  question  upon  a  trial  before  Holt,  Chief  Justice,  nisi  prius,  in  an 
action  upon  the  case,  upon  an  agreement,  in  which  the  defendant  promised 
for  one  guinea  to  give  the  plaintiff  so  many  at  the  day  of  his  marriage,  was, 
if  such  agreement  ought  to  be  in  writing,*  for  the  marriage  did  not  happen 
within  a  year  :  the  Chief  Justice  advised  with  all  the  Judges,  and  by  the 
great  opinion  (for  there  was  diversity  of  opinion,  and  his  own  was  e  contra'\^ 
where  the  agreement  is  to  be  performed  upon  a  contingent,  and  it  does  not 
appear  within  the  agreement  that  it  is  to  be  performed  after  the  year,  there 
a  note  in  writing  is  not  necessary,  for  the  contingent  might  happen  within 
the  year  j  but  where  it  appears  by  the  whole  tenor  of  the  agreement  that  it 
is  to  be  performed  after  the  year,  there  a  note  is  necessary  ;  otherwise  not. 

*  Accordinfr  to  the  exigency  of  tlie  Statute  of  Frauds,  29  C.  2,  c.  3,  s.  4.  Vide  ante, 
32r..     8alk.  2aO. 

t  In  Smith  v.  VVestall,  Lord  Ray.  316,  Lord  Holt  says,  speaking  of  this  case,  that  the 
reason  of  liis  opinion  was,  "  because  the  design  of  the  statute  was  not  to  trust  the  memory 
of  witnesses  beyond  one  year." 


PETER    V.    OOMPTON. 


373 


This  case,  as  well  as  Birkmyr  v. 
Darnell,  turns  on  tlie  fourth  section  of 
the  Statute  of  Frauds.  That  section  di- 
rects, among- other  things,  that  no  action 
shall  be  brought,  to  charge  any  person, 
upon  any  agreement  that  is  not  to  be 
performed  within  the  space  of  one  year 
from  the  making  thereof,  unless  the 
agreement,  or  some  memorandum  or 
note  thereof,  shall  be  in  writing,  signed 
by  the  party  to  be  charged  therewith,  or 
some  other  person  thereunto  by  him  law- 
fully authorised.  Peter  v.  Compton  turn- 
ed upon  the  meaning  of  the  words  print- 
ed in  italics. 

The  opinion  of  the  majority  of  the 
judges  in  this  case  has  been  often  since 
confirmed.  Anon.,  Salk.  280;  Francam 
V.  Foster,  Skinner,  356 ;  Fenton  v.  Em- 
blers,  3  Burr.  1281;  1  Bl.  333,  ubi,  per 
Denison,  J.,  "  The  statute  of  frauds  plain- 
ly means  an  agreement  not  to  be  per- 
formed within  the  space  of  a  year,  and 


[*144] 


I 


expressly  and  ^specifically  so 
agreed  :  it  does  not  extend  to 
cases,  where  the  thing  may  be  perform- 
ed within  the  year."  Accord.  Wells  v. 
Horlon,  4  Bingh.  40,  where  it  was  held, 
that  a  contract  by  A.  that  his  executor 
should  pay  10,000?.  need  not  be  in  writ- 
ing :  [and  Souch  v.  Strawbridge,  2  C.  B. 
808,  where  the  contract  was  to  maintain 
a  child  "so  long  as  the  defendant  should 
think  proper."] 

The  words  of  the  statute  are,  how- 
ever, express;  that  no  action  shall  lie 
upon  any  agreement  that  is  not  to  be 
performed  within  one  year  after  the 
making  thereof,  unless  it  be  reduced  into 
writing  and  signed.  Accordingly,  when 
the  defendant's  wife  hired  a  carriage  for 
five  years  at  90  guineas  per  annum, 
whicii  contract  was,  by  the  custom  of  the 
trade,  determinable  at  any  time  on  pay- 
ment of  a  year's  hire  ;  the  court  held  the 
case  witliin  the  statute,  and  that  the 
contract  ought  to  have  been  in  writing. 
Birch  V.  Earl  of  Liverpool,  9  B.  &  C. 
392.  And  so  must  a  contract  for  a  year's 
service,  to  commence  at  a  day  subse- 
quent to  the  making  of  the  contract. 
Bracpgirdle  v.  Heald,  1  B.  «fe  A.  722: 
Sneliing  v.  Lord  Iluntingfield,  1  C.  M. 
&L  R.  20  ;  see  also  Boydell  v.  Drummond, 
11  East,  142,  stated  ante,  p.  130.  [So 
also  must  a  contract  for  payment  of  an 
annuity,  though  it  may  determine  within 
the  year  by  the  death  of  the  annuitant. 
Sweet  V.  Lee,  4  Sc.  N.  R.  77;  3  Man. 
&-  Gr.  452,  S.  C. ;  or  a  contract  for  trrnre 
than  one  year's  service,  though  subject 


to  the  like  contingency.  Girand  v.  Rich- 
mond, 2  C.  B.  835.]  It  was  hinted  in 
Bracegirdle  v.  Heald,  and  decided  in 
Donellan  v.  Read,  3  B.  &  Adol.  899, 
that  an  agreement  is  not  within  the  sta- 
tute, provided  that  all  that  is  to  be  done 
by  one  of  the  parties  is  to  be  done  within 
a  year.  There  the  defendant  was  tenant 
to  the  plaintiff,  under  a  lease  of  20  years, 
and,  in  consideration  that  the  plaintiff 
would  lay  out  50Z.  in  alterations,  the  de- 
fendant promised  to  pay  an  additional  5/. 
a  year  during  the  remainder  of  the  term. 
The  alterations  were  completed  within 
the  year,  and  an  action  being  brought  for 
the  increased  rent,  it  was  objected  among 
other  things,  that  the  contract  could  not 
possibly  be  performed  within  a  year,  and 
therefore  ought  to  have  been  in  writing. 
The  court  however  held  that  it  was  not 
within  the  statute.  "  We  thmk,"  said 
Littledale,  J.,  delivering  the  judgment 
of  the  court,  "that  as  the  contract  was 
entirely  executed  on  one  side  within  the 
year,  and  as  it  was  the  intention  of  the 
parties,  founded  on  a  reasonable  expec- 
tation, that  it  should  be  so,  the  Statute 
of  Frauds  does  not  extend  to  such  a  case. 
In  case  of  a  parol  sale  of  goods,  it  often 
happens  that  they  are  not  to  be  paid  for 
in  full  till  after  the  expiration  of  a  long- 
er time  than  a  year  :  and  surely  the  law 
would  not  sanction  a  defence  on  that 
ground,  where  the  buyer  had  had  the  full 
benefit  of  the  goods  on  his  part."  See 
Hoby  v.  Roebuck,  7  Taunt.  157;  2 
Marsh.  433. 

It  may  be  observed  on  this  decision, 
that  the  contrary  seems  to  have  been 
taken  for  granted  in  Peter  v.  Compton, 
and  others  of  the  older  cases ;  for  in- 
stance, in  Peter  v.  Compton,  there 
would  have  been  no  occasion  to  argue 
the  question,  whether  the  possibility 
that  the  plaintiff's  marriage  might  not 
happen  for  a  year  brought  the  case 
within  the  statute  or  no,  if  the  payment 
of  the  guinea,  which  took  place  imme- 
diately, had  been  considered  sufficient 
to  exempt  the  agreement  from  its  ope- 
ration. It  may  be  further  observed, 
that  the  decision  in  Donellan  v.  Read, 
makes  the  word  agreement  bear  two  dif- 
ferent meanings  in  the  same  section  of 
the  Statute  of  Frauds  :  the  words  of  the 
4tli  section  are — "That  no  action  nhall 
be  brought,  whereby  to  charge  any  exe- 
cutor or  administrator,  upon  any  special 
promise,  to  answer  damages  out  of  his 
own  estate  ;  or  to  charge  the  defendant 
upon  any  special  promise  to  answer  for 


874 


smith's    leading    cases. 


the  debt,  ilefaiilt,  or  miscarria2fc  of  ano- 
ther person  ;  or  to  chargre  any  person 
upon  any  a<rreement  made  in  considera- 
tion of  marriage  ;  or  upon  any  contract 
or  sale  of  any  lands,  tenements,  or  here- 
ditaments, or  any  interest  in,  or  con- 
cerning them  :  or  upon  any  agreement 
that  is  not  to  be  performed  witliin  the 
space  of  one  year  from  the  making 
tliereof;  unless  the  agreement  upon 
which  such  action  shall  be  brought,  or 
some  memorandum  or  note  thereof,  shall 
be  in  writing,  signed  by  the  party  to  be 
charged  therewith,  or  some  other  per- 
son thereunto  by  him  lawfully  author- 
ised." Now,  it  is  clear,  that  the  word 
agreement,  when  lastly  used  in  the  sec- 
tion, means  what  is  to  be  done  on  both 
sides :  and  it  has  frequently  been  held 
upon  that  very  ground,  that  guaranties 
are  void,  if  they  do  not  contain  the  con- 
sideration as  well  as  the  promise.  Wain 
V.  Warlters,  6  East,  10;  Jenkins  v. 
Reynolds,  3  B.  &  B.  14;  Saunders  v. 
Wakefield,  4  B.  &  A.  595;  [Sykes  v. 
.Di.xon,  9  A.  &  E.  693] ;  1  VVm.  Saund. 
'211,  in  notis;  and  the  notes  to  Birkmyr 
r*1451  ^*  ■D^''"'=^"»  ante;  *but  a  much 
•-  *  more  confined  sense  appears  to 
be  bestowed  upon  the  word  agreement 
when  it  is  held,  that  an  agreement  is 
capable  of  being  executed  within  a  year, 
where  one  part  only  of  it  is  capable  of 
being  so.  In  the  case  put  by  Mr.  J. 
Littledale,  of  goods  delivered  imme- 
diately, to  be  paid  for  after  the  expira- 
tion of  a  year,  great  hardship  certainly 
would  be  inflicted  on  the  vendor,  if  he 
were  to  be  unpaid,  because  he  could  not 
show  a  written  agreement.  But  it  may 
be  worthy  of  consideration,  whether, 
even  if  he  were  to  be  prevented  from 
availing  himself  of  the  special  contract 
under  which  he  sold  the  goods,  he  might 
not  still  sue  on  a  quantum  meruit,  ^ee 
Teal  v.  Auty,  2  B.  &  B.  99;  4  Moore, 
542;  Earl  of  Falmouth  v.  Thomas,  1  C. 
&  M.  109;  Knowles  v.  Mitchell,  13 
East,  249.  In  Boydell  v.  Drummond, 
11  East,  1.59,  it  is  expressly  settled  that 
part  performance  will  not  take  an 
agreement  out  of  the  statute,  and  tliat 
upon  principles  which  seem  not  inappli- 
cable to  the  question  in  Donellan  v. 
Read.  "I  cannot,"  said  Lord  Ellen- 
borough,  "  say  that  a  contract  is  per- 
formed,  when  a  great  part  of  it  remains 
wrt-performed  within  tiie  year;  in  other 
words   that  part  performance   is  2^('^' 


formnncc.  The  mischief  meant  to  be 
prevented  by  the  statute,  was  the  leav- 
ing to  memory  the  terms  of  a  contract 
for  a  longer  time  than  a  year.  The 
persons  might  die  who  were  to  prove  it, 
or  they  might  lose  their  faithful  recol- 
lection of  the  terms  of  it."  (See  Smith 
V.  Westall,  L.  Ray.  316.)  These  obser- 
vations seem  applicable  in  full  force  to 
such  a  case  as  Donellan  v.  Read.  The 
performance  of  one  side  of  the  agree- 
ment within  the  year  could  not  be  said 
to  be  more  than  part-performance  of  the 
ag-reement ;  and  the  danger  that  wit- 
nesses may  die,  or  their  memories  fail, 
seems  to  be  pretty  much  the  same  in 
every  case  where  an  agreement  is  to  be 
established,  after  the  year  is  past,  by 
parol  evidence.  Indeed,  if  there  be  any 
difl^erence  at  all  in  the  danger  of  admit- 
ting oral  testimony  after  the  year,  it 
seems  greater  in  a  case  where  one  side 
of  the  agreement  only  has  been  per- 
formed, than  in  such  a  case  as  Boydell 
V.  Drummond  ;  since,  where  the  agree- 
ment has  been  partially  performed  on 
both  sides,  as  in  the  latter  case,  a  wit- 
ness giving  a  false  or  mistaken  account 
of  its  terms,  would  have  to  render  his 
tale  consistent  with  what  had  been  done 
by  both  the  contractors;  whereas,  if  the 
part-performance  had  been  on  one  side 
only,  the  witness  would  only  have 
to  make  his  tale  consistent  with  what 
had  been  done  on  that  side.  It  is  true 
that,  in  Donellan  v.  Read,  there  was  a 
part-performance  on  both  sides;  but  so 
there  was  in  Boydell  v.  Drummond : 
and  the  reason  assigned  for  the  decision 
in  Donellan  v.  Read,  viz.  that  the  whole 
of  one  side  of  the  agreement  was  per- 
formable  within  the  year,  would  equally 
apply  in  a  case  where  there  had  been, 
and  could  be,  no  part-performance  on 
the  other  side  for  twenty  years.  {  Donel- 
lan V.  Read  is  fully  confirmed  in  Cherry 
V.  Heming,  4  Exchequer,  631 ;  and 
Baron  Parke  there  says:  "The  learn- 
ed observations  of  Mr.  Smith  are  not 
sufficient  to  induce  me  to  say  that  it  was 
wrongly  decided.  The  case  of  Peter 
V.  Compton,  which  he  relies  on,  does  not 
support  his  view.  All  that  can  be  said 
of  that  case  is,  that,  there  being  two  an- 
swers to  the  Statute  of  Frauds,  Lorrl 
Holt  gives  one  which  is  satisfactory, 
namely,  that  the  agreement  might  have 
been  performed  within  the  year."} 


PETER    V.     C  0  M  P  T  0  N.  375 

A  coutract  which  cannot  be  fully  performed  within  a  year,  is  manifestly 
and  essentially  within  the  provisions  of  the  Statute  of  Frauds.  Linscott  v. 
M'Intire,  15  Maine,  201 ;  Hinckley  v.  Southgate,  11  Vermont,  428  ;  Lock- 
wood  V.  Barnes,  3  Hill,  128 ;  Lower  v.  Winters,  7  Cowen,  2G5.  Thus  in 
Herrin  v.  Butters,  20  Maine,  119,  an  agreement  to  clear  and  sow  land  in 
consideration  of  being  allowed  to  take  the  profits  for  three  years,  was  held  to 
be  insusceptible  of  performance  in  a  year,  and  consequently  invalid  without 
a  writing.  The  same  thing  has  been  held  of  a  lease  for  a  single  year  to 
GommencQ  in  futicro :  Croswell  v.  Crane,  7  Barbour's  S.  Ct.  191,  and  of 
every  other  contract,  which  cannot  be  finally  and  fully  performed  until  after 
the  expiration  of  a  year  from  the  time  at  which  it  is  made,  whether  the  delay 
arise,  from  the  remoteness  of  the  period  at  which  the  performance  of  the 
contract  is  to  commence,  or  the  length  of  time  during  which  it  is  to  con- 
tinue ;  Wilson  v.  Martin,  1  Denio,  602.  But  the  statute  will  not  apply, 
where  the  contract  can,  by  any  possibility,  be  fulfilled  or  completed  in  the 
space  of  a  year,  although  the  parties  may  have  intended,  that  its  operation 
should  extend  through  a  much  longer  period;  Kent  v.  Kent,  18  Pickering, 
569;  Peters  v.  Westborough,  19  id.  364;  Blake  v.  Cole,  22  id.  97;  Ro- 
berts V.  The  Rockbottom  Company,  7  Metcalf,  46 ;  Souch  v.  Strawbridge, 
2  C.  B.  808 ;  Derby  v.  Phelps,  2  New  Hampshire,  515  ;  Bussel  v.  Slade ; 
M'Lees  v.  Hale,  10  Wend.  426;  Plimpton  v.  Curtis,  15  id.  336.  '^We 
think  it  is  settled  by  the  recent  cases,"  said  Shaw,  C.  J.,  in  Roberts  v.  The 
Rockbottom  Co.,  "  that  when  the  contract  may,  by  its  terms,  be  fully  per- 
formed within  a  year,  it  is  not  void  by  the  Statute  of  Frauds,  although  in 
some  contingencies  it  may  extend  beyond  that  period."  And  this  rule  of  con- 
struction has  been  carried  still  further,  and  to  the  extent  of  deciding,  that  an 
agreement  which  provides,  prima  facie,  for  a  performance  beyond  the  year,  will 
not  be  invalidated  by  the  statute,  if  it  can  be  fulfilled  in  less  than  that  period, 
under  any  possible  circumstances,  consistently  with  its  terms;  Lyon  v. 
King,  11  Metcalf,  411.  Thus  a  verbal  contract  to  work  for  another  for  a 
year,  will  not  be  invalid,  because  the  parties  do  not  intend,  that  the  service 
shall  begin  at  once,  nor  unless  it  is  expressly  agreed,  that  its  commence- 
ment shall  be  postponed  until  a  future  day;  Russell  v.  Slade.  And  the 
same  thing  is  true,  when  the  parties  contemplate  a  performance  beyond  the 
year,  if  thei'e  be  any  contingency  in  which  the  contract  can  be  fully  per- 
formed within  it.  Thus  in  Peters  v.  Westborough,  19  Pickering,  364,  the 
contract  was  for  the  support  of  a  child,  until  she  should  attain  the  age  of 
eighteen  years.  Here  the  performance  contemplated  by  the  parties,  and 
provided  for  by  the  contract,  was  manifestly  intended  to  extend  through 
a  period  of  many  years,  nor  was  it  subject  to  any  contingency  or  qualifica- 
tion in  terms.  But  as  the  whole  contract  was  necessarily  dependent  upon 
the  life  of  the  child,  and  might  have  been  brought  to  an  immediate  termina- 
tion by  her  death,  it  was  held  not  to  come  within  the  provisions  of  the 
statute.  A  similar  point  was  decided  in  Howard  v.  Burgin,  4  Dana,  137. 
It  seems  necessarily  to  follow  from  these  decisions,  that  whenever  the  length 
of  the  period  during  which  the  performance  of  a  contract  is  to  endure,  is 
dependent  upon  the  contingency  of  life ;  no  writing  is  necessary  to  give  it 
validity.  Tims  in  Lyon  v.  King,  11  Metcalf,  411,  an  oral  agreement  not 
to  carry  on  the  business  of  a  livery-stable  keeper,  was  held  valid,  because  it 
must  necessarily  terminate  on  the  death  of  the  contracting  party,  which 


370  smith's     LEADING    CASES. 

might  as  well  happen  before  the  end  of  the  year  as  afterwards.  So  a  promise 
to  be  performed  on  the  death  of  the  promisor,  is  not  within  the  statute, 
because  his  death  may  happen  instantaneously,  and  lead  to  the  immediate 
perfurmance  of  the  promise  ;  Wells  v.  Horton,  4  Bing.  40 ;  Thompson  v. 
Gordon,  3  Strobhart,  197.  And  it  may  be  presumed,  that  an  insurance  on 
life  would  come  within  the  same  reason,  as  being  susceptible  of  full  per- 
formance, immediately  upon  the  death  of  the  person  whose  life  is  insured. 
But  no  contingency  can  take  a  contract  out  of  the  statute,  unless  it  be  of  a 
nature  to  accomplish,  instead  of  defeating  it ;  Harris  v.  Porter,  2  Harring- 
ton, 27.  An  executory  sale  of  a  slave,  to  take  effect  after  the  expiration  of 
a  year,  is  therefore,  within  the  statute,  for  although  his  death  may  put  an 
end  to  the  contract  before  the  end  of  the  year,  yet  it  will  at  the  same  time 
render  its  performance  impossible;  Saunders  v.  Kastenbine's  ex'ors,  G  B. 
Monroe,  17.  And  in  the  recent  case  of  Folley  v.  Greene,  2  Sandford  Ch. 
91,  where  the  validity  of  an  oral  agreement  by  one  person,  to  support 
another  came  in  question,  a  doubt  was  expressed,  whether  the  contingent 
duration  of  the  obligation  imposed  by  a  contract,  would  take  it  out  of  the 
statute,  unless  the  contingency  were  dependent  on  the  will  of  the  parties, 
and  not  upon  natural  causes  beyond  their  control.  The  same  point  was 
raised  in  Bull  v.  McCrea,  8  B.  Monroe,  422,  without  being  decided,  though 
the  majority  of  the  court  seem  to  have  been  in  favour  of  the  validity  of  the 
contract. 

Whatever  may  be  the  rule,  where  the  contingency  is  beyond  the  control  of 
the  pjirties,  there  is  no  doubt  that  where  they  have  the  power  to  perform  the 
contract  within  the  year,  it  will  not  be  invalid  because  it  was  meant  to  con- 
tinue, and  has  actually  continued  during  a  much  longer  period.  This  doc- 
trine is  strikingly  illustrated  by  the  case  of  Moore  v.  Fox,  10  Johnson,  244, 
where  a  pi'omise  had  been  made  by  one  of  the  members  of  a  congregation,  to 
pay  the  plaintiff  two  dollars  a  year  for  his  services  as  minister,  and  suit  was 
brought  for  services  rendered  many  years  after  the  promise.  It  was  held  by 
the  court  that,  as  the  plaintiff  had  received  his  salary  in  half  yearly  pay- 
ments, it  must  be  presumed  that  such  was  the  understanding  at  the 
time  of  the  promise,  and  if  so,  the  contract  could  not  be  considered  as 
within  the  statute,  because  his  withdrawal  before  the  end  of  the  year 
would  not  have  prevented  a  recovery  for  the  services  during  the  tirst 
sis  months.  In  like  manner,  where  the  contract  was  for  the  payment  of  a 
sum  of  money,  as  soon  as  a  certain  mortgage  should  be  discharged,  it  was 
held,  that  although  the  mortgage  would  not  be  due  for  more  than  a  year,  yet 
as  there  was  nothing  to  prevent  the  mortgagor  from  paying  it  off  before  that 
time,  the  case  did  not  come  within  the  provisions  of  the  statute;  Artcher  v. 
Zeh,  5  Hill,  200. 

But  where  the  contract  is  entire,  and  provides  for  a  performance  contin- 
uing longer  than  a  year,  to  be  paid  for  in  gross,  it  will  not  be  valid  without 
the  aid  of  writing;  Squire  v.  Whipple,  1  Vermont,  69;  Shute  v.  Dorr,  5 
Wend.  204.  Thus  in  Drummond  v.  Burrell,  13  Wend.  307,  a  verbal  con- 
tract by  the  defendant,  to  work  for  the  plaintiff  for  two  years,  for  the  sum  of 
one  hundred  dollars,  was  held  invalid.  This  case  was  distinguished  from 
Moore  V.  Fox,  on  the  obvious  ground  that  while  a  recovery  might  have 
been  had  in  the  one,  for  the  services  rendered  during  the  first  year,  at  its 


\ 


PETER     V.    OOMPTON.  377 

termination,  even  if  the  plaintiff  had  refused  to  serve  anj  longer,  the  con- 
tract in  the  other  was  entire,  and  could  give  no  right  of  action,  until  it 
had  been  fully  performed  by  serving  during  two  years,  according  to  its 
stipulations. 

It  would  seem,  moreover,  that  as  the  statute  was  intended  to  lay  down  a 
rule  of  evidence,  and  to  regulate  the  admission  of  testimony  in  disputed  cases, 
regard  must  be  had  in  its  application,  not  merely  to  the  period  at  which  the 
contract  may  be  performed  in  fact,  but  to  that  at  which  it  can  be  so  far  ful- 
filled in  law  as  to  become  a  matter  of  legal  cognisance.  Thus  in  Lapham  v. 
Whipple,  8  Metcalf,  57,  where  a  contract  for  the  sale  of  a  patent,  provided 
that,  if  the  vendee  did  not  realise  the  amount  of  the  purchase  money,  within 
three  years,  from  the  profits  of  the  patent,  the  vendor  would  repay  it  to  him 
with  interest,  it  was  held,  that  the  right  of  the  vendee  to  repayment,  was  de- 
pendent on  the  state  of  his  accounts  at  the  end  of  three  years,  and  not  at  any 
intermediate  period;  but  that  if  this  were  not  so,  the  contract  would  still  be 
within  the  statute,  because  no  action  could  be  brought  against  the  vendor 
before  the  three  years  expired,  however  great  the  loss  which  he  might 
sustain  previously. 

It  was  decided  in  Rake's  Administrator  v.  Pope,  7  Alabama,  161  ;  and 
Johnson  v.  Watson,  1  Kelly,  348,  that  the  statute  of  frauds  does  not  extend 
to  contracts  which  are  wholly  executed  on  one  side,  although  they  may  be 
executory  on  the  other,  and  that  an  absolute  sale  is  consequently  valid  with- 
out writing,  whatever  the  period  fixed  for  the  payment  of  the  purchase 
money.  It  has  also  been  held,  that  no  contract  is  within  the  statute,  which 
can  be  executed  on  either  side  within  the  year,  even  if  it  must  remain  open 
on  the  other  for  a  much  longer  period  ;  (supra  144),  Holbrook  v.  Armstrong, 
1  Fairfield,  31.  And  in  Souch  v.  Strawbridge,  2  C.  B.  888,  Tindal,  C. 
J.,  expressed  the  opinion,  that  the  statute  does  not  apply  in  any  case,  where 
there  has  been  a  complete  performance  on  one  side,  assented  to  or  accepted 
on  the  other;  and  that  it  was  only  intended  as  a  protection  against  actions 
brought  on  unwritten  contracts  which  have  not  been  performed,  and  there- 
fore rest  wholly  on  the  uncertain  recollection  and  testimony  of  witnesses. 
But  it  has  been  generally  held  in  this  country,  that,  as  the  statute  was  meant 
to  provide,  against  the  danger  of  allowing  contracts  to  be  proved  by  parol 
evidence,  at  periods  remote  from  those  at  which  they  were  made,  it  applies  in 
all  cases  where  the  obligation  or  duty  sought  to  be  enforced,  could  not  have 
been  fulfilled  within  a  year  from  its  date,  and  that  an  oral  promise  for  the 
payment  of  money,  or  the  performance  of  any  other  act  at  a  greater  distance 
of  time  than  a  year,  is  consequently  invalid,  whether  made  upon  an  executed 
or  executory  consideration ;  Cabot  v.  Haskins,  3  Pick.  83 ;  Holbrook  v. 
Armstrong;  Lockwood  v.  Barnes,  3  Hill,  128.  The  law  was  held  the  same 
way  in  Broadwell  v.  Gitman,  2  Denio,  87,  where  it  was  decided,  that  unless 
an  agreement  can  be  completely  executed  on  both  sides  within  a  year, 
it  must  be  in  writing.  It  is,  however,  universally  admitted,  that  no  one 
can  make  use  of  the  goods  or  services  of  another,  and  then  set  up  the  stat- 
ute, as  an  excuse  for  not  paying  for  them,  and  that  where  a  contract  has 
been  fully  performed,  and  the  performance  accepted,  a  recovery  may  be  had 
on  a  quantum  meruit  or  valebant,  if  not  on  the  contract  itself.  The  chief 
practical  difference,   therefore,  between  the  construction   adopted  in  Don- 


378  8  JI  I  T  n  '  S     L  E  A  1)  I  iN  Q     CASES. 

ellan  v.  Reed,  and  in  Cabot  v,  Ilaskins,  is  that  under  the  former  it  is 
enough  to  show  that  the  defendant  entered  into  the  contract  and  that  it  was 
performed,  while  under  the  latter  it  must  appear,  that  he  assented  to  or 
benefited  by  the  performance. 

As  the  courts  have  no  common  law  or  statutory  power  to  apportion  an 
entire  contract,  it  necessarily  follows  that  where  one  part  of  such  a  contract 
is  invalidated  by  the  statute,  the  rest  must  share  the  same  fate  even  when  it 
would  have  been  valid  if  standing  alone ;  Crawford  v.  Morell,  8  Johnson, 
253  ;  Holloway  V.  Hampton,  4  B.  Monroe,  415.  Thus  it  is  well  settled,  that 
where  an  entire  contract  for  the  sale  of  really  and  personalty  (as  when  land 
is  sold  wath  the  standing  crops  or  timber],  is  avoided  by  the  statute  to 
the  realty,  it  must  necessarily  fail  as  to  the  personalty  also;  Hock  v. 
Thayer,  13  Wend.  53.  The  same  point  was  decided  in  Loomis  v.  Newhall, 
15  Pick.  166,  with  regard  to  a  contract  which  fell  in  part  within  the 
direct  operation  of  the  statute,  and  which  was  consequently  held  to  be  wholly 
invalid. 


[n4G]  ^CUMBER    v.    WANE. 

TRINITY,  5  GEO.  I. 
[REPORTED,   i   STRANGE,  426.] 

Giving-  a  note  for  5/.  cannot  be  pleaded  as  a  satisfaction  for  15Z. 
If  one  party  die  during  a  Curia  advisari  vull,  judgment  may  be  entered  nunc  pro 
tunc. 

Error  c  C.  B.  in  an  indchitaius  assumpsit  (or  151.  The  defendant  pleads, 
that  he  gave  the  plaintiff  a  promissory  note  for  oL  in  satisfaction,  and  that 
the  plaintiff  received  it  in  satisfaction.  The  plaintiff  put  in  an  immaterial 
replication,  to  which  the  defendant  demurred.  And,  after  judgment  for  the 
plaintiff,  it  was  objected  on  error,  that  the  plea  was  ill,  it  appearing  that  the 
note  for  5/.  could  not  be  a  satisfaction  for  15^,,  and  that  where  one  contract 
is  to  be  pleaded  in  satisfaction  of  another,  it  ought  to  be  a  contract  of  a 
higher  nature.  Ilob.  68  ;  2  Keb.  804.  One  bond  cannot  be  pleaded  in 
satisfaction  of  another.  1  Mod.  225 ;  2  Keb.  851.  Even  the  actual  pay- 
ment of  5?.  would  not  do,  because  it  is  a  less  sum.  5  Co.  117;  1  Leon. 
19.     Much  less  shall  a  note  payable  at  a  future  day. 

E  contra.  It  was  argued,  that  the  plaintiff's  demand  consisting  only  in 
damages,  it  was  for  his  benefit  to  have  it  reduced  to  a  certainty,  and  to  have 
the  security  for  it  made  negotiable.*      A  stated  account  may  be  pleaded  in 

*  [The  argument  was  consiJcred  valid  in  Sibree  v.  Tripp,  15  M.  vV  W.  23.] 


CUBIBER     V.     WANE.  879 

bar  of  an  action  of  covenant.  4  Mod.  43 ;  1  Mod.  261 ;  1  Roll.  Abr.  122. 
Formerly  indeed  executory  promises  were  not  beld  a  satisfaction,  but  the 
contrary  Las  been  since  adjudged,  Raym.  450  ;  Salk.  7G.  And  now  it  is 
held  that  an  award  before  performance  is  a  bar  of  the  former  action. j" 

Et per  Pratt,  L.  C.  J.  (on  consideration.)     We  are  all  of  opinion   that 
the  plea  is  not  good,  and  therefore  the  judgment  must  be  affirmed.     As  the 


plaintiff  had  a  good  cause  of  *action,  it  can  only  be  extinguished  by 


[n47] 


a  satisfaction  he  agrees  to  accept ;  and  it  is  not  his  agreement  alone 
that  is  sufficient,  but  it  must  appear  to  the  court  to  be  a  reasonable  satisfac- 
tion ;  or  at  least  the  contrary  must  not  appear,  as  it  does  in  this  case. (a) 
If  5/.  be  (as  is  admitted)  no.  satisfaction  for  15^.,  why  is  a  simple  contract 
to  pay  5?.  a  satisfaction  for  another  simple  contract  of  three  times  the  value  ? 
In  the  case  of  a  bond,  another  has  never  been  allowed  to  be  pleaded  in 
satisfaction,  without  a  bettering  of  the  plaintiff's  case,  as  by  shortening  the 
time  of  payment.  Nay,  in  all  instances  the  bettering  his  case  is  not  suffi- 
cient, for  a  bond  with  sureties  is  better  than  a  single  bond,  and  yet  that  will 
not  be  a  satisfaction.  1  Brownl.  47.  71;  2  Roll.  Abr.  470.  The  judg- 
ment therefore  must  be  affirmed. (i) 

Then  it  was  alleged,  that,  since  the  time  when  the  court  took  to  advise, 
the  defendant  in  error  was  dead;  and  therefore  they  prayed,  that  they 
might  enter  the  judgment  nunc  pro  tunc,  as  was  done  in  the  case  of  Bailer 
V.  Delander,  Trin.  1  Greo.  in  B.  R.,  which  was  ordered  accordingly. (c) 


I 


The  main  point  in  this  case,  viz.  that  and  paid  them  seven  shillings  in  the 
a  security  of  equal  degree  for  a  smaller  pound,  and,  at  the  time  of  such  payment 
sum,  if  it  presented  no  easier  or  better  to  the  plaintiff,  promised  to  pay  him  the 
remedy,  cannot  be  pleaded  in  an  action  residue  of  his  debt,  when  he  should  be 
for  the  larger  one,  has  frequently  been  of  ability  so  to  do,  which  he  was  proved 
affirmed  since  the  decision  of  Cumber  to  have  been  before  this  action  brought. 
V.  Wane  ;  [although  the  doctrine  laid  On  the  other  hand,  the  defendant  pro- 
down  by  Pratt,  C.  J-,  in  delivering  the  duced  a  receipt  signed  by  the  plaintiff, 
judgment  of  the  court,  has  not  been  to  for  the  composition,  and  which  purported 
its  full  extent  sustained,  Sibree  v.  to  be  in  full  of  all  demands.  And  it  was 
Tripp,  1.5  JVl.  &  W.  2:i.]  In  Fitch  v.  urged  that  the  receipt  was  either  a  dis- 
Sutton,  5  East,  230,  the  action  was  charge  of  the  promise,  or  that  the  pro- 
indebitatus  assumpsit  for  goods  sold  mise  itself  was  void,  as  being  a  fraud 
and  delivered.  Plea,  non  assumpsit,  upon  his  creditors,  or  that,  at  all  events, 
At  the  trial  it  appeared  that  the  de-  the  plaintiff  ought  not  to  have  declared 
fendant,  who  owed  the  plaintiff'  50Z.  upon  the  original  cause  of  action,  but 
had    compounded    with    his    creditors,  specially  upon  the  new  promise  to  pay 

t  See  CroTts  V.  Harris,  Cartb.  187;  Parslow  v.  Baily,  Salk.  76 ;  Freeman  v.  Bernard, 
Saik.  69;  Allen  v.  Milner,  2  Tyrwh.  113. 

{a)  [See  Pritchard  v.  Hitchcock,  6  Sc.,  N.  R.,  851,  where  an  issue  joined  upon  the  fact 
of  payment  in  satisfaction  was  sustained  by  evidence  that  the  payment  relied  upon  was 
void,  as  being-  a  fraudulent  preference,  and  that  the  assignees  had  recovered  the  amount.] 

(&)  Taylor  v.  Baker,  5  Mod.  136.  But  the  present  case  was  denied  to  be  law  in  Hard- 
castle  V.  Howard,  H.  26  Geo.  3.  Vide  2  Term  Rep.  28.  See  also  Kearslake  v.  Morgan, 
5  Term  Rep.  513. 

(c)  Craven  v.  Henley,  Barnes,  255  ;  Astley  v.  Reynolds,  Str.  917;  Tookcr  v.  Duke  of 
Beaufort,  1  Burr.  147.  Sir  John  Trelawney  v.  Bisliop  of  Winchester,  lb.  226,  S.  P.  Vide 
also  1  Leon.  287;  1  Sid.  462;  1  Vent.  58.90.  But  Blackball  v.  Heal,  Comp.  Rep.  13, 
contra. 


380 


SMITHS  LEADING  CASES. 


when  of  ability.  But  the  court  in  banc 
after  a  verdict  for  the  defendant,  made  a 
rule  for  a  new  trial  absolute  on  the  ex- 
press grounds  tliat  the  acceptance  of 
ni.  lOs.  could  not  be  a  satisfaction  for 
a  debt  of  501.  "  There  must  be  some 
consideration,"  said  Lord  Ellenborough, 
"for  the  relinquishment  of  the  residue, 
something  collateral,  to  show  the  possi- 
bility of  benefit  to  the  party  relinquish- 
ing his  further  claim,  otherwise  the 
agreement  is  nudum  pactum.  But  the 
mere  promise  to  pay  the  rest,  when  of 
ability,  puts  the  plaintiff  in  no  better 
condition  than  he  was  before.  It  was 
expressly  determined  in  Cumber  v. 
Wane,  that  acceptance  of  a  security  for 
a  lesser  sum  cannot  be  pleaded  in  satis- 
faction of  a  similar  security  for  a  great- 
er. And  though  that  case  was  said  by 
me,  in  argument  in  Heathcote  v.  Crook- 
shanks,  to  have  been  denied  to  be  law, 
and  in  confirmation  of  that  Mr.  J.  Bul- 
ler  afterwards  referred  to  a  case,  stated 
to  be  that  of  Hardcastle  v.  Howard,  H. 
26  G.  3,  yet  I  cannot  find  any  case  of 
that  sort,  and  none  has  been  now  refer- 
red to:  on  the  contrary, the  authority  of 
Cumber*   v.    Wane   is    directly 


[*148] 


supported     by     Pinnell's     case, 


virhich  never  appears  to  have  been  ques- 
tioned." The  other  judges  concurred, 
and  Lawrence,  J.,  referred  to  Co.  Litt. 
212.  b.,  and  to  Adams  v.  Tapling,  4 
Mod.  88,  as  confirmatory  of  the  same 
doctrine,  in  the  former  of  which  it  was 
laid  down  that  "  where  the  condition  is 
for  payment  of  201.  the  obligor  or  feof- 
for cannot,  at  the  time  appointed,  pay  a 
lesser  sum  in  satisfaction  of  the  whole, 
because  it  is  apparent  that  a  lesser  sum 
cannot  be  a  satisfaction  of  a  greater. 
But  if  the  obligee  or  feoffee  do  at  the 
day  receive  part,  and  thereof  make  an 
acquittance,  under  his  seal,  in  full  satis- 
faction of  the  whole,  it  is  sufficient  by 
reason  the  deed  amounteth  to  an  acquit- 
tance of  the  whole.  If  the  obligor  or 
lessor  pay  a  lesser  sum,  either  before  the 
day,  or  at  another  place,  than  is  limited 
by  the  condition,  and  the  obligee  or  fe- 
offee receiveth  it,  this  is  a  good  satisfac- 
tion." (See  the  cases  on  this  point  col- 
lected S.  N.  P.  Debt  on  Bond ;  and  see 
Worthington  v.  Wigley,  3  Bingh.  N.  C. 
454). 

Fitch  V.  Sutton  is  stated  thus  at  length, 
because  it  is  perhaps  more  frequently 
referred  to  than  any  other  case  upon 
this  subject ;  the  doctrine  there  laid 
down,  viz.  that  a  similar  security  for  a 


smaller  debt  cannot  be  pleaded  in  satis- 
faction of  a  larger  one,  has  been  fre- 
quently affirmed,  both  before  and  since. 
See  Heathcote  v.  Crookshanks,  2  T,  R. 
24;  Pinnell's  case,  5  Rep.  117;  Lynn 
V.  Bruce,  2  H.  BI.317;  Thomas  v.  Hea- 
thorn,  2  B.  &  C.  477;  3  D.  &  R.  647, 
S.  C.  [Mitchell  v.  Cragg,  10  M.  &  W. 
367,  where  to  a  demand  for  16/.  a  plea 
stating  an  agreement  to  set  off  4Z.  a7id 
the  price  of  a  horse  in  satisfaction  was 
considered  bad  because  the  price  of  the 
horse  might  have  been  less  than  the 
difference].  And  though  it  was  once 
ruled  at  Nisi  Prius,  that  a  creditor  who 
had  given  a  receipt  in  full  of  all  de- 
mands, would  be  thereby  precluded  from 
insisting  afterwards  upon  any  demand 
prior  to  such  receipt;  Ainer  v.  George, 
1  Camp.  392:  yet  it  is  clear,  both  upon 
general  principle,  and  from  the  decisions 
in  Fitch  v.  Sutton,  and  other  cases,  that 
such  an  instrument,  not  being  an  es- 
toppel, cannot  prevent  the  plaintiff  from 
insisting  that  part  of  his  demand  remains 
unsatisfied.  See  Graves  v.  Key,  3  B.  & 
Ad.  313 ;  Skaife  v.  Jackson,  3  B.  &  C. 
421 ;  Stratton  v.  Rastall,  2  T.  R.  366, 

It  must  be  observed,  that  later  cases 
seem  to  have  engrafted  on  the  doctrine, 
that  a  smaller  sum  can  be  no  satisfaction 
for  a  larger  one  payable  in  the  same 
manner,  this  distinction,  that,  although, 
where  there  is  a  liquidated  debt,  the  rule 
laid  down  in  Cumber  v.  Wane  prevails, 
yet,  if  there  be  not  a  liquidated  debt,  but 
an  unliquidated  demand  of  pecuniary 
damages,  in  that  case  the  acceptance  of 
a  smaller  sum  than  the  plaintiff  may 
have  originally  claimed  will  be  a  satis- 
faction of  his  whole  demand,  and  a  good 
answer  to  an  action  in  respect  of  it. 
This  distinction  seems  to  have  origina- 
ted in  the  case  of  Longridge  v.  Dorville, 

5  B.  &  A.  117  ;  it  was  discussed  in  Wal- 
ters V.  Smith  2  B.  «t  Adol.  889,  [and 
Haigh  V.  Brookes,  10  A.  &  E.  309,]  and 
approved  in  Wilkinson  v.  Byers,  1  Adol. 

6  Ell.  106.  That  was  an  action  of  as- 
sumpsit;  the  declaration  slated  that  T. 
R.,  as  the  defendant's  attorney,  had  sued 
the  plaintiff  in  the  Palace  Court  for  13/. 
10s.,  which  action  was  depending;  and 
thereupon,  in  consideration  that  the 
plaintiff  would  pay  the  defendant  the 
13/.  10s.,  the  defendant  promised  the 
plaintifi'  to  settle  with  the  said  attorney 
for  the  costs  of  the  action,  and  indemni- 
fy the  plaintiff  against  them;  that  plain- 
tiff accordingly  paid  the  13/.  10s.;  but 
that  defendant  neglected  to  settle  with 


CUMBER     V.     WANE. 


381 


the  attorney,  who  proceeded  with  the 
action  and  signed  judgment  against  the 
plaintiff,  who  vvas  obliged  to  pay  11. 10s. 
costs,  and  3Z.  in  endeavouring  to  set 
aside  the  judgment.  At  the  trial,  it  ap- 
peared that  Byers,  the  present  defendant, 
was  a  wood-turner,  who  had  done  work 
for  Wilkinson,  the  present  plaintiff,  to 
recover  a  compensation  for  which  the 
action  had  been  brought.  A  verdict  was 
found  for  the  plaintiff,  subject  to  the 
opinion  of  the  court,  upon  the  question, 
whether,  as  the  payment  of  the  ISl.  10s. 
was  a  payment  in  discharge  of  an  ad- 
mitted debt,  it  could  be  any  consideration 
for  the  defendant's  promise  to  indemnify 
the  plaintiff  against  the  costs  of  the  Pa- 
lace Court  action.  The  court  held  that 
the  verdict  was  right.  "The  case," 
said  Parke,  J.,  "maybe  decided  shortly 
on  this  ground.  If  an  action  be  brought 
on  a  quantum  meruit,  and  the  defendant 
agree  to  pay  a  less  sum  than  the  demand 
in  full,  that  is  a  good  consideration  for  a 
promise  by  the  plaintiff  to  pay  his  own 
costs,  and  proceed  no  further.  Payment 
of  a  less  sum  than  the  demand  has  been 
held  to  be  no  satisfaction  in  the  case  of 
a  liquidated  debt;  but  where  the  debt  is 
unliquidated,  it  is  sufficient.  Now,  here 
r*l4Q1  ^^  cannot  say  that  *there  was 
L  '  J  originally  any  certain  demand. 
A  jury,  if  asked,  could  not,  in  my  opin- 
ion, have  said  so.  In  the  great  majority 
of  actions  of  this  nature,  for  work,  la- 
bour, and  goods  sold,  it  is  not  a  specific 
sum  that  forms  the  subject  matter  of  the 
action  ;  and,  unless  that  could  have  been 
shown  in  the  present  case,  there  was  a 
good  consideration  for  the  promise." 
Vide  tamen  per  Littledale,  J.,in  Wright 
V.  Acres,  6  A.  »Sz.  E.  729.  The  principle 
laid  down  in  Longridge  v.  Dorville  was 
approved  of  in  Atlee  v.  Backhouse,  3  M. 
Welsh.  651,  per  Parke  B.  [And  in 
Sibree  v.  Tripp,  15  M.  Sl  W.  23.]  In 
Down  V.  Hatcher,  10  A.  &  E.  121,  a 
plea  of  payment  of  61.  10s.  in  satisfac- 
tion of  200/.  was  held  bad  after  verdict. 
No  reason  is  assigned  for  the  decision, 
but  probably  it  may  have  proceeded  on 
the  ground  that  the  plaintiff's  demand 
(which  was  for  use  and  occupation  agist- 
ment and  on  an  account  stated)  was,  pri- 
ma facie,  to  be  considered  liquidated, 
and  that,  if  the  amount  was  in  dispute 
at  the  time  of  the  accord,  that  ought  to 
have  been  pleaded  specially;  in  Wilkin- 
son V.  Byers,  it  will  be  remembered  that 
the  special  matter  appeared  on  the  de- 
claration. 


[In  Edwards  v.  Baugh,  11  M.  &  W. 
641,  the  declaration  stated  that  disputes 
were  pending  between  plaintiff  and  de- 
fendant as  to  whether  defendant  was  in- 
debted to  plaintiff  in  173Z.  2s.  '3d.  for 
money  lent,  &,c.,  and  that,  in  considera- 
tion that  the  plaintiff  would  promise  the 
defendant  not  to  sue  him  for  it,  and 
would  accept  100?.  in  satisfaction,  the 
defendant  promised  to  pay  him  1001. 
This  was  held  bad  on  general  demurrer. 
Lord  Abinger  saying  that  it  might  have 
been  sufficient  had  the  declaration  shown 
some  debt  due  and  a  dispute  as  to  the 
amount.  See  per  Parke,  B.,  Sibree  v. 
Tripp,  15  M.  &  W.  36.  Accordingly, 
where  the  ^declaration  stated  r*i4n„-] 
unsettled  accounts  and  disputes    ■-  ^ 

concerning  them,  and  mutual  claims  to 
the  balance,  and  that  in  consideration 
that  the  plaintiff  would  relinquish  all 
claims  against  the  defendant,  he  pro- 
mised, &c.,  it  was  held  sufficient.  Llew- 
ellyn v.  Llewellyn,  3  Dowl.  &  L.  318, 
Patteson,  J.  And  the  suspension  or 
abandonment  of  an  action  or  suit  is  pre- 
sumed to  be  a  good  consideration,  unless 
the  contrary  distinctly  appear.  Smith  v. 
Monteith,  13  M.  &  W.  427. 

In  Sibree  v.  Tripp,  15  M.  &  W.  23, 
the  case  of  Cumber  v.  Wane  was  much 
observed  upon,  and  the  decision  qualified 
to  this  extent,  that  a  negotiable  security 
may  operate,  if  so  given  and  taken,  in 
satisfaction  of  a  debt  of  greater  amount, 
the  circumstance  of  negotiability  mak- 
ing it,  in  fact,  a  different  thing  and  more 
advantageous  than  the  original  debt, 
which  was  not  negotiable.  And  Parke, 
B.,  observed  upon  Cumber  v.  Wane,  and 
Thomas  v.  Heathorn,  "  The  reasoning 
of  Pratt,  C.  J.,  in  the  former  case  is 
certainly  not  correct,  for  we  cannot  in- 
quire into  the  reasonableness  of  the 
satisfaction.  But  there  it  did  not  appear 
that  the  note  was  a  negotiable  one  ;  and 
the  point  now  belore  the  court  was  not 
made.  .  in  Tliomas  v.  Heathorn  it  does 
not  appear  to  have  been  a  case  of  accord 
and  satisfaction;  although  the  bill  ac- 
cepted by  the  defendant  was  a  negotiable 
security  it  does  not  appear  that  it  was 
given  by  way  of  accord  and  satisfac- 
tion."] 

It  was  once  thought,  that  when,  upon 
the  dissolution  of  a  firm,  the  partner 
who  remained  in  trade  agreed,  as 
generally  happens,  to  take  upon  him- 
self the  debts  of  the  late  firm,  a  cre- 
ditor of  the  whole  body  would  not,  by 
assenting     to    this    arrangement,    dis- 


382 


SMITHS     LEADING     CASE 


charge  the  retirinrr  partner  from  liabi- 
lity:  a  nation  principally  founded  on  tlie 
decisions  in   IJavie  v.  Ellice,  5  B.  ti,  C. 
196;  Lodpe  v.  Dicas,  3  B.  &.   A.  611  ; 
by  whici),  however,  it  was  not  perhaps 
warranted  to  its  full  extent.     This  doc- 
trine, which  was  based  on  a  ground  sim- 
ilar to  that  on  whicli  Cumber  v.  Wane 
was  decided,  viz.  that  there  would  be  no 
consideration  to  the  creditor  for  such  an 
arrangement,  had  been  much  complained 
of,  and  at   last  came    to  be  canvassed 
solemnly  in  Thompson  v.  Percival,  5  B. 
&  Adol.  925;    3  Nev.  &  Mann.  1G7. 
That  was  an  action  against  James  and 
Charles  Percival,  for  goods  sold  and  de" 
livered.     James  pleaded  bankruptcy,  on 
which  the  plaintiff'  as  to  him  entered   a 
nolle  prosequi,      Charles   pleaded    the 
general  issue,  and  at  the  trial  it  appeared 
that  James   and    Charles   had    been  in 
partnership,  which  was  dissolved  in  the 
usual  way,  James  to  continue  in  the  bus- 
iness, and  to  receive  and  pay  all  debts. 
At   the   time  when  notice  of  the   dis- 
.wlution  was  first  given  to  the   plaintiff, 
he     iiad    a   demand    on  the    firm,    for 
which  James  told  him  he  must  look  to 
ri4Q/l  *'^i'"  alone.   He  afterwards  drew 
L         -'a  bill  on  James  for  its  amount, 
which   was   dishonoured.      Upon    these 
f-icts,  a  verdict  being  found  for  the  plain- 
tiff,  the   court  granted   a   new  trial,  in 
ordea:  that  the  jury  might  be  asked  vvhe- 
tiier  the  plaintiff  had  not  agreed  to  ac- 
cept  the   individual    liability  of  James, 
instead   of  the  joint   liability  of  James 
and  Charles;  and   it  was  held,  that,  if 
that  quet^tion  should  be  answered  in  the 
affirmative,  the  defendant  would  be  en- 
titled to  a  verdict.     "  Many  cases,"  said 
the  Lord   Chief  Justice,  delivering  the 
judgment  of  the   court,"   may   be   con- 
ceived, in  which  the  sole  liability  of  one 
of  two  debtors  may  be   more   beneficial 
than  the  joint  liability  of  two,  either  in 
respect  of  the  solvency  of  the  parties  or 
theconvenienceofthe  remedy, as  in  cases 
of  bankruptcy,  survivorship,  or  in  various 
other  ways;  and  whether  it  was  actually 
more  beneficial  in  each  particular  case 
cannot  be  made  the  subject  of  inquiry." 
Ace.  Winter  v.  Innes,  4  M.  &i  Cr.  109. 
In  Kirwan  v.  Kirwan,  4  Tyrwh.  491,  a 
similar  point  occurred.     That  case  was 
decided  upon  special  circumstances;  but 
from   it,  as  well   as  from   Thompson  v. 
Percival,  the  following  rule  may  be  col- 
lected :    viz.    that   niei  e    knowledge   of 
such  an  arranirement  amongst  members 
of  a   partnership  about  to   be  dissolved 


will  not  bind  tlie  creditor  of  the  firm, 
but  that  his  own  agreepient  to  accept 
the  transfer  of  liability  will ;  and  that 
the  question,  whether  he  have,  or  have 
not,  entered  into  such  an  agreement,  is 
a  question  proper  to  be  decided  upon  by 
a  jury.  [See  Hart  v.  Alexander,  2  M. 
&  W.  464;  Powles  v.  Page,  3  C.  B. 
16,] 

There  is  another  class  of  cases  also  of 
frequent  occurrence,  and  of  great  prac- 
tical importance,  which  are  exempted 
from  the  general  doctrine  laid  down  in 
Cumber  v.  Wane,  though  once  supposed 
to  fall  within  it;  those,  videlicet,  in 
which  a  debtor  has  induced  a  number  of 
his  creditors  to  accept  a  composition 
amounting  to  less  than  their  entire  de- 
mand. ISuch  an  agreement,  if  entered 
into  by  a  number  of  creditors,  each  act- 
ing on  the  faith  of  the  engagement  of 
the  others,  will  be  binding  upon  them  ; 
for  each,  in  that  case,  has  the  undertak- 
ings of  the  rest  as  a  consideration  for 
his  own  undertaking.  Reay  v.  White, 
3  Tyrwh.  .596 ;  1  C.  «&  M.  748,  S.  C. 
{Ace.  Daniels  v.  Hatch  et  al.,  1  Zabris- 
kie,  391,  394,  and  Aiken  v.  Price,  1 
Dudley,  50  :  and  it  is  not  necessary  that 
all  the  creditors  should  enter  in  the 
agreement;  Norman  v.  Thompson,  4 
Exchequer,  75.5.}  And  so  of  an  agree- 
ment to  give  time.  Goode  v.  Cheese- 
man,  2  B.  &  Ad.  323.  But  if  one  of 
the  creditors  be  afterwards  refused  the 
benefit  held  out  to  him  by  the  arrange- 
ment, it  will  cease  to  be  binding  on  him. 
Garrard  v.  Woolner,  8  Bing.  258.  So, 
if  the  consideration  in  any  manner  fails, 
the  agreement  is  at  an  end.  Thus,  if 
some  creditors  sign  on  the  faith  that 
others  will  do  so,  if  the  others  hold  out, 
those  who  have  subscribed  already  are 
not  bound.  Reay  v.  Richardson,  2  C 
M.  &  R.  422.  So  if  it  purport  to  pass 
an  *intere3t  in  lands,  but  want  r:j.,  (-n-i 
the  formalities  required  by  the  '-  ^ 
Statute  of  Frauds,  it  will  not  bind  the 
creditors.  Alchin  v.  Hopkins,  1  Bing. 
N.  S.  99.  Nor  will  the  debtor  be  enti- 
tled to  the  benefit  of  it  if  he  neglect  to 
])erform  accurately  what  is  to  be  done 
on  his  part.  Thus  he  must  tender  the 
composition  money  on  the  appointed 
day;  for  as'  Lord  Elleiiborough  said,  in 
Cranley  v.  Hillary,  2  M.  &  S.  120,  the 
party  to  Ife  discharged  is  bound  to  do  the 
act  which  is  to  discharge  him;  accord. 
Shiplon  V.  Casson,  5  B.  &  C.  378;  Wen- 
ham  V.  Fowie,  3  Dovvl.  43  ;  [llosling  v. 
Muggeridge,  16  M.  &  W.  181;  Evans 


CUMBER     V.     WANE. 


383 


V.  Powis,  1  Exch.  601;  unless,  indeed, 
the  creditor  have  positively  refused  to 
accept  less  tiian  his  original  demand,  in 
which  case  he  is  taken  to  have  waived 
a  tender.  Reav  v.  Whyte,  3  Tyrwh. 
596 ;  1  C.  &  M.'749,  S.  C.  See  Cooper 
V.  Phillips,  5  Tyrwh.  170. 

{It  is  settled,  that  where  one  creditor, 
by  undertaking'  to  discharge  his  debtor, 
induces  oilier  creditors  to  accept  a  com- 
position, and  discharge  the  debtor  from 
further  liability,  he  cannot  afterwards 
enforce  his  claim,  since  it  would  be  a 
fraud  upon  other  creditors.  But  to  make 
a  valid  composition,  the  debtor  must  be 
insolvent  or  in  embarrassed  circum- 
stances, the  other  creditors  must  have 
released  or  agreed  to  release;  they,  or 
third  persons,  must  be  e.xposed  to  preju- 
dice or  injury  from  the  creditors'  reiusal 
to  release,  and  the  debtor  must  have 
duly  performed  or  tendered  the  terms  of 
the  composition.  Cutter  &  Co.  v.  Rey- 
nolds, tt  B.  IMonroe,  596.} 

The  general  doctrine  in  Cumber  v. 
Wane,  and  the  reason  of  all  the  excep- 
tions and  distinctions  which  have  been 
engrafted  on  it,  may  perhaps  be  summed 
upas  follows:  viz.  that  a  creditor  cannot 
bind  himself  by  a  simple  agreement  to 
accept  a  smaller  sum  in  lieu  of  an  as- 
certained debt  of  larger  amount,  such  an 
agreement  being  nudum  pactum.  But 
if  there  be  any  benefit,  or  even  any  legal 
possibility  of  benefit,  to  the  creditor 
thrown  in,  that  additional  weight  will 
turn  the  scale,  and  render  the  considera- 
tion sufficient  to  support  the  agreement. 
Si-e  Steinman  v.  Magnus,  2  Camp.  12-4; 
11  East,  390;  Bradley  v.  Gregory,  2 
Ciimp.  3r<3 ;  Wood  v.  Roberts,  2  Stark. 
417;  Booihby  v.  Sowden,  3  Camp  175; 
[Sibree  v.  Tripp,  15  M.  &,  \V.  23.]  It 
IS  laid  dou'n  in  most  of  the  earlier  au- 
thorities, that  an  accord  to  avail  must  be 


executed ;  and  that  doctrine  is  affirmed 
by  Bayley  v.  Iloman,  3  Bingh.  N.  C. 
915.  iSee  Allies  v.  Probyn,  5  Tyrwh. 
1079;  Edwards  v.  Chapman,  1  M.  &, 
Welsh.  231 ;  Reeves  v.  Ilearne,  1  M, 
&  W.  320;  Collingbourne  v.  Mantell,5 
M.  &L  W.  292.  On  the  other  hand,  it  is 
said  in  Com  Dig.  B.  4,  "An  accord  with 
mutual  promises  to  perform  is  good, 
though  the  thing  be  not  performed  at 
the  time  of  action,  for  the  party  had  a 
remedy  to  compel  the  performance." 
See  Good  v.  Cheeseman,  ubi  supra.  The 
rational  distinction  seems  to  be,  that  if 
the  promise  be  received  in  satisfaction, 
it  is  a  good  satisfaction;  but  if  the  per- 
formance not  the  promise  is  intended  to 
operate  in  satisfaction,  there  shall  be  no 
satisfaction  without  performance.  See 
Reeves  v.  Hearne,  1  M.  &  VV.  326; 
[per  curiam  Evans  v.  Powis,  ubi  supr.-i]. 
The  same  distinction  is  made  in  the 
cases  cited  in  the  notes  to  Cutter  v. 
Powell,  vol.  ii.,  where  it  is  held  that, 
where  the  promise  on  one  side  is  the 
consideration  for  that  on  the  other,  fer- 
formance  is  not  a  condition  precedent  to 
the  right  of  action. 

*The  second  point  decided  in    r^-irn  -i 
this  case  is  an  exemplification    ^  J 

of  that  maxim  of  law — Actus  curico 
nemini  facil  injuriam,  for  the  delay  is 
the  act  of  the  court,  tlierefore  the  par- 
ties should  not  sufl^er  by  it.  Ace.  Toul- 
min  V.  Anderson,  1  Taunt.  385.  See 
Lanman  v.  Lord  Audley;  2  M,  &  VV. 
535;  Vaughan  v.  Wilson,  4  Bing.  N.  C. 
116.  [Evans  v.  Rees,  12  A.  &  E.  167; 
Miles  V.  Bough,3  Dowl.  &  L.  105;  Har- 
rison V.  Heathorn,  6  Scott,  N.  R.  794. 
The  practice  only  prevails  in  cases  of 
delay  by  the  act  of  the  court;  Wilkes 
V.  Parks,  5  Man.  &  Gr.  376;  6  Sc.  N. 
R.  42,  S.  C.  ;  Fishmongers'  Co.  v.  Ro- 
bertson, 3  C.  B.  970.] 


To  constitute  a  good  accord  and  satixfiction,  tlie  following  particulars 
seems  to  be  necessary. 

1.  The  matter  agreed  to  l)o  received  in  satisfaction  of  the  debt,  must  be 
something  of  legal  value,  to  which  the  creditor  before  was  not  entitled. 

2.  Every  part  of  the  matter  agreed  to  be  received  as  satisfaction,  must  be 
effectual,  so  that  if  a  part  fail,  or  do  not  take  effect,  the  whole  agreement  is 
bad. 

It  seems  from  thi.-,  that  the  legal  notion  of  accord  is,  a  new  agreement 


384  smith's   leading   cases. 

on  a  new  consideration,  to  discbarge  the  debtor;  and  tbis  agreement  comes 
within  the  general  principles  of  law  as  to  contracts;  the  consideration  must 
have  legal  value,  and  every  part  of  the  alleged  consideration  must  take 
effect. 

3.  The  accord  must  be  executed;  and  a  mere  executory  agreement  by 
the  debtor  can  never  be  pleaded  as  an  accord  and  satisfaction. 

4.  Another  rule  of  no  great  practical  value,  is,  that  the  matter  received 
in  satisfaction  must  be  given  by  the  debtor,  and  not  by  a  stranger  :  Clow  v. 
Eorst  and  Best,  G  Johnson,  37;  Stark's  Adm'r  v.  Thompson's  Ex'rs,  3 
Monroe,  296. 

These  are  the  technical  rules  which  relate  to  this  plea ;  and  the  general 
principle  to  be  deduced  from  them,  in  regard  to  the  present  subject,  is,  that 
any  thing  of  legal  value,  whether  a  chose  in  possession  or  in  action,  i.  e. 
any  legal  interest  or  right,  which  the  creditor  had  not  before,  agreed  to  be 
received,  and  actually  received,  in  full  satisfaction  of  the  debt,  is  a  good 
satisfaction,  without  regard  to  the  comparative  magnitude  of  the  satisfaction 
with  the  original  debt ;  and  may  be  pleaded  in  bar,  as  accord  and  satisfac- 
tion. The  matter  given  and  received  must  have  legal  value  and  be  of  advan- 
tage to  the  creditor  (or  a  disadvantage  to  the  other) ;  that  is,  must  vest  in 
the  creditor  an  interest  or  right  which  he  had  not  before  ;  and  hence, 
giving  what  was  really  the  creditor's  own  before,  or  giving  a  note  of  a  third 
person  which  from  the  infancy  of  the  person  making  it,  is  nought,  or  assign- 
ing accounts  or  orders  on  which  an  action  is  not  maintainable,  or  where  the 
assignment  is  not  valid,  is  bad  as  an  accord  and  satisfaction ;  because  there 
is  no  valid  consideration  for  the  accord.  Keeler  v.  Neal,  2  Watts,  424 ; 
Davis  V.  Noaks,  3  J.  J.  Marshall,  494 ;  Commonwealth  for  the  use  of 
Johnston  v.  Miller,  5  Monroe,  205;  Nave  v.  Fletcher,  4  Littell,  242; 
Buddicum  v.  Kirk,  3  Crauch,  293;  and  if  j^art  of  the  consideration  agreed 
on  be  not  performed,  the  whole  accord  fails;  Nave  v.  Fletcher.  But,  if 
the  consideration  of  the  accord  be,  some  interest  or  right  of  action  vested  in 
the  creditor  which  he  had  not  before,  though  it  be  smaller  than  the  original 
debt,  this  is  good ;  and  if  it  be  proved  that  it  was  wjreed  that  this  matter 
should  be  a  satisfaction  of  the  debt;  this  constitutes  a  valid  accord  and  sat- 
isfaction :  it  being  necessary  and  sufficient  to  a  plea  of  accord  and  satisfac- 
tion, that  there  should  be  a  promise  on  valid  consideration,  to  treat  the  debt 
as  satisfied,  and  that  this  contract  should  be  executed  by  the  delivery  and 
acceptance  of  the  consideration.  Hence,  delivery  and  acceptance  in  satis- 
faction, of  some  collateral  thing;  as,  commodities,  though  confessedly  of 
less  value  than  the  money  due;  Jones  v.  Bullett,  2  Littell,  49;  or,  the  pro- 
missory note  or  endorsement  of  a  third  person  ;  Booth  v.  Smith,  3  Wendell, 
GG  ;  New  York  State  Bank  v.  Fletcher,  5  id.  85 ;  Frisbie  &  M'Kinley  v. 
Larned  and  Corning,  21  id.  451;  BuUen  et  al.  v.  M'Gillicuddy,  2  Dana, 
90 ;  Pope  v.  Tunstall  and  Waring,  3  Pike,  209  ;  and  even  though  the  note 
of  the  third  person  should  be  for  a  less  sum  than  the  original  debt;  Brooks 
and  another  v.  White,  2  Metcalf,  283 ;  Boyd  and  Suydam  v.  Hitchcock,  20 
Johnson,  76;  Le  Page  v.  M'Crea,  1  Wendell,  164;  Kellogg  and  Dumont 
v.  Richards  and  Sherman,  14  id.  116 ;  Sanders  v.  Branch  Bank  at  Decatur, 
13  Alabama,  353  ;  or  services  rendered  by  the  debtor,  such  as  building,  &c. ; 
Blinn  v.  Chester,  5  Day,  359  ;  or  an  assignment  of  all  the  debtor's  stock  in 
trade  and  outstanding  debts ;  Watkinson  v.  Ingleby  and  Stokes,  5  Johnson, 


CUMBER    V.    WANE.  385 

386 ;  or,  of  specific  real  estate  ;  Eaton  v.  Lincoln,  13  Massachusetts,  424  ; 
or  any  chattel;  per  M'Kean,  C  J.,  in  Musgrove  v.  Gibbs,  1  Dallas,  216; 
or  a  smaller  sum  of  money  before  the  day  on  which  the  original  debt  was 
due,  or  at  another  place ;  Smith  v.  Brown,  3  Hawks,  580 ;  Brooks  and 
another  v.  White,  2  Metcalf,  283;  Austin  v.  Dorwin,  21  Vermont,  39,  44; 
Spaun  V.  Baltzell,  1  Florida,  302,  316;  dictum  in  Milliken  and  another,  v. 
Brown,  1  Rawle,  391,  400,  403 ;  will  all  sustain  the  plea  of  accord  and 
satisfaction.  See  Warren  v.  Skinner,  20  Connecticut,  559,  561. 

And  it  is  not  enough  that  there  be  a  clear  agreement  or  accord, 
and  a  sufiicient  consideration,  but  the  agreement  or  accord  must  be  exe- 
cuted ;  Williams  v.  Stanton,  1  Root,  426 ;  Pope  v.  Tunstall  and  Waring,  3 
Pike,  209.  The  plea  must  allege  that  the  matter  was  accepted  in  satisfac- 
tion; Sinardv.  Patterson,  3  Blackford,  354;  Maze  v.  Miller,  1  Washington 
C.  C.  328,  329 ;  Morris  Canal  v.  Van  Vorst,  1  Zabriskie,  101 ;  mere  readi- 
ness to  perform  the  accord,  or  a  tender  of  performance,  will  not  do,  and  a 
plea  of  accord  and  tender  is  bad  upon  demurrer;  Russell  v.  Lytle,  6  Wen- 
dell, 390;  I-Iawley  v.  Foote,  19  id.  516  ;  The  Brooklyn  Bank  v.  De  Grauw 
and  others,  23  id.  342  ;  see  Spruneberger  v.  Dentlee,  4  Watts,  126,  and 
Rising  V.  Patterson,  5  Wharton,  316.  Coit  v.  Houston,  3  Johnson's  Cases, 
243,  and  Latapee  v.  Pecholier,  2  Washington  C.  C.  180,  184,  contain  dicta 
a  little  contra.  In  Fellows  and  others  v.  Stevens,  24  Wendell,  294,  it  was 
held,  that  tender  of  satisfaction  on  an  accord  is  not  sufficient  as  between 
debtor  and  creditor ;  but  if  other  creditors  are  parties  to  the  arrangement,  a 
tender  is  sufficient ;  but  even  then  it  would  seem  that  it  cannot  be  pleaded 
as  accord  and  satisfaction.  Proof  of  delivery  to,  and  acceptance  by,  an 
agent  of  the  creditor,  or  one  whose  act  is  afterwards  ratified,  will  sustain  the 
plea  of  accord  and  satisfaction ;  Anderson  v.  Highland  Turnpike  Co.,  16 
Johnson,  86;  Evans  v.  Wells,  22  Wendell,  325;  Eaton  v.  Lincoln,  13 
Massachusetts,  424 ;  and  if  a  judgment  be  given  to  a  trustee  for  satisfaction 
of  a  creditor,  and  the  creditor  affirm  the  arrangement  by  proceeding  on  the 
judgment,  this  is  an  acceptance;  and  the  plea  of  accord  and  satisfaction  will 
bo  good.  Seaman  v.  Haskins,  2  Johnson's  Cases,  195.  See  Phillips  v. 
Berger,  2  Barbour's  S.  Ct.  609,  612.  Though  the  accord  must  be  executed, 
yet  if  the  accord  were  to  accept  in  satisfaction  an  executory  obligation,  and 
the  accord  be  executed  by  giving  such  obligation,  there  seems  no  reason 
why  it  should  not  be  good.  See  Kinsler  et  al.  v.  Pope,  5  Strobhart,  126. 
See,  also,  Spann  v.  Baltzell,  1  Florida,  302,  313 ;  Morris  Canal  v.  Van 
Vorst,  1  Zabriskie,  101 ;  Evans  v.  Powis,  1  Exchequer,  601,  607. 

These  principles  apply  to  debts  due  by  instruments  under  seal,  as  well 
as  those  due  upon  simple  contract :  but  this  distinction  is  taken ;  that  a 
parol  accord  and  satisfaction  cannot  discharge  the  instrument  or  obligation, 
but  may  discharge  the  money  due  upon  it.  In  Strang  v.  A.  and  J.  Holmes, 
7  Cowen,  225,  it  is  decided,  that  giving  and  accepting  some  third  thing, 
as,  a  conveyance  of  land,  in  satisfaction  of  a  debt  due  by  bond,  is  a  good 
satisfaction :  and  this,  if  done  after  forfeiture  as  well  as  before,  because, 
since  the  statute  4  Ann.  ch.  16,  s.  13,  the  amount  due  upon  the  bond  after 
forfeiture  as  well  as  before,  the  is  sum  expressed  in  the  condition  :  and  the 
cases  there  reviewed,  show  that  if  such  satisfaction  be  specially  pleaded, 
the  plea  must  allege  that  the  matter  was  given  and  accepted  in  full  satis- 
faction of  the  amount  due  on  the  bond,  or  the  sum  mentioned  in  the  condi- 

VoL.  I.— 25 


386  smith's    leading    cases. 

tion,  and  not,  in  satisfaction  of  tlie  bond  or  obligation,  for  that  can  only  be 
discharged  by  instrument  under  seal ;  but  if  the  satisfaction  be  shown  by 
notice  under  the  general  issue,  this  technicality  may  be  avoided.  See,  also, 
Morris  Canal  v.  Van  Vorst,  1  Zabriskie,  101,  119.  Upon  the  same  distinc- 
tion it  is,  that  accord  and  satisfaction  before  breach,  without  release  by  deed, 
is  no  bar  to  an  action  of  covenant :  but  after  breach,  it  is  of  the  damages ; 
Harper  v.  Hampton,  1  Harris  &  Johnson,  622,  G75;  Smith  v.  Brown,  3 
Hawks,  580 ;  Cabe  v.  Jamesson,  10  Iredell,  193 ;  Payne  v.  Barnet,  2  Mar- 
shall's Kentucky,  312  :  and  to  the  same  effect  is  the  note  of  Serjt.  Manning, 
in  6  M.  &  Gr.  262,  note  (a). 

It  appears  from  the  foregoing  remarks,  that  to  make  a  good  accord  and 
satisfaction,  the  matter  given  and  received  must  be  some  new  thing,  to  which 
the  creditor  before  had  no  right.  It  seems  to  be  reasonably  well  settled  by 
the  American  cases,  that  the  giving  and  accepting  of  a  smaller  sum  of  money 
in  payment  or  satisfaction  of  a  larger  one  due,  is  not  a  valid  discharge,  and 
cannot  be  pleaded,  either  as  payment,  or  as  accord  and  satisfaction.  Dede- 
rick  V.  Leman  and  others,  9  Johnson,  333  ;  Harrison  v.  Wilcox  and  Close, 
2  id.  448;  dictum  in  Johnson  v.  Brannan,  5  id.  268,  271;  Seymour  v.  Min- 
ium, 17  id.  169;  Latapee  v.  Pecholier,  2  Wash.  C.  C.  180,  184;  White  v. 
Jordan,  27  Maine,  370,378;  Warren  v.  Skinner,  20  Connecticut,  559; 
Eve  V.  Mosely,  2  Strobhart,  203;  Gurley  v.  Hiteshue,  5  Gill,  218,  222.  In 
Johnson  v.  Brannan,  this  is  spoken  of,  as  the  "  rigid  and  rather  unreason- 
able rule  of  the  old  law :"  and  in  Kellogg  &  Dumont  v.  Bichards  &  Sher- 
man, 14  Wendell,  116,  where  the  acceptance  of  the  promissory  note  of  a 
third  party,  for  a  less  sum,  was  held  to  be  a  good  accord  and  satisfaction, 
the  court,  per  Nelson,  J.,  said,  "  It  is  true,  there  does  not  seem  to  be 
much,  if  any,  ground  for  distinction,  between  such  a  case,  and  one  where  a 
less  sum  of  money  is  paid,  and  agreed  to  be  accepted  in  full,  which  would 
not  be  a  good  plea.  *  *  The  rule  that  the  payment  of  a  less  sum  of 
money,  though  agreed  by  the  plaintiff  to  be  received  in  full  satisfaction  of  a 
debt  exceeding  that  amount,  shall  not  be  so  considered  in  contemplation  of 
law,  is  technical,  and  not  very  well  supported  by  reason.  Courts,  therefore, 
have  departed  from  it  upon  slight  distinctions."  In  Brooks  and  another  v. 
White,  2  Metcalf,  283,  where  the  same  point  is  decided,  the  court,  per 
Dewey,  J.,  says,  ''  The  foundation  of  the  rule  seems  to  be,  that,  in  the 
case  of  the  acceptance  of  a  less  sum  of  money  in  discharge  of  a  debt,  inas- 
much as  there  is  no  new  consideration,  no  benefit  accruing  to  the  creditor, 
and  no  damage  to  the  debtor,  the  creditor  may  violate  with  legal  impunity 
his  promise  to  his  debtor,  however  freely  and  understandingly  made.  This 
rule,  which  obviously  may  be  urged  in  violation  of  good  faith,  is  not  to  be 
extended  beyond  its  precise  import,  and  whenever  the  technical  reason  does 
not  exist,  the  rule  itself  is  not  to  be  applied.  Hence  the  judges  have  been 
disposed  to  take  out  of  its  application,  all  those  cases  where  there  was  any 
new  consideration,  or  any  collateral  benefit  received  by  the  payee,  which 
might  raise  a  technical  legal  consideration,  although  it  was  quite  apparent 
that  such  consideration  was  for  less  than  the  amount  of  the  sum  due." 
However,  the  case  of  Smith  v.  Bartholomew  and  another,  1  Metcalf,  276, 
affirms  the  old  principle,  and  comes  fairly  up  to  the  mark  of  Fitch  v.  Sutton. 
It  was  a  suit  against  G.  &  H.  on  a  joint  and  several  note  by  them  to  W.,  or 
bearer;  G.  was  defaulted,  and  the  suit  defended  by  H.,  who  produced  a 


CUMBER     V.     WANE.  387 

paper  signed  by  W.  acknowledging  the  receipt  of  part  of  the  money  from  II., 
and  agreeing  to  look  to  G.  for  the  rest.  It  will  be  observed,  that  the  note 
had  passed  into  other  hands,  and  that  might  have  afforded  sufficient  ground 
for  taking  all  effect  from  the  agreement ;  but  the  court  did  not  go  on  that 
ground  :  they  decided,  that  the  agreement  was  "  not  valid  and  obligatory, 
not  being  sustained  by  a  sufficient  consideration,"  and  said  ;  <<  The  payment 
of  a  debt  by  a  debtor,  the  same  being  due  and  payable,  is  not  a  sufficient 
consideration  to  support  a  promise.  It  is  not  considered  as  any  detriment 
to  the  debtor,  or  benefit  to  the  creditor.  The  one  pays  only  what  he  was 
bound  to  pay,  and  the  other  receives  no  more  than  his  just  debt.  Such  a 
consideration  is  merely  nominal  and  insignificant,  and  no  consideration  at 
all."  And  in  the  late  case  of  Pearson  and  Fant  v.  Thomason,  15  Alabama, 
700,  it  is  decided,  that  if  a  creditor  say  to  his  debtor,  who  is  in  insolvent 
circumstances,  that  if  he  will  pay  a  designated  sum,  constituting  but  a  part 
of  the  debt,  he  woukraccept  it  in  full  satisfaction,  and  the  debtor  thereupon 
pay  the  sum  named,  the  liability  is  not  discharged,  and  the  creditor  can  main- 
tain an  action  for  the  recovery  of  the  residue:  but  the  court  added,  that,  "  if, 
instead  of  paying  the  money,  the  defendant  had  paid  in  property,  or  in  a  note 
or  other  security  on  a  third  person,  or  had  delivered  up  to  the  plaintiff  a  note 
which  he  held  on  him  for  a  smaller  sum  than  the  debt  sought  to  be  reco- 
vered, in  either  of  these  cases,  we  should  be  inclined  to  think  the  satisfac- 
tion complete."  Barron,  ad'ra  v.  Vandvert,  ad'mr,  13  id;  232,  238,  is  to  the 
same  effect.  But  the  case  of  Milliken  and  another  v.  Brown,  1  Rawle,  391,  of 
which  the  circumstances  are  very  similar  to  Smith  v.  Bartholomew,  is  directly 
opposed  to  it.  It  is  there  decided,  that  accepting  from  one  of  three  joint 
debtors,  one-third  of  the  debt,  with  intent  to  exonerate  him,  is  a  valid  release 
of  him,  and,  therefore,  a  release  of  all.  The  reason  upon  which  this  was  re- 
garded as  a  release,  and  not  merely  as  an  agreement  not  to  sue,  may  be  pecu- 
liar to  that  case;  but  that  the  transaction  constituted  a  valid  discharge  of  the 
one  who  paid, — in  other  words,  that  the  acceptance  of  one-third  of  a  debt  from 
one  bound  to  pay  the  whole,  with  intent  to  discharge  him,  is  a  valid  discharge, 
— is  decided  upon  reasons  which  appear  to  be  of  general  application.  The 
case,  according  to  the  explanation  given  by  the  chief  justice,  was  decided  on 
the  ground  that  "the  creditor  had  agreed  on  snjicient  consideration,  to  ex- 
onerate one  of  the  three  debtors  entirely  from  liability,  and  the  most  sacred 
principles  of  justice  required,  that  this  agreement  should  be  performed  :" 
and  it  therefore  settles,  that  actual  payment  of  a  smaller  sum,  by  one  bound 
to  pay  a  larger  sum,  for  the  purpose  of  being  discharged,  is  a  good  consi- 
deration to  support  an  agreement  to  discharge  or  release ;  and  may  be  con- 
sidered, so  far  as  Pennsylvania  is  concerned,  as  overthrowing  the  old  common 
law  rule  above  mentioned.  If  the  decision  of  this  case  was  at  all  grounded 
on  the  fact,  that  the  payment  was  made  during  a  stay  of  execution,  and, 
therefore,  before  the  money  was  attainable  by  process  of  law,  though  it  was 
fully  due  and  bearing  interest,  that  reason  will  apply  to  every  case  :  for, 
whenever  a  debtor  pays  before  the  money  is  actually  made  by  the  sheriff, 
he  pays  voluntarily,  and  before  the  time  when  the  law  would  give  it  to  the 
creditor :  the  stay  of  execution  given  by  the  act  of  assembly,  being  merely 
a  provision  regulating  the  practice  and  process  of  courts  of  law,  akin  pre- 
cisely to  those  which  require  a  delay  of  a  certain  number  of  days,  before 
iudgment  by  default  can  be  had,  before  a  judgment  can  be  entered  on  a 


388  smith's   leading   cases. 

verdict,  before  execution  can,  in  any  case,  issue  on  a  juelgmcnt,  or  tlie  goods 
be  sold  on  execution.  This  reason,  Avhich  appears  to  be  hinted  at  by  the 
chief  justice  in  Millikin  another  v.  Brown,  though  it  be  a  meagre  tech- 
nicality, seems  sufficient,  when  it  is  backed  by  the  good  sense  and  justice 
of  the  case,  to  bring  all  the  cases  within  the  distinction  of  Pinncll's  case. 
^Vhen  such  arrangements  are  bona  fide,  and  are  clearly  proved,  there  is 
doubtless  much  equity  in  protecting  them:  they  amount  to  this;  the  credi- 
tor has  a  claim  upon  the  debtor, — this  claim  the  debtor  might  perhaps  defeat 
in  an  action, — certainly  could  delay, — may  postpone  to  the  payment  of  other 
creditors, — may  discharge  more  advantageously  to  himself  by  purchasing 
claims  of  others  upon  his  creditor, — all  which  he  has  a  perfect  right  to  do: 
if,  then,  the  creditor  induce  him  to  give  him  priority  over  his  other  creditors, 
and  to  pay  him  some  part  of  the  debt  sooner  than  the  law  would  let  him 
have  any  payment,  by  a  promise  that  it  shall  be  a  discharge  of  the  debt, 
which  sum  the  debtor  otherwise  would  not  pay,  and  the  creditor  could  not 
compel  him  to  pay ;  in  such  a  case,  it  would  be  a  fraud  upon  the  debtor  if 
this  were  not  a  discharge.  But  all  this  takes  for  granted,  that  clear,  delibe- 
rate, bona  fide  character  of  the  agreement  to  discharge,  which  the  rule  of 
the  common  law  is  chiefly  designed  to  secure.  A  pi'inciple  so  deeply  esta- 
blished in  the  very  forms  and  elements  of  the  law,  and  which  has  so  long 
sustained  itself  in  the  courts,  has  something  better  than  a  mere  barren 
technicality  to  rest  upon.  In  fiict,  as  a  technical  rule,  it  may  be  doubted 
whether  the  maxim  that  a  smaller  sum  cannot  be  a  satisfaction  of  a  larger 
debt,  could  apply  to  any  thing  but  a  bond,  which  the  old  law  regarded  as  an 
.actual  gift  or  transfer  of  the  money,  and  gave  the  action  of  debt  for  the 
-.detainer  of  what  was  in  law  the  very  property  of  the  obligee;  technically,  it 
■'Would  be  difficult  to  make  it  apply  to  simple  contracts.  But  as  a  principle 
of  evidence,  this  rule,  which  requires  for  the  substantiation  of  such  agree- 
■menxs,  either  a  surrender  of  the  instrument,  or  a  legal  release,  is  a  just,  wise, 
and  eenvenient  rule;  so  great  is  the  danger  of  fraud  and  mistake.  The 
rule  which  requires  a  deed  to  be  solemnly  sealed  and  delivered, — the  rule 
"which  requires  the  word  heirs  in  a  deed  to  create  a  fee, — these  are  now  com- 
monly regarded  as  mere  technicalities  :  but,  in  their  spring  and  essence,  what 
•are  they  bat  great  and  comprehensive  principles  of  evidence  and  policy  ? 
designed  to  promote  fairness,  and  to  ensure  certainty  and  repose  in  the  trans- 
actions of  men,  by  afi"ording  a  sure,  simple,  obvious  test  of  the  validity  and 
effect  of  contracts  ?  The  whole  of  this  law  in  relation  to  accord  and  satis- 
faction, furnishes  one  of  the  many  instances  in  which  we  can  see  that  the 
<'old  narrow  ordinances"  of  law,  are  designed  and  adapted  to  fix  and  guard 
some  vital  principle  of  equity  and  reason.  If  a  debt  has  been  paid,  there  is 
the  plea  of  jTaymeot :  if  satisfied  by  some  collateral  thing,  it  is  accord  and 
satisfaction'  but  if  you  claim  to  have  been  released  from  the  whole  bonder 
debt,  by  having  paid  a  part  of  it,  you  are  relying  upon  a  release;  and  to 
know  what  constitutes  a  valid  release,  you  are  referred  to  other  departments 
of  the  law,  and  to  general  and  established  rules  of  pleading,  which  cannot 
be  disturbed  without  shaking  the  most  inveterate  foundations  of  the  law. 

The  preceding  remarks  refer  to  the  question  of  the  legal  effect  of  a  partial 
payment,  alleged  to  have  been  received  in  full,  when  the  fact  of  the  pay- 
ment being  but  partial,  stands  admitted  before  the  court.  But,  upon  the 
question  whether,  in  point  of  fact,  the  whole  debt  is  or  is  not  paid,  it  appears 


I 


CUMBER    V.    WANE.  389 

that  the  acknowledgment  of  the  creditor  that  the  payment  is  in  full,  is  not 
only  competent  evidence,  but  is  prima  facie  evidence,  that  the  whole  is  paid. 
The  case  of  Henderson  v.  Moore,  5  Cranch,  11,  is  a  strong  case  to  this 
effect.  Upon  the  plea  of  payment,  to  debt  on  bond,  it  appeared  that,  the 
defendant  owing  the  plaintiff  on  other  accounts,  the  plaintiff,  many  years 
after  the  date  of  the  bond,  had  orally  acknowledged,  or  declared,  that  he 
had  received  a  certain  sum  from  a  debtor  of  the  defendant,  and  that  what  he 
so  received,  was  in  full  of  all  his  claims  against  the  defendant.  The  court 
below  declined  instructing  the  jury,  as  prayed  by  the  plaintiff,  that  if  they 
were  satisfied  that  the  bond  had  not  been  fully  paid  off,  no  declaration  of 
the  plaintiff's  '  that  his  claims  against  the  defendant  were  all  satisfied,'  would 
be  a  bar  to  this  recovery;  and  instructed  the  jury,  that  if  they  found,  that 
the  defendant  paid  the  plaintiff  a  sum  of  money  less  than  the  amount  men- 
tioned in  the  condition  of  the  bond,  which  the  plaintiff  then  acknowledged 
to  be  in  full  satisfaction  of  his  claims  against  the  defendant,  such  payment 
and  acknowledgment,  are  competent  evidence  upon  the  plea  of  payment,  and 
that  the  jury  may  and  ought  to  presume,  therefrom,  that  the  whole  sum  in 
the  condition  of  the  bond  has  been  paid  to  the  plaintiff,  unless  such  pre- 
sumption be  repelled  by  other  evidence  in  the  cause.  The  jury  found  for 
the  defendant;  and  the  Supreme  Court,  on  error,  said,  per  Marshall,  C. 
J.,  ''That  there  was  no  error  in  the  opinion  of  the  court  below.  A ^art  of 
the  vfioney  due  on  the  hond  might  have  been  paid  before  ;  and  such  an  acknow- 
ledgment, upon  receipt  of  a  sum  smaller  than  the  amount  of  the  condition 
of  the  bond,  was  good  evidence  upon  the  plea  of  payment." 

The  rule  that  payment  of  a  smaller  sum  cannot  be  a  satisfaction  of  a 
larger  debt,  is  applicable  only  to  cases  where  the  larger  debt  is  fixed  and 
liquidated,  or  is  ascertainable  by  merely  an  arithmetical  calculation ;  it  does 
not  apply  where  the  previous  claim  is  unliquidated  and  uncertain  ;  McDaniels 
V.  Lapham  et  al.,  21  Vermont,  223,  234:;  Lamb  v.  Goodwin,  10  Iredell, 
320,  323. 

That  a  mere  agreement,  unexecuted,  to  accept  a  smaller  sum  in  discharge 
of  a  larger,  is  not  valid,  seems  to  be  settled;  and  apparently  is  not  contra- 
dicted by  any  American  cases.  See  Spruneberger  v.  Dentler,  4  Watts,  126; 
Hising  V.  Patterson,  5  Wharton,  816;  Daniels  v.  Hatch,  et  al.,  1  Zabriskie, 
391,  393. 

These  appear  to  be  the  general  principles  applicable  to  the  plea  of  accord 
and  satisfaction;  it  may  be  proper  to  take  a  more  particular  notice  of  three 
cases  falling  within  them,  which  are  of  very  frequent  occurrence ;  one, 
where  the  note  of  a  third  person  is  given  by  the  debtor;  another,  where  the 
note  of  one  joint  debtor  or  partner  is  given  for  the  joint  or  partnership  debt; 
the  third,  where  the  debtor's  own  negotiable  note  is  given. 

1.  The  note  or  bill  of  a  third  person  may  be  given  by  a  debtor  and  received 
by  the  creditor,  as  collateral  security^  as  conditional  payment,  that  is,  to  be 
a  satisfaction  if  and  when  paid,  or,  as  an  absolute  and  immediate  satlf ac- 
tion and  discharge,  and  to  be  wholly  at  the  risk  of  the  creditor;  and  which 
of  these  three  it  will  be,  depends  entirely  upon  the  intention  of  the  parties, 
to  be  derived  from  all  the  circumstances  of  the  case, — the  mere  acceptance 
by  the  creditor,  of  the  negotiable  note  of  a  third  person,  makes  it  but  collat- 
eral secvritij  ;  and  the  general  settled  principle  that  the  acceptance  of  col- 
lateral security  has  no  effect  whatever  on  the  legal  rights   and  liabilities  of 


390  smith's    leading    cases. 

the  parties  on  the  original  debt,  either  to  impair  or  suspend  the  right  of 
action,  Kemmil  v.  Wilson,  4  "Washington  C.  C.  308;  Ripley  v.  Greenleaf, 
2  Vermont,  129 ;  Bank  of  Pennsylvania  v.  Potius,  10  Watts,  148,  applies 
equally  where  the  collateral  security  is  a  negotiable  note ;  Weakly  v.  Bell 
and  Sterling,  9  Watts,  273,  and  see  Berghaus  v.  Alter,  id.  380  ;  the  creditor, 
however,  may  sue  upon  the  collateral  security  whenever  the  debt  becomes 
due,  for  a  creditor  may  press  all  his  securities  at  once.  Lishy  v.  O'Brien, 
4  Watts,  141. — If  the  negotiable  note  be  taken  as  payment,  this  is,  ordina- 
rily and  prima  facie,  but  conditional  j)Ciijment;  still  more  clearly  is  it  con- 
dition:il  payment  where  it  is  expressed  that  it  is  to  be  in  full  if  or  when  paid, 
as  in  Plerring  v.  Sanger,  3  Johnson's  Cases,  71,  Tyson  and  others  v.  Pol- 
lock, 1  Penrose  &  Watts,  375,  and  Chapman  v.  Steinmitz,  1  Dallas,  261. 
See  Jamee  v.  Williams,  13  M.  &  W.  828;  Griffiths  v.  Owen,  id.  58;  Mail- 
lard  V.  The  Duke  of  Argyle,  6  M.  &  Gr.  40.  By  this  arrangement  of  con- 
ditional payment,  the  creditor  agrees  to  look  to  the  new  instrument,  prima- 
rily, as  the  fund  from  which  satisfaction  is  to  come,  and  to  postpone  the 
debtor's  personal  liability  till  then ;  and  therefore  the  legal  effect  on  the 
original  debt  is,  an  extension  or  suspension  of  the  debtor's  liability  till  the 
collateral  note  falls  due ;  Okie  v.  Spenser,  2  Wharton,  253  ;  Proctor  v. 
Mather,  &c.  3  B.  Monroe,  353,  354;  and  there  is  no  other  effect  on  it.  A 
creditor  accepting  a  negotiable  note,  either  as  collateral  security  or  as  a  con- 
ditional payment,  is  bound  to  use  due  diligence  in  demanding  payment  and 
giving  notice  of  non-payment,  under  penalty  of  being  answerable  for  any 
loss  incurred  by  his  neglect;  but  he  is  not  bound  to  sue  upon  it.  Galla- 
gher's Executors  v.  Roberts  et  al.,  2  Washington  C.  C.  191 ;  Clark  v. 
Young  &  Co.,  1  Cranch,  181;  Snyder  v.  Findley,  1  Coxe,  48;  Ormsby  and 
another  v.  Fortune,  16  Sergeant  &  Rawle,  302 ;  M'Leighlan  v.  Bovard,  4 
Watts,  308;  Herring  v.  Sanger;  Brower  v.  Johnes,  3  Johnson,  230; 
Woodcock  V.  Bennet,  1  Cowen,  713  :  as  to  the  diligence  demanded  in  such 
cases,  see  Taylor  &  Byers  v.  Daniel,  9  B.  Monroe,  53,  55  :  in  Dayton  v. 
Trull,  23  Wend.  345,  it  was  held,  that  if  a  bill  be  received,  to  be  in  satis- 
faction when  paid,  it  will  be  presumed  that  the  bill  was  paid,  and  the  onus 
is  on  the  plaintiff  of  proving  due  diligence,  or  such  facts  as  will  excuse 
demand  and  notice. — The  note  of  a  third  person  will  operate  as  an  absolute 
and  immediate  satii^fartion  and  discharge  of  the  debt,  if  such  be  the  inten- 
tion and  understanding  of  the  parties ;  and  the  distinction  on  this  point,  as 
to  the  first  presumption  of  intention,  is,  that  where  the  notes  of  a  third  per- 
son are  accepted  in  payment  at  the  time  the  purchase  is  made,  this  is  to  be 
understood  as  an  exchange  or  barter  of  the  thing  purchased,  for  the  notes, 
and  the  notes  are  at  the  risk  of  the  purchaser;  Whitbeck  v.  Van  Ness,  11 
Johnson,  409 ;  unless  the  note  were  forged,  Markle  v.  Hatfield,  2  id.  455, 
and  be  returned  within  a  reasonable  time;  Raymond  v.  Baar,  13  id.  318;  or 
unless  there  were  a  fraudulent  concealment  of  the  fact  of  the  maker's  insol- 
vency, Willson  V.  Force,  0  id.  110 ;  or  a  false  assertion  of  the  note-maker's 
solvency,  which  probably  was  considered  a  guaranty,  Snyder  v.  Findley,  1 
Coxe,  48 :  yet  if  the  fact  of  such  understanding  or  intention  be  negatived  by 
the  finding  of  the  jury,  it  is  no  discharge;  see  Porters  v.  Falcott  &  Bowers, 
1  Cowen,  359  :  but  where  the  notes  or  bills  of  a  third  person  are  given  for 
a  pre-existing  debt,  there  the  presumption  is  the  other  way,  and  although  it 
will  still  be  an  absolute  discharge  where  such  an  intention   and  agreement 


CUMBER    V.     WANE.  391 

can  clearly  be  inferred  from  the  evidence,  or  is  necessary  to  the  fairness  of 
the  case;  James  and  Flack  v.  Hackley  and  others,  16  Johnson,  273 ;  Brown 
V.  Jackson,  2  Washington  C.  C  24 ;  yet  nothing  short  of  an  actual  agree- 
ment, or  some  evidence  from  which  a  positive  inference  is  to  be  made  of  an 
intention  entirely  to  discharge  the  debtor  and  to  take  the  security  of  the 
third  person  in  lieu  and  substitution  of  the  debtor's,  or  fraud,  will  suffice ; 
merely  receipting  the  notes  as  cash,  or  giving  a  receipt  in  full,  or  receipting 
the  notes  as  being  in  payment  of  the  debt,  will  not,  alone,  be  sufficient  to 
prove  that  the  notes  were  taken,  not  as  conditional  payment,  but  as  an  imme- 
diate and  absolute  discharge ;  Tobey  v.  Barker,  5  Johnson,  68  j  Johnson  v. 
Weed  and  another,  9  id.  310  ;  Isaac  Roget  v.  Merritt  and  Clapp,  2  Caines, 
117;  Van  Epps  v.  Dilleye,  6  Barbour's  S.  Ct.  245,  252  ;  Hays  v.  Stone,  7 
Hill,  128,  130;  Maze  v.  Miller,  1  Washington  C  C  328;  Harris  and  Don- 
aldson V.  Lindsay,  4  id.  271 ;  Peter  v.  Beverly,  10  Peters,  534,  567 ;  Glenn 
V.  Smith,  2  Gill  &  Johnson,  494 ;  Gordon  v.  Price,  10  Iredell,  385,  388 ; 
Perit  and  another  v.  Pitfield  and  others,  5  Rawle,  166;  M'Ginn  v.  Holmes, 
2  Watts,  121;  M'Lughlin  v.  Bovard,  4  id.  308,  312;  Moore  v.  Briggs,  15 
Alabama,  24,  27 ;  Fulford  v.  Johnson,  Hendon  &  Co.,  Id.  386,  393.  But 
the  later  New  York  cases  are  less  strict  in  requiring  positive  evidence  of  an 
intention  that  the  note  shall  be  at  the  risk  of  the  creditor :  in  The  New 
York  State  Bank  v.  Fletcher,  5  Wendell,  85,  it  was  held  that  the  promis- 
sory note  of  a  third  person  taken  by  express  agreement  in  payment  of  a 
judgment  is  an  extinguishment  of  a  preceding  debt ;  and  in  Frisbie  and 
M'Kinley  v.  Larned  and  Corning,  21  Wendell,  451,  it  was  held  that  the 
note  of  a  third  person,  received  as  payment  and  credited  on  the  creditor's 
books,  is  prima  facie  an  accord  and  satisfaction,  and  discharges  the  debt, 
unless  an  intention  to  receive  it  only  as  collateral  be  shown,  at  all  events  is 
competent  evidence  for  the  jury;  and  Cowen,  J.,  was  inclined  to  think 
that  generally,  in  the  absence  of  proof  that  it  was  collateral,  it  would  be  a 
satisfaction. 

2.  The  case  of  the  acceptance  of  a  note  of  one  partner  for  a  liability  of 
the  firm,  appears  to  be  considered  the  same  as  the  acceptance  of  the  note  of 
a  third  person.  A  distinct  agreement,  by  a  creditor,  upon  a  dissolution  of 
a  partnership,  to  accept  the  notes  of  the  member  or  members  continuing  in 
business,  in  discharge  of  the  retiring  members,  is  a  valid  discharge  of  them; 
and  may  be  pleaded  in  bar  of  an  action  brought  against  them.  Sheehy  v. 
Mandeville  &  Jamesson,  6  Cranch,  253,  establishes  the  validity  of  such  an 
arrangement,  when  set  forth  by  special  plea.  In  that  case  the  plaintiff  had 
sold  goods  to  Jamesson,  and  taken  his  negotiable  promissory  note  for  the 
amount ;  afterwards  supposing  Mandeville  to  be  a  secret  partner,  he  insti- 
tuted this  suit  against  both :  Mandeville  appeared,  and  pleaded  that  the 
note  which  Jamesson  had  given  for  the  same  goods,  was  given  and  received 
for  and  in  discharge  of  the  account  or  bill  for  goods ;  and  upon  demurrer, 
tlic  pica  was  adjudged  to  be  a  good  bar.  '<  That  a  note,"  said  Chief  Jus- 
tice Marshall,  delivering  the  opinion  of  the  court,  '^  without  a  special 
contract,  would  not  of  itself  discharge  the  original  cause  of  action,  is  not 
denied.  But  it  is  insisted  that  if,  by  express  agreement,  the  note  is  received 
as  payment,  it  satisfies  the  original  contract,  and  the  party  receiving  it  must 
take  his  remedy  on  it.  This  principle  appears  to  be  well  settled.  The  note 
of  one  of  the  parties,  or  of  a  third  person,  may,  by  agreement,  be  received 


392  smith's  leading  cases. 

iu  payment.  The  doctrine  of  nudum  pactum  does  not  apply  to  sucli  a 
case;  for  a  man  may,  if  such  be  bis  uill,  discbarge  bis  debtor  witbout  any 
consideration.  But  if  it  did  apply,  tbere  may  be  inducements  to  take  a 
note  from  one  partner  liquidating  and  evidencing  a  claim  on  a  firm,  which 
might  be  a  sufficient  consideration  for  discharging  the  firm  :"  and  the  cor- 
rectness of  this  mode  of  pleading  cannot  be  questioned  since  Sard  v.  Rhodes, 

1  M.  &  ^y.  153,  and  Sibree  v.  Trip,  15  Id.  23.  The  intention  to  sitbstitute 
the  individual  for  the  firm  must  be  proved,  and  some  of  the  cases  are  pretty 
strong  iu  calling  for  an  express  agreement ;  Estate  of  Davis  v.  Desauque,  5 
"Wharton,  531 ;  Muldon  v.  Whitlock,  1  Cowen,  290  :  see  Parker  v.  Cousins, 

2  Grattan,  373,  388;  but,  upon  sufficient  evidence,  the  fact  of  the  intention 
is  for  the  jury.  Mason  v.  Wickersham,  4  Watts  &  Sergeant,  100.  The 
casi  s  most  usually  occurring,  where  the  acceptance  of  the  note  of  one 
partner  has  been  held  a  discharge  of  the  others,  are,  ■where  the  creditor's 
entering  into  the  arrangement,  has  caused  the  funds  of  the  partnership 
to  be  entrusted  to  the  one  giving  the  separate  note,  and  the  business  to  take 
such  a  course,  that  the  recurring  to  the  other  partners  would  be  a  fraud 
upon  them :  such  is  the  case  of  Arnold  v.  Camp,  12  Johnson,  409,  (and 
see  James  v.  Hackley,  16  Id.  273,)  and  the  case  of  Harris  &  Donaldson 
v.  Lindsa}-,  4  Wash.  C.  C  271,  where  the  subject  of  accepting  the  respon- 
sibility of  one  partner,  is  discussed  very  ably  by  Judge  Washington  : 
The  hinge  of  the  decision  there  was,  that  the  funds  of  the  partnership 
had  been  given  to  one  partner,  and  the  creditor  had  entered  into  such 
arrangement  with  that  partner,  and  so  amalgamated  that  debt  with  others, 
that  the  retiring  partner  "  could  never  plead  payment  of  the  balance  due 
by  the  partnership,  even  although  a  larger  sum  than  that  due  by  them 
should  have  been  paid  by  the  partner  whose  separate  security  had  been 
accepted,  out  of  the  very  funds  retained  by  him  for  that  purpose,"  {p.  100.) 
See  Parker  v.  Cousins,  2  Grattan.  373 ;  and  see  the  subject  reviewed  in 
Wildes  and  others  v,  Fessenden  and  others,  4  Metcalf,  12.  So  where  an 
agent's  note  has  been  given  for  several  principals,  it  will  require  distinct 
evidence  of  an  intention  to  discharge  the  principals,  and  take  the  agent's  note 
iu  lieu,  to  have  that  effect.  Schemerhoru  and  others  v.  Loines  and  others, 
7  Johnson,  311;  Insurance  Company  of  Pennsylvania  v.  Smith,  3  Wharton, 
521;  Porters  v.  Talcott  &  Bowers,  1  Cowen,  359.  And  it  is  reasonable, 
that  when  the  transaction,  as  alleged  by  the  debtor  implies  the  creditor's 
having  given  up  some  right  of  action,  or  abandoned  a  claim  on  auy  indi- 
vidual, without  any  apparent  advantage  to  himself,  clear  and  full  proof  should 
be  made,  or  it  should  appear  that  his  assertion  of  the  previous  liability  would 
partake  of  the  character  of  fraud. 

In  New  York,  it  was  at  one  time  held  by  the  Supreme  Court,  that  the 
acceptance  of  the  note  of  one  partner,  will  not  and  cannot,  extinguish 
the  liability  of  the  others,  although  the  creditor  expressly  accept  the 
note  in  satisfaction  ;  Cole  v.  Sackctt,  1  Hill's  N.  Y.  516 ;  Waydell  v.  Luer, 
5  Id.  448.  In  the  latter  of  these  cases,  a  firm  composed  of  Cort,  Under- 
bill, and  the  defendant,  borrowed  in  January,  1837,  a  sum  of  money  from 
the  plaintiff,  Luer;  in  1838,  the  firm  was  dissolved,  and  Luer  knowing  of 
the  dissolution,  took  the  individual  notes  of  Cort,  for  a  part  of  the  amount 
due;  Cort  also  paying  a  sum  of  money  and  giving,  as  one  witness  believed, 
the  note  of  a  third  person;  the  whole  amounting  to   the  sum  due  by  the 


CUMBER    V.    WANE.  393 

firm.  '<Tlie  notes  and  cash,"  said  Cowen,  J.,  wlio  stated  tlie  case 
and  delivered  the  opinion  in  tbe  Supreme  Court,  "  were  given  in  settle- 
ment of  the  money  borrowed;  and  Luer  gave  up  to  Cort  the  note  of 
the  firm,  which  he  held  for  that  sum.  Cort's  notes  were  renewed  from 
time  to  time,  for  two  years.  They  were  credited  by  Cort's  former  partners, 
in  his  general  account,  as  so  much  assumed  by  him."  The  notes  given 
by  Cort  remaining  unpaid,  Luer  sued  the  firm  on  the  original  loan;  and 
it  was  decided  by  the  Supreme  Court,  that  he  was  entitled  to  recover ! 
No  question  was  made  of  the  intention  to  discharge  the  other  partners;  and  the 
case  was  put  by  Cowen,  J.,  upon  what  he  declared  to  be  a  settled  principle 
of  law,  that  a  promise  cannot,  under  any  circumstances,  be  a  satisfaction  of 
a  debt  antecedently  due  by  the  debtor  himself,  and  a  fortiori  cannot  dis- 
charge a  debt  due  jointly  by  himself  and  others.  But  surely  the  retiring 
partners'  giving  up  to  the  continuing  partner  all  control  of  the  assets  of  the 
firm  upon  the  faith  of  an  agreement  by  the  creditor  to  accept  his  sole  liability 
in  substitution  of  theirs,  and  the  partners'  being  induced  by  the  creditor's 
agreement,  to  settle  among  themselves  upon  the  basis  of  such  a  substitution, 
constitute  an  abundant  consideration  for  the  creditor's  agreement.  To  say 
that  such  an  arrangement  between  the  creditor  and  the  debtors  is  void,  and 
that  the  law  will  not  allow  it  to  be  valid,  is  unreasonable  :  and  after  such  an 
arrangement  has  been  made,  and  a  creditor  has  become  a  party  to  such  a 
settlement,  has  given  up  the  notes  of  the  firm,  and,  accepting  the  notes  of 
one  of  the  members,  has  renewed  them  from  time  to  time  for  two  years,  as 
in  Waydell  v.  Luer,  to  allow  him  to  pursue  the  retired  partners  on  the 
Original  consideration,  is  wholly  opposed  to  justice  and  convenience.  The 
case  of  Waydell  v.  Luer  was  afterwards  reversed  in  the  Court  of  Errors,  3 
Denio,  410  :  and  the  recent  cases  of  Livingston  v.  Radclifi",  6  Barbour's  S. 
Ct.  202,  and  Van  Eps  v.  Dillaye,  id.  245,  252,  appear  to  bring  the  law  of 
New  York  into  accordance  with  Harris  &  Donaldson  v.  Lindsey.  See,  also, 
Kinsler  et  al.  v.  Pope,  5  Strobhart,  126. 

3.  The  efi'ect  of  a  debtor's  giving  his  own  negotiable  promissory  note  to 
the  creditor  for  the  full  amount  of  the  original  debt,  is  perhaps  less  clearly 
settled.  There  are  two  class  of  cases,  which  it  is  necessary  to  distinguish : 
one,  where  the  note  is  alleged  to  have  been  given  and  accepted  in  satisfac- 
tion and  discharge  of  the  original  cause  of  action;  the  other,  where  a  new 
note  is  given  in  substitution  of  a  former  note.  The  latter  arrangement  is 
undoubtedly  valid,  being  a  mere  exchange  of  securities,  and  it  depends 
entirely  on  the  intention  of  the  parties.  As  to  the  validity  of  the  former 
arrangement  in  England,  there  can  be  no  doubt;  Sard  v.  Rhodes,  1  M.  & 
W.  153;  Sibree  v.  Tripp,  15  id.  23;  but  in  this  country  the  cases  differ. 

In  New  York,  it  may  be  taken  as  conclusively  settled,  that  a  promissory 
note,  or  bill,  of  the  debtor,  though  accepted  by  the  creditor  in  full  satisfac- 
tion, is  not,  and  cannot  in  law  be,  a  discharge  of  the  debt,  so  as  to  bar  the 
original  cause  of  action :  the  acceptance  of  the  note  will  postpone  the  right 
of  action  till  it  falls  due;  Putnam  v.  Lewis,  8  Johnson,  389;  Frisbie  v. 
Larned,  21  Wendell,  450,  452;  Myers  v.  Welles,  5  Hill,  463;  (and  see 
Baker  v.  Walker,  14  M.  &  W.  465 ;  MaiUard  v.  The  Duke  of  Argyle,  6 
M.  &  G-r.  40);  but,  if  it  be  not  paid,  the  creditor  may  put  it  aside,  and  sue 
on  the  original  cause  of  action.  In  Hawley  v.  Foote,  19  Wendell,  516,  a 
plea  that  an  order  drawn  by  defendant  on  a  third  person,  was,  by  agree- 


394'  smith's  leading  oases. 

ment,  given  and  rec2ivcd  by  plaintiff  in  full  satisfaction,  was,  upon  demurrer, 
adjudged,  per  Bronson,  J.,  to  be  bad  in  substance.  In  Frisbie  &  M'Kinney 
V.  Larncd  &  Corning,  21  id.  450,  the  dicta  of  Cowen,  J.,  are  to  the  same 
effect.  In  Cole  v.  C  &  E.  Sackett,  1  Hill's  N.  Y.  517,  a  plea  in  assumpsit, 
that  on  accounting  together,  a  certain  balance  was  found  due,  "of  which 
defendants  paid  a  part,  and  gave  their  promissory  note  to  the  plaintiff  for 
the  residue,  which  the  latter  accepted  in  full  satisfaction  and  discharge,"  on 
demurrer  was  adjudged  bad,  per  Cowen,  J.,  and  that  a  promise  to  receive 
a  promise  in  satisfaction  is  nudum  pactum.  The  amount  of  the  New  York 
cases  is,  that  acceptance  of  a  note  of  the  debtor,  in  payment  and  satisfaction, 
is,  in  law,  but  conditional  payment;  and,  if  not  paid,  may  be  thrown  out 
of  view.  But  the  case  of  Myers  v.  Welles,  5  Hill,  463,  involves  the  New 
York  Courts  in  a  manifest  contradiction,  and  exposes  the  unsoundness  of 
their  position,  as  to  the  debtor's  negotiable  note  not  being  a  discharge,  even 
by  agreement.  It  was  there  decided,  that  accepting  a  principal  debtor's 
negotiable  note,  payable  at  a  future  time,  was  such  a  giving  of  time  upon 
the  demand,  as  discharged  a  surety.  "  Being  negotiable,"  says  Cowen,  J., 
"  they  might  be  used  more  beneficially  than  the  account.  Besides,  they 
operate  to  liquidate  the  plaintiff's  claim.  These  advantages  constituted  a 
sufficient  consideration  for  the  suspension."  This  ease  establishes  the  point 
that  these  advantages  are  a  legal  consideration  :  and  if  they  are  sufficient 
to  sustain  an  agreement  to  give  time;  they  are  certainly  sufficient  to  sus- 
tain any  other  lawful  agreement  which  the  parties  choose  to  make  upon 
them. 

On  the  other  hand,  in  the  other  states  of  the  Union,  though  the  validity 
of  such  an  arrangement,  as  would  make  the  note  of  the  debtor  a  bar  to  the 
original  cause  of  action,  has  perhaps  not  been  directly  adjudged,  it  seems  to 
have  been  generally  taken  for  granted.  No  distinction  as  to  the  validity  of 
the  transaction  is  recognised  between  a  note  of  the  debtor  for  a  preceding 
cause  of  action,  and  a  note  in  substitution  of  a  former  note,  or  a  note  of  a 
third  person  :  but  in  all  these  cases,  everything  depends  on  intention.  It 
is  certain  that  without  an  express  agreement,  the  receipt  of  a  negotiable 
note  of  the  debtor,  is  not  a  payment  of  a  prior  debt;  Jaffrey  v.  Cornish,  10 
New  Hampshire,  505 ;  but  by  express  agreement  it  may  be  a  satisfaction 
and  bar;  Dougal  v.  Cowles  &  Smith,  5  Day,  511;  dicta  of  Marshall,  C. 
J.,  in  Sheehy  v.  Mandeville  &  Jamesson.  In  Pennsylvania,  indeed,  the 
understanding  to  this  effect  is  so  general,  that  it  must  probably  be  considered 
as  settled ;  Darlington  v.  Gray,  5  Wharton,  487  ;  Weakley  v.  Bell  &  Ster- 
ling, 9  Watts,  273 ;  Hays  v.  Clurg,  4  id.  452.  In  Massachusetts  and 
Maine,  as  presently  stated,  the  law  is  certainly  so. 

The  New  York  decisions  are  to  be  understood  as  applicable  to  the  case, 
where  the  creditor  retains  the  note,  and  can  produce  it  on  trial.  For  it  is 
well  and  generally  settled,  that  if  a  negotiable  note  by  the  debtor  have  been 
given  on  account  of  the  debt,  and  the  creditor  part  with  it  for  a  valuable 
consideration,  he  cannot  sue  on  the  original  cause  of  action,  until  he  has 
taken  up  the  note,  and  if  he  have  not  parted  with  it  for  a  valuable  conside- 
ration he  cannot  recover,  unless,  on  the  trial,  he  produce  and  cancel  the 
note  :  hence,  the  creditor  will  be  defeated,  if  the  debtor  plead  or  prove,  that 
he  had  given  a  negotiable  note,  which  the  plaintiff,  by  having  assigned  it 
for  a  valuable  consideration,  and  not  under  his  control  at  the  commencement 


CUMBER     V.    "WANE. 


395 


oftlie  suit;  or,  if  it  be  under  the  plaintiff's  control,  and  he  do  not  produce 
and  cancel  it  at  the  trial,  or  prove  that  it  has  been  destroyed  or  lost ;  Small 
V.  Jones,  8  Watts,  265;  Hughes  v.  "Wheeler,  8  Cowen,  77,  where  the  New 
York  cases  are  collected;  Dayton  v.  Trull,  23  Wendell,  345;  Hays  v. 
M'Clung,  4  Watts,  452  ;  Harris  v.  Johnston,  3  Cranch,  311 ;  McConnell 
et  al.  V.  Stettiuius  et  al.,  2  Oilman,  707,  713;  Cocke  v.  Chaney,  adm'r,  14 
Alabama,  65.  In  Massachusetts  and  Maine,  this  reason  is  carried  so  far, 
that  the  debtor's  giving  his  negotiable  note  for  a  parol  debt,  is  taken  to  be 
a  payment  or  discharge,  "  unless  it  be  proved  not  to  have  been  the  intention 
of  the  parties  to  give  it  that  effect;"  Johnson  v.  Johnson,  11  Massachusetts, 
359 ;  Thatcher  and  others  v.  Dinsmore,  5  id.  299 ;  Varner  v.  The  Inhabit- 
ants of  Nobleborough,  2  Greenleaf,  121;  Butts  v.  Dean,  2  Metcalf,  76.  But 
this  is  admitted  to  be  a  peculiarity  in  the  law  of  those  states ;  Wallace  v. 
Agry  et  al,  5  Mason,  327  ;  Descadilla  et  al.  v.  Harris,  8  Greenleaf,  298 ; 
and  it  only  applies  to  negotiable  notes ;  Greenwood  v.  Curtis,  4  Massachu- 
setts, 93.  And  accordingly  to  the  late  cases  the  presumption  is  merely  one 
of  fact,  founded  on  the  consideration  that  as  it  is  as  convenient,  and  gene- 
rally  more  so,  to  the  creditor  to  sue  on  the  note,  there  is  no  reason  to  con- 
sider the  original  contract  as  continuing  in  force ;  and  this  presumption  of 
fact  may  be  rebutted  by  evidence  that  the  note  was  not  intended  as  a  pay- 
ment, and  the  fact  that  such  extinguishment  would  deprive  the  party  taking 
the  note  of  a  substantial  benefit,  would  generally  be  sufficient  to  rebut  the 
presumption ;  Curtis  and  another  v.  Hubbard,  9  Metcalf,  322,  328. 

Where  a  promissory  note  has  been  given,  and  upon  its  falling  due,  a  new 
note  is  given  by  the  debtor,  there  is  no  doubt  this  may  be  a  satisfaction  and 
discharge  of  the  former.  There  is  no  legal  difficulty  in  the  way ;  for  the 
cause  of  action  is  not  touched ;  the  transaction  is  only  an  exchange  of  secu- 
rities ;  it  is  therefore  a  mere  affair  of  evidence  and  intention.  In  Hart  v. 
Boiler,  15  Sergeant  &  Rawle,  162,  the  first  count  in  the  declaration  was  on 
a  promissory  note  of  one  Miller,  payable  to  defendant's  order  and  indorsed 
by  defendant,  dated  Oct.  11,  1818,  for  ^240,  at  sixty  days,  and  falling  due 
13  Dec. ;  the  second  count  was  on  a  note  for  the  same  sum,  drawn  and  en- 
dorsed by  the  same  parties,  dated  14  Dec.  1819  :  the  court  below  told  the 
jury  that  it  was  a  matter  of  law,  that  the  second  note  was  not  a  satisfaction 
and  discharge  of  the  first,  and  that  therefore  the  plaintiff  was  entitled  to  a 
verdict  on  the  fir&t  count:  the  judgment  was  reversed  on  this  account :  and 
TiLGilMAN,  C.  J.,  delivering  the  opinion  of  the  court,  said,  "  It  is  a  general 
rule  that  if  one  indebted  to  another  by  note,  gives  another  note  to  the  same 
person  for  the  same  sum,  without  any  new  consideration,  the  second  note 
shall  not  be  deemed  a  satisfaction  of  the  first,  unless  so  intended  and  accepted 
by  the  creditor.  But  if  so  accepted  it  is  a  satisfaction.  The  quo  animo  it 
was  accepted  is  matter  oi/act,  which  the  court  cannot  take  to  itself,  and  ex- 
clude the  jury  from  the  decision  of  it.  The  intent  may  often  be  deduced 
from  circumstances,  though  nothing  positive  was  expressed.  We  are  of 
opinion,  therefore,  that  the  court  below  erred  in  assuming  the  determination 
of  this  point  as  matter  of  law.  It  should  have  been  submitted  to  the  jur?/, 
whether  the  second  was  accepted  in  satisfaction."  S.  P.  Jones  v.  Shawhan, 
4  Watts  &  Sergeant,  257,  263;  ace.  Musgrove  v.  Gibbs,  1  Dallas,  216; 
Hacker  and  others  v.  Perkins,  5  Wharton,  95  ;  Porters  v.  Talcot  &  Bowen, 
1  Cowen,  359.     Where  the  transaction  is  the  renewal  of  notes  in  whole  or 


396  smith's   leading   cases. 

in  part,  at  bank,  the  general  course  of  business  and  understanding  of  mer- 
chants rather  implies,  that  the  new  note  is  a  satisfaction  of  the  old;  that  the 
transaction  is  a  now  discount  and  a  repayment  of  the  former  note,  Slaymaker 
V.  Gundacker's  Ex'rs,  10  Sergeant  &  Rawle,  75;  Bank  U.  S.  v.  Daniel,  12 
Peters,  34  :  "  these  transactions,  of  renewing  debts  by  new  notes,  are  equi- 
valent to  paying  the  existing  debt,  and  again  borrowing  the  money ;"  Castle- 
man,  &c.  V.  Holmes,  4  J.  J.  Marshall,  1.  Still,  even  here,  the  decision  of 
the  court  is  regulated  exclusively  by  the  intention  of  the  parties  and  the 
justice  of  the  case.  And  where  the  former  note  is  paid  and  discharged  by 
the  new  discount,  it  is  not  to  be  pleaded  as  accord  and  satisfaction,  but  as 
'payment ;  Bank  of  Commonwealth  v.  Letcher,  3  J.  J.  Marshall,  195 ;  1 
Dana,  82. 

The  receipt  of  one  bond  expressly  agreed  to  be  in  discharge  of  a  former 
one,  is  a  good  discharge  :  dicta  in  Morrison  v.  Berkey,  7  Sergeant  &  Rawle, 
238,  and  Weakly  v.  Bell  &  Sterling ;  but  without  evidence  of  such  agree- 
ment or  intention,  it  will  not  be  a  discharge ;  Hamilton,  Ex'or  v.  Callen- 
der's  Ex'ors,  1  Dallas,  420 ;  Gregory  v.  Thomas,  20  Wendell,  17. 

A  doctrine  somewhat  akin  to  this  of  satisfaction  or  exchange  of  one  secu- 
rity by  or  for  another, — viz.  that  of  extinguishment  of  one  security  by  a 
higher  one,  by  operation  of  law, — may  be  taken  notice  of.  See  Jones  v. 
Johnson,  3  Watts  &  Sergeant,  276,  where  the  two  principles  are  very  ably 
distinguished  by  Gibson,  C.  J. 

The  acceptance  of  a  higher  security  or  obligation  from  the  debtor,  for  the 
payment  of  the  same  debt,  is  an  extinguishment  of  a  lower  security  or  obli- 
gation for  that  debt;  that  is,  a  judgment  on  a  bond  or  other  contract,  extin- 
guishes that  bond  or  contract :  Green  v.  Sarmiento,  1  Peters's  C  C  74 ; 
Butler  v.  Miller,  1  Denio,  407  ;  and  a  bond  or  other  sealed  instrument 
given  as  an  obligation  for  a  debt,  extinguishes  a  simple  contract  liability  or 
security  for  that  debt;  Curson  v.  Monteiro,  2  Johnson,  308;  Pleasants  v. 
Meng  et  al.,  1  Dallas,  380,  388  :  because  there  cannot  be  liabilities  on  both 
instruments,  and  a  judgment  and  a  bond  both  import  an  absolute  liability ; 
the  legal  obligation  of  the  inferior  instrument  must  be  considered  as  at  once 
blotted  out.  A  joint  judgment  against  all  the  obligors  in  a  joint  and  seve- 
ral bond  merges  the  entire  instrument ;  The  United  States  v.  Price,  9  How- 
ard, 83,  94;  but  a  judgment  against  one  of  them  in  a  several  suit  against 
him,  will  not  affect  the  liability  of  the  others;  Sawyer  v.  White  et  ux.,  19 
Vermont,  40.  In  like  manner,  a  judgment  against  one  joint  debtor  on  a 
joint  cause  of  action,  merges  the  liability  of  all ;  Willings  and  Francis  et  al. 
V.  Consequa,  1  Peters's  C.  C.  393 ;  Ward  v.  Johnsons,  31  Massachusetts, 
140 ;  Robertson  v.  Smith  and  others,  18  Johnson,  459  ;  Peters  v.  Sanford, 
1  Denio,  224 ;  Penny  v.  Martin  and  others,  4  Johnson's  Chancery,  566 ; 
Averill  v.  Locks,  6  Barbour's  S.  Ct.  20,  25 ;  Sloo  v.  Lea,  18  Ohio,  279  ; 
Ferrall  et  al.  v.  Bradfords,  2  Florida,  508;  Smith  and  another  v.  Black,  9 
Sergeant  &  Rawle,  142  ;  Lewis  v.  Williams,  6  Wharton,  264 ;  Anderson 
V.  Levan,  1  Watts  &  Sergeant,  334 ;  King  v.  Hoare,  13  M.  &  W.  494. 
(The  case  of  Sheehy  v.  Mandcville  and  Jamesson,  6  Cranch,  253,  has  some- 
times been  considered  as  contra,  and  erroneous;  but  that  is  a  mistake,  occa- 
sioned by  not  properly  understanding  the  point  of  that  case,  which  turned 
almost  entirely  upon  the  effect  of  an  insolvent  discharge  of  one  of  the 
defendants ;  the  view  of  Chief  Justice  Marshall  in  that  case  appears  to 


CUMBER    V.     WANE.  397 

have  been ;  that  a  judgment  against  one  on  Lis  sole  contract,  does  not 
strictly  extinguish  or  merge  the  liability  of  his  dormant  partners,  in  the 
same  way  that  it  extinguishes  or  merges  the  liability  appearing  on  the  face 
of  the  declaration;  it  would  be  a  bar  in  their  favour,  indeed,  but  only 
because  of  the  legal  impossibility  of  enforcing  the  liability  against  them, 
without  reviving  it  against  him  ;  but  that  where  the  one  against  whom  the 
former  judgment  was,  has  been  discharged  under  the  insolvent  law,  and 
appearing  in  the  second  action,  is  discharged  by  the  judge,  and  the  proceed- 
ings continue  against  the  newly  discovered  partner  only,  who  pleads  seve- 
rally, hero  there  is  no  reason  why  judgment  should  not  be  entered  against 
him,  for  it  does  not  affect  the  other;  and  that  in  fact,  in  that  case,  the  judg- 
ment was  entered  against  the  new  defendant  only,  Mandeville,  is  shown  by 
the  circumstance,  that,  when  that  judgment  came  up  again  in  7  Cranch, 
208,  it  came  up  by  the  name  of  Sheehy  v.  Mandeville.  The  main  peculi- 
arities of  this  case,  it  will  be  seen,  are,  that  the  declaration  in  the  first  suit 
set  out  a  sole,  and  not  a  joint  liability,  and  that  in  the  second  suit  the 
former  defendant  availed  himself  of  his  insolvent  discharge,  and  either  a 
nolle  prosequi  was  entered  against  them,  or  the  proceedings  were  considered 
equivalent  to  that :  had  the  declaration  in  the  first  been  upon  a  joint  lia- 
bility, say  upon  a  parol  contract,  then  probably  the  liability  of  the  other 
partner  would  have  been  strictly  extinguisJied  or  merged,  though  he  were 
not  sued,  because  a  judgment  extinguishes  the  whole  liability  declared  on  : 
or  if  the  defendant  in  the  previous  suit  had  not  availed  himself  of  his  insol- 
vent discharge,  but  had  joined  in  the  plea  in  the  new  suit,  then,  perhaps, 
judgment  could  not  have  been  given  for  the  plaintiff";  though  this  latter 
question,  the  Chief  Justice  said,  ''would  have  presented  an  inquiry  of  some 
intricacy."  This  decision,  so  far  from  deserving  the  disrespect  with  which 
some  of  the  later  judges  have  treated  it,  appears  to  be  one  of  the  most 
acute  and  able  judgments  ever  pronounced  by  C.  J.  Marsfiall;  but  whether 
right  or  wrong,  none  of  the  subsequent  decisions  appear  to  have  overruled 
or  shaken  it.)  And  a  bond  accepted  from  one  joint  debtor  for  a  joint  debt, 
discharges  the  joint  liability  previously  existing  upon  a  simple  contract; 
because  since  the  bond  is  an  obligation  for  the  same  debt,  the  one  giving  it 
must  be  discharged  from  his  liability  on  the  simple  contract,  as  he  cannot 
be  liable  on  both;  and  if  one  joint  debtor  is  discharged,  the  other  is;  Tom 
V.  Goodrich  and  others,  2  Johnson,  213 ;  Clement  v.  Brush,  3  id.  70;  The 
U.  S.  V.  Astley  et  al.,  3  Washington,  C.  C.  508 ;  Anderson  v.  Levan,  1  Id. 
334;  Banorgee  V.  Hovey  et  al.,  5  Massachusetts,  11;  Doniphan,  &c.  v. 
Gill,  1  B.  Monroe,  199;  Patterson,  &c.  v.  Chalmers,  7  Id.  595,  597. 

It  is  said,  no  doubt  correctly,  in  Jones  v.  Johnson,  that  extinguishment 
of  a  lower  security  by  a  higher,  is  an  operation  of  law,  and  that  no  inten- 
tion of  the  parties  can  prevent  it:  "An  agreement,  however  explicit,  would 
not  prevent  a  promissory  note  from  merging  in  a  bond  given  for  the  same 
debtor;  for  to  allow  a  debt  to  be,  at  the  same  time,  of  diff"erent  degrees,  and 
recoverable  by  a  multiplicity  of  inconsistent  remedies,  would  increase  liti- 
gation," &c.  These  remarks  of  the  Chief  Justice,  it  will  be  observed, 
refer  to  the  case  where  the  bond  is  an  obligation  for  the  same  debt  which  the 
simple  contract  secures  or  evinces,  and  the  strongest  ground  for  this  princi- 
ple is,  that  there  cannot  in  law  exist  two  liabilities  for  one  consideration:  but 


398  smith's   leading    cases. 

tbeu  the  evidence  may  sliow  that  the  bond  is  not  given  as  the  evidence  and 
obligation  of  the  same  deht,  but  was  a  new  and  contingent  obligation  for  a 
now  debt,  (though  for  the  same  sum,  perhaps,)  devised  and  created  to  pro- 
tect and  secure  the  former  debt;  and  in  such  a  case,  it  would  be  but  collat- 
eral security,  and  no  extinguishment.  In  other  words,  it  is  a  matter  of  law, 
that  an  absolute  obligation  under  seal  for  the  payment  of  a  debt,  extinguishes 
a  parol  instrument  or  liability  to  pay  the  same  :  but  it  is  a  question  of  fact, 
depending  on  the  intention  of  the  parties,  whether  the  deed  is  a  new  abso- 
lute obligation  for  the  payment  of  the  same  debt,  or  whether  it  is  a  contin- 
gent and  collateral  instrument,  concocted  and  given  for  the  better  securing 
of  the  parol  debt.  The  presumption  of  fact,  where  the  bond  is  between  the 
same  parties,  and  for  the  same  sum,  is,  that  it  is  an  extinguishment;  Stew- 
art's Appeal,  3  Watts  &  Sergeant,  476;  Frisbie  v.  Larned,  21  Wendell, 
450;  and  that  appears  to  be  a  general  presumption  in  all  cases  of  a  higher 
security;  Butler  v.  3Iiller,  1  Denio,  407,  41.3;  Gardner  v.  Hust,  2  Richard- 
son, 601 ;  but  if  it  be  proved  that  the  intention  was  that  the  former  instru- 
ment should  not  be  extinguished,  an  extinguishment  will  not  take  place; 
see  U.  S.  v.  Lyman,  1  Mason,  482,  505 ;  Van  Vliet  et  al.  v.  Jones  et  al, 
Spencer,  341;  and  Yates  v.  Aston,  4  Q.  B.  182,  196;  Bell  v.  Banks,  3  M. 
&  Gr.  258,  265.  A  bond  and  warrant  by  one  partner,  with  agreement, 
"when  paid,  to  be  in  full,''  is  no  extinguishment,  for  the  contrary  intent  is 
manifest;  Wallace  v.  Fairman,  4  Watts,  378:  and  an  agreement  under 
seal,  whose  expressed  purpose  is  only  to  secure  the  liquidation  or  discharge 
of  the  debt,  is  no  extinguishment  or  merger  of  the  simple  contract  liability; 
Charles  v.  Scott,  1  Sergeant  &  Rawle,  294;  Bank  of  Columbia  v.  Patter- 
son's Adm'r,  7  Cranch,  299;  Baits  v.  Peters  &  Stebbins,  9  Wheaton,  556; 
Montgomery  v.  St.  Stephen's  Church,  4  Watts  &  Sergeant,  542,  546 ;  but 
when  the  bond  of  one  is  taken  at  the  time  of  the  debt  created,  and  of  the  consi- 
deration of  it,  it  would  require  very  strong  evidence  to  show  that  it  was  not 
the  only  security  entered;  Bond  v.  Aitken,  6  Watts  &  Sergeant,  165.  In 
Bray  v.  Bates  and  another,  9  Metcalf,  238,  250,  it  was  held  that  a  bot- 
tomry bond  was  necessarily  an  extinguishment  of  previous  simple  contract 
securities. 

If  the  higher  security  be  not  between  the  same  parties,  as,  if  it  be  the 
bond  of  a  third  person,  or  a  judgment  against  a  third  person;  U.  S.  v.  Ly- 
man ;  Day  and  Penfield  v.  Leal  &  Leal,  14  Johnson,  404 ;  Axers,  Ex'rx  v. 
Musselman,  2  Browne,  ^  1 ;  Beale  v.  Bank,  5  Watts,  529 ;  Wolf  v.  Wyeth, 
11  Sergeant  &  Piawle,  149,  or,  be  in  any  way  between  different  parties, 
Davis  V.  Anable  &  Fidler,  2  Hill's  N.  Y.  339;  see  Holmes  v.  Bell,  3  M. 
&  Gr.  213;  Bell  v.  Banks,  Id.  258;  or  be  in  its  terms  collateral  to  the 
previous  contract;  Langdon  v.  Paul,  20  Vermont,  217,  221;  it  cannot  be 
an  obligation  for  the  same  debt,  and  the  doctrine  of  extinguishment  does 
not  apply;  but  the  effect  will  be  regulated  by  the  principle  respecting  satis- 
faction, considered  in  a  previous  part  of  this  note.  That  is,  the  presump- 
tion of  fact  is,  that  the  higher  security  of  a  different  party,  or  for  a  differ- 
ent sum,  is  intended  not  to  be  a  satisfaction,  but  only  collateral  security  or 
conditional  payment;  but  if  an  agreement  of  the  parties,  that  it  should  be 
received  in  full  satisfaction  and  discharge,  be  proved,  it  will  be  a  discharge: 
Bee  Weakly  V.  Bell  &  Sterling;  Jones  v.  Johnson;  Leas  and  another  v. 


ARMORY    V.     DELAMIRIE.  399 

James,  10  Sergeant  &  Rawle,  307  j  Jones  v.  Fennimore,  1  Green's  Iowa, 
134,  146. 

H.  B.  W. 


^ARMORY  V.   DELAMIRIE.         [n51] 

HILARY,  8  G.  1.— IN  MIDDLESEX,  CORAM .  PR  ATT,  C.  J. 

[REPORTED    1    STRANGE,    504.] 

The  finder  of  a  jewel  may  maintain  trover  for  a  conversion  thereof  by  a  wrong- 
doer. 

A  master  is  answerable  fjr  the  loss  of  a  customer's  property  entrusted  to  his  ser- 
vant in  the  course  of  his  business  as  a  tradesman. 

Where  a  person  who  has  wrongfully  converted  property  will  not  produce  it,  it 
shall  be  presumed,  as  against  him,  to  be  of  the  best  description. 

The  plaintiff,  being  a  chimney-sweeper's  boy,  found  a  jewel,  and  carried 
it  to  the  defendant's  shop  (who  was  a  goldsmith)  to  know  what  it  was,  and 
delivered  it  into  the  hands  of  the  apprentice,  who,  under  a  pretence  of 
weighing  it,  took  out  the  stones,  and  calling  to  the  master  to  let  him  know 
it  came  to  three-halfpence,  the  master  offered  the  boy  the  money,  who  refused 
to  take  it,  and  insisted  to  have  the  thing  again;  whereupon  the  apprentice 
delivered  him  back  the  socket  without  the  stones.  And  now  in  trover 
against  the  master  these  points  were  ruled  : — 

1.  That  the  finder  of  a  jewel,  though  he  does  not  by  such  finding  acquire 
an  absolute  property  or  ownership,  yet  he  has  such  a  property  as  will  enable 
him  to  keep  it  against  all  but  the  rightful  owner,  and  consequently  may 
maintain  trover,  (f) 

2.  That  the  action  will  lay  against  the  master,  who  gives  a  credit  to  his 
apprentice,  and  is  answerable  for  his  neglect. 

3.  As  to  the  value  of  the  jewel,  several  of  the  trade  were  examined  to 
prove  what  a  jewel  of  the  finest  water  that  *would  fit  the  socket  r^-ip-c)-, 
would  be  worth;  and  the  Chief  Justice  directed  the  jury,  that  unless  L  "'-' 
the  defendant  did  produce  the  jewel,  and  show  it  not  to  be  of  the  finest 
water,  they  should  presume  the  strongest  against  him,  and  make  the  value 
of  the  best  jewels  the  measure  of  their  damages,  which  they  accordingly 
did. 


This  is  the  case  usually  referred  to     ing  principle  of  law,  that  bare  possession 
for  the  purpose  of  illustrating  that  lead-     constitutes   a   sufficient  title  to  enable 

^t)  1  Com.  Dig.  Action  upon  trover  (B.)  310. 


400 


SMITn's     LEADING     OASES. 


the  party  enjoying'  it  to  obtain  legal 
remedy  a<:;aiiist  a  mere  wrong-doer.  It 
would  be  almost  a  waste  of  time  to  enu- 
merate tlie  modern  decisions  by  which 
this  proposition  is  enforced  and  explain- 
ed. Two  of  the  most  remarkable  are, 
Sutton  V.  Buck,  2  Taunt.  302 ;  and 
Burton  v.  Hughes,  2  Bingh.  173,  where 
property  having  been  lent  to  the  plain- 
tiff under  a  written  agreement,  it  was 
nevertheless  held  that  he  might  main- 
tain trover  for  it  without  producing  that 
agreement ;  for  though,  if  it  had  been 
necessary  to  prove  the  nature  of  his 
interest  in  it,  the  rules  of  evidence 
would  have  rendered  the  production  of 
the  writing  indispensable,  still  as  pos- 
session is  a  sufficient  title  against  a 
wrong-doer,  it  was  sufficient  to  show  his 
possession  without  inquiring  into  the 
terms  of  it.  [The  qualified  right  of  a 
bankrupt  or  insolvent  to  after  acquired 
property  also  strikingly  illustrates  this 
position.  Herbert  v.  Sayer,  5  Q.  B. 
96.5.]  See  also  Matson  v.  Cook,  4  Bing. 
N.  C.  392.  LEUiot  v.  Kemp,  7  M.  Ik, 
W.  306.] 

Formerly  the  right  of  the  plaintiff  in 
trover  to  the  possession  of  the  goods 
always  came  in  question  under  the  plea 
of  not  guilty ;  but  now,  by  Reg.  Gen. 
Hil.  1836,  if  the  defendant  deny  the 
plaintiff's  title  to  the  goods,  he  must 
plead  specially.  Since  these  rules,  it 
has  been  held,  in  conformity  with  the 
doctrine  laid  down  in  the  principal  case, 
that  "the  plea  of  no  property  in  the 
plaintiff,  means  no  property  as  against 
the  defendant."  Per  Parke,  B.,  in 
Nicholls  v.  Bastard,  2  C.  M.  &  R.  662; 
and  qucere  as  to  the  case  of  Howell  v. 
White,  1  JVI.  &  Rob.  400.  [See  Leak 
V.  Loveday,  4  M.  &  Gr.  980 ;  5  Sc.  N. 
R.  908,  S.  C] 

It  was  in  consequence  of  the  doctrine 
thus  affirmed  in  Armory  v.  Deiamirie, 
viz.  that  mere  possession  is  sufficient 
against  a  wrong-doer,  that  it  was  decid- 
ed in  'iVevelian  v.  Pyne,  Salk.  107  ;  and 
Chambers  v.  Donaldson,  11  East,  65; 
in  opposition  to  several  old  authorities, 
that  a  command  alleged  in  pleading  is 
traversable.  In  Trevelian  v.  Pyne,  the 
action  was  replevin  for  cattle.  Cogni- 
zance, by  the  defendant  as  bailiff  to  J. 
S.  Plea  in  bar,  that  defendant  was  not 
bailiff  to  J.  S.,  and  held  good  on  de- 
murrer; for  though  J.  S.  had  a  right  to 
take  the  cattle,  yet  a  stranger  without 
his  authority  could  not.  Ace.  Robson 
V.   Douglas,   Freem.    536;    George   v. 


Kinch,  7  Mod.  481.  It  was  thought, 
indeed,  long  after  the  decision  in  'JVe- 
velian  v.  Pyne,  that  in  trespass  quare 
clausum  f regit,  if  the  defendant  justi- 
fied under  the  command  of  A.,  in  whom 
he  alleged  the  freeliold  to  be,  the  plain- 
tiff could  not  in  his  replication  traverse 
the  command,  because  that  would  admit 
the  freehold  to  be  in  A. ;  and  if  tlie  free- 
hold were  in  A.  the  plaintiff  ought  not 
to  maintain  his  action.  But  this  distinc- 
tion is  now  completely  exploded,  for  in 
Chambers  v.  Donaldson,  11  East,  65,  the 
defendants  to  an  action  of  trespass  quare 
clausum  /regit,  pleaded  tliat  the  locus 
in  quo  was  the  freehold  of  E.  B.  Port- 
man,  Esq.,  and  that  they  by  his  com- 
mand broke  and  entered  the  same.  The 
plaintiff  traversed  the  command,  and  on 
demurrer  the  replication  was  held  good 
upon  the  express  ground  that  the  defen- 
dant, if  he  had  not  the  command  of  Port- 
man,  was  a  wrong-doer,  and  that  as 
against  a  urong-doer  the  plaintiff's  pos- 
session, even  supposing  him  to  have  no 
title,  would  be  sufficient  to  maintain  the 
action.  See  Heath  v.  Milward,2  Bing. 
N.  C.  98.  [Carnaby  v.  Welby,  8  A.  & 
E.  878;  Brest  v.  Lever,  7  M.  &  W. 
594.] 

On  the  same  principle  rests  the  well- 
known  rule  in  actions  of  ejectment,  viz. 
that  the  plaintiff  must  recover  hy  the 
strength  of  his  oion  title,  not  the  weak- 
ness of  his  antagonist's  ;  for  no  one 
can  recover  in  ejectment,  who  would 
not  be  entitled  to  enter  without  bring- 
ing ejectment,  and  any  person  entering 
on  the  possession  of  the  tenant,  unless 
he  have  a  better  title,  is  a  wrong-doer. 

In  the  late  case  of  Dobree  v.  Napier, 
2  Bing.  N.  C.  781,  a  distinction  was  en- 
grafted *upon  the  general  rule  r*ir.3i 
that  a  command  is  traversable.  '-  '  ■' 
This  was  an  action  of  trespass  for  seiz- 
ing a  steam-vessel.  The  defendant 
pleaded  a  seizure  of  the  vessel  as  a 
prize,  by  the  command  of  the  Queen  of 
Porlugual.  The  plaintiff  replied  facts 
showing  that  the  defendant  was  prohi- 
bited from  entering  the  service  of  the 
Queen  of  Portugal,  by  the  provisions  of 
the  Foreign  Enlistment  Act.  Upon  de- 
murrer, judgment  was  given  tor  the 
defencfent.  "The  only  ground,"  said 
Tindal,  C.  J.,  "on  which  the  authority 
of  the  servant  is  traversable  at  all  in  an 
action  of  trespass,  is  to  protect  the  per- 
son or  property  of  a  party  trom  the  offi- 
cious or  wanton  interference  of  a  stran- 
ger,   where   the    principal   might  have 


ARMORY    V.     DELAMIRIE. 


401 


been  willing  to  waive  his  rio-hts.  It  is 
obvious,  that  the  full  benefit  of  this  prin- 
ciple is  secured  to  the  plaintiffs,  by- 
allowing  a  traverse  of  the  authority  de 
facto,  without  permitting  them  to  im- 
peach it  by  a  legal  objection  to  its  vali- 
dity in  another  and  foreign  country." 
[And  on  similar  reasoning  seems  to  rest 
the  well-known  doctrine  that  a  subse- 
quent ratification  is  tantamount  to  a 
prior  command  of  an  act  done  in  the 
name  of  the  party  who  ratifies;  nay, 
that  it  has  relation  back  to  the  time  of 
the  act  done,  and  is  in  point  of  law,  and 
may  be  described  in  pleading  as  a  com- 
mand. So  that,  where  a  person  if  pre- 
sent at  the  time,  could  lawfully  com- 
mand any  act  to  be  done,  any  other 
person,  though  either  wholly  without 
authority,  or  exceeding  the  limits  of  his 
authority,  would  be  justified  in  doing 
that  act,  provided  he  did  it  in  the  name, 
or  as  one  acting  by  the  authority  of  the 
person  entitled,  (whether  to  his  advan- 
tage or  not,)  and  obtained  his  subse- 
quent ratification. — The  Rolla,  6  Rob, 
364,  Buron  v.  Denman,  2  E.xch.  167  ; 
Wilson  V.  Tammon,6  Scott,  N.  R.  894  : 
see  Cameron  v.  Kyte,  3  Knapp,  332 ; 
Hill  V.  Biggs,  3  Moore,  P.  C.  465.] 

As  to  the  third  point  decided  in  this 
case,  it  is  an  illustration  of  that  favourite 
maxim  of  the  law,  omnia  prasurniintur 
contra  spoliator  em ;  which  signifies, 
that  if  a  man  by  his  own  tortious  act, 
withhold  the  evidence  by  which  the  na- 
ture of  his  case  would  be  manifested, 
every  presumption  to  his  disadvantage 
will  be  adopted.  Thus,  if  a  man  with- 
hold an  agreement,  under  which  he  is 
chargeable,  it  is  presumed  to  have  been 
properly  stamped.  Crisp  v.  Anderson, 
1  Stark,  3.5.  So,  too,  if  goods  are  sold 
without  any  express  stipulation  as  to 
their  price,  if  the  vendor  refuse  to  give 
any  express  evidence  of  their  value, 
tiiey  are  presumed  to  be  worth  only  the 
iowest    price   for  which    goods   of  that 


description  usually  sell;  unless  the  ven- 
dee himself  be  shown  to  have  suppress- 
ed the  means  of  ascertaining  the  truth, 
for  then  a  contrary  presumption  arises, 
and  they  are  taken  to  be  of  the  very 
best  description.  Clunnes  v.  Pezzy,  1 
Camp.  8,  et  notas.  In  a  recent  case, 
Braithwaite  v,  Coleman,  1  Harrison, 
223,  the  Court  of  King's  Bench  diftered 
on  the  application  ot  this  principle;  it 
was  an  action  by  the  indorsee  against 
the  drawer,  and  the  only  evidence  of 
notice  of  dishonour  was  the  following 
statement  made  by  the  defendant : — "  I 
have  several  good  defences  to  the  ac- 
tion ;  in  the  first  place,  the  letter"  (con- 
taining the  notice  of  dishonour)  "  was 
not  sent  to  me  in  time."  A  notice  to 
produce  the  letter  had  been  given,  but 
it  was  not  produced  :  Lord  Denman,  C. 
J.,  thought,  that,  as  the  defendant  with- 
held the  letter,  the  jury  were  justified 
in  assuming,  as  they  actually  had  done, 
that  if  produced  it  would  appear  to  have 
been  in  time.  But  hittledale,  Patteson, 
and  Coleridge,  J.  J.,  thought;  that  the 
letter  might  have  been  dated  on  the 
proper  day,  but  sent  by  private  hand,  or 
in  some  way  in  which  it  would  r*ig3„i 
*not  have    arrived    in  proper    ^  J 

time ;  and  that  the  defendant  would 
not  be  bound  to  produce  a  letter,  which, 
on  the  face  of  it,  might  make  against 
him,  and  which  he  might  not  have  evi- 
dence to  explain  ;  and  a  rule  for  a  new 
trial  was  made  absolute.  [On  the  other 
hand,  in  Curlewis  v,  Corfield,  1  Q.  B, 
814,  where  a  letter  was  shewn  to  have 
been  sent  to  the  defendant  the  day  after 
dishonour,  and  the  defendant,  an  attor- 
ney, afterwards  objected  the  want  of 
due  presentment,  but  not  that  of  notice; 
the  jury  on  proof  of  a  notice  to  produce 
was  held  warranted  in  inferring  that 
the  letter  contained  due  notice  of  dis- 
honour. See  Bell  v.  Frankis,  4  M.  & 
Gr,  446  ;  Lobb  v,  Stanley,  5  Q,  B.  574.] 


Few  tilings  in  law  are  more  difficult,  than  to  determine  what  is  a  sufficient 
right  of  property,  to  support  trover  or  replevin.  The  object  of  both  actions, 
is  to  affijrd  a  remedy  for  injui'ies  to  the  right  of  property  in  chattels  per- 
sonal, and  the  plaintiflf  must  allege  in  both,  that  the  goods  for  which  he 
brings  suit,  are  his,  or  that  he  is  possessed  of  them  as  of  his  own  property. 
The  latter  allegation  is  sufficient  in  trover,  but  not  as  it  seems  in  replevin, 
where  the  goods  are  usually  described  as  the  goods  of  the  plaintiff.  A  traverse 

Vol.  I.— 26 


402  smith's   leading    cases. 

of  the  property  of  the  plaintiff,  is  consequently  a  sufficient  answer  in  all  cases 
to  a  declaration  in  replevin,  and  unless  on  special  demurrer,  will  also  be 
sufficient  in  trover.  Both  trover  and  replevin  stand  in  this  respect  on  the 
same  footing,  and  neither  can  be  sustained  for  an  injury  to  possession  apart 
from  properly.  A  distinction  has  been  taken  between  these  actions  and 
trespass,  which,  although  requiring  an  allegation  of  property  in  the  declara- 
tion, may  unquestionably  be  brought  for  every  direct  injury  to  a  lawful 
possession.  Dcmick  v.  Chapman,  11  Johnson,  132  ;  Schcrmerhorn  v.  Von 
Valkenburgh,  11  id.  529;  Cook  v.  Howard,  13  id.  276;  Hoyt  v.  Gelstop, 
ib.  141,  561;  Aiken  v.  Buck,  2  Wend.  4G1;  Butts  v.  Collins,  13  id.  143. 
But  this  distinction  is  extremely  thin,  and  seems  to  be  verbal  rather  than  real. 
The  allegation  of  property  is  substantically  the  same  in  all  these  actions, 
and  there  can  therefore  be  but  little  difference  in  the  proof. 

The  possession  of  chattels  is  prima  facie  evidence  of  property,  and  the 
right  to  their  possession  a  right  of  property,  if  not,  against  all  who  cannot 
show  a  better  title,  at  least  against  all  who  rely  on  one  which  is  worse.  And 
the  distinction  between  trover,  and  trespass  de  bonis  tresportatis,  if  any, 
seems  to  be,  that  the  one  is  founded  on  mere  possession,  and  the  other  on 
rjcht  as  constituted  or  evidenced  by  possession.  So  far,  therefore,  as  re- 
gards the  property  of  the  plaintiff,  trover  and  trespass  are  identical  in  plead- 
ing, and  approach  very  nearly  in  evidence.  Thus  where  the  defendant  in 
an  action  of  trover,  pleaded  the  bankruptcy  of  the  plaintiff,  and  the  conse- 
quent transfer  of  all  his  interest  in  the  goods  in  suit  to  his  assignees,  and 
the  plaintiff  replied,  that  subsequently  to  the  bankruptcy  he  became  law- 
fully possessed  of  the  goods,  and  continued  so  possessed  down  to  the  time  of 
suit  brought,  the  court  held,  that  the  replication  was  a  good  answer  to  the  plea, 
and  sustained  the  declaration  ;  Webb  v.  Fox,  7  Term,  391.  "  Prima  facie," 
said  Kenyon,  C.  J.,  ''  the  possessor  of  personal  property  is  the  owner  of  it." 
And  Lawrence,  J.  held  the  following  language,  in  delivering  his  opinion  on 
the  same  occasion.  <*To  maintain  trover,  the  plaintiff  must  have  either  the 
absolute  or  a  special  property  in  the  goods  that  are  the  subject  of  the  action  : 
he  need  not  have  both  ;  either  the  one  or  the  other  is  sufficient.  Absolute 
property  is,  where  one,  having  the  possession  of  chattels,  has  also  the  exclu- 
sive richt  to  enjoy  them,  and  which  can  only  be  defeated  by  some  act  of  his 
own.  Special  property  is  where  he,  who  has  the  possession,  holds  them 
subject  to  the  claims  of  other  persons.  There  may  be  special  property  with- 
out possession :  or  there  may  be  special  property,  arising  simply  out  of  a 
lawful  possession,  and  which  ceases  when  the  true  owner  appears.  Such 
was  the  case  of  Armory  v.  Delamirie,  1  Str.  504,  where  a  chimney-sweeper's 
boy,  having  found  a  jewel,  carried  it  to  a  goldsmith  to  know  what  it  was,  who 
refused  to  return  it;  and  it  was  holden,  that  though  the  plaintiff  did  not,  by 
such  finding,  acquire  an  absolute  property,  yet  he  had  such  a  property  as 
would  enable  him  to  keep  it  against  all,  but  the  rightful  owner,  and  conse- 
quently that  he  might  maintain  trover  for  it  against  the  goldsmith,  who  was 
a  wrong-doer.  Now  that  appears  to  me  to  go  the  whole  length  of  deciding 
this  case.  Here  the  plaintiff  says,  that  he  was  possessed  of  these  goods,  to 
which  the  defendants  plead  that  the  plaintiff  is  a  bankrupt,  and  that  all  his 
effects  are  vested  in  his  assignees :  and  I  cannot  agree  with  the  plaintiff's 
counsel,  that  the  plea  should  have  gone  farther,  and  shown  that  this  was  not 
one  of  the  cases,  in  which  a  bankrupt  may  have  property;  the  plea  states 


L 


ARMORY     V.     D  E  L  A  M  I  R  I  E.  40o 

generally,  that  the  property  was  out  of  the  plaintiff.  But  for  the  same  rea- 
son, I  think,  it  was  sufficient  for  the  plaintiff  in  his  replication  to  show  a 
right  to  the  goods,  which  he  has  done  by  alleging,  that  he  '  became  lawfully 
possessed  of  them  since  the  bankruptcy,  and  that  he  has  kept  them  without 
any  claim,  interruption,  molestation  or  denial  of  the  assignees.'  I  agree 
with  the  defendant's  counsel,  that  it  is  not  sufficient  to  state  in  a  declaration 
in  trover,  that  the  plaintiff  is  possessed,  without  adding  that  the  property  of 
the  goods  is  in  him :  but  it  was  not  necessary  to  repeat  in  this  replication, 
that  the  property  was  in  the  plaintiff,  since  the  replication  shows  those  cir- 
cumstances, in  answer  to  the  plea,  from  which  the  law  will  infer  a  spcnal 
property  in  him  ;  such  a  property  as  enables  him  to  maintain  trover."  The 
views  thus  expressed  were  substantially  adopted  in  the  subsequent  case  of 
Grilas  V.  Grover,  6  Bligh,  277,  in  the  House  of  Lords,  where  all  the  judges 
expressed  the  opinion,  that  possession  is  sufficient  proof  of  property  in  trover 
against  a  wrong-doer. 

The  rule  of  law  has  been  thus  established  from  the  necessity  of  the  case, 
and  to  prevent  the  inconveniences  which  would  arise,  if  no  redress  could  be 
had  for  the  wrongful  appropriation  or  detention  of  chattels  personal,  unless 
by  a  suit  in  the  name  of  the  absolute  owner.  For  as  the  various  events  of 
life  and  business,  frequently  place  this  species  of  property  in  the  hands  of 
persons,  who  have  a  bare  possession  without  title,  their  possession  must  be 
protected,  in  order  to  prevent  it  from  becoming  a  prey  to  violence,  and  a  bait 
for  fraud.  No  one,  therefore,  who  takes  or  withholds  chattels  personal 
wrongfully  from  another,  can  set  up  a  defect  in  the  title  of  the  injured  party 
as  a  bar  to  his  remedy.  To  hold  the  law  otherwise  would  be  as  Lord  £^en- 
yon  remarked,  to  invite  all  the  world  to  scramble  for  the  possession  of  per- 
sonal property,  whenever  it  was  out  of  the  care  and  custody  of  the  owner, 
and  thus  open  a  door  to  numerous  acts  of  fraud  and  violence.  All  the  forms 
of  action  are  designed  for  purposes  of  public  policy,  as  well  as  of  private 
advantage.  The  breach  of  the  peace  by  the  wrongful  act  of  the  defendant, 
was  once  a  necessary  part  of  the  complaint  in  trespass,  and  although  this 
allegation  is  now  usually  omitted,  the  action  may  still  be  brought,  whenever 
the  possession  of  property,  although  without  title,  is  assailed  by  a  wrong- 
doer, who  has  neither  possession  nor  title,  for  even  if  the  plaintiff  were 
destitute  of  all  right,  the  public  good  would  require,  that  the  defendant  should 
not  profit  by  an  act  wrong  in  itself,  and  dangerous  to  the  community.  (^Supra.) 
Burrows  v.  Stoddard,  3  Conn.  100.  This  reason  obviously  applies  to  trover, 
as  well  as  trespass,  for  otherwise  no  redress  could  be  had  in  the  numerous 
instances,  in  which  the  injury  consists  in  withholding  possession,  and  not  in 
obtaining  it,  and  where  an  action  on  the  case  is  the  only  remedy. 

The  finder  of  a  chattel,  who  is  wrongfully  deprived  of  it,  may,  therefore, 
sustain  trover,  when  trespass  will  not  lie,  not  so  much  for  the  purpose  of 
affording  him  redress,  as  for  that  of  inflicting  proper  punishment  on  the 
defendant.  And,  although  his  loss  is  evidently  less  than  it  would  be,  if  he- 
had  a  good  title  instead  of  a  precarious  occupancy,  his  recovery  will  extend 
to  the  full  value  of  the  chattel  in  damages,  because  anything  short  of  this, 
would  enablg  the  defendant  to  profit  by  his  own  wrong. 

It  is  accordingly  well  settled,  in  most  of  the  states  of  this  country,  under 
the  principles  and  decisions  cited  above,  that,  although  the  action  of  trover 
is  founded  on  the  right  of  property,  if  this  right  exist  relatively,  it  need 
not  be  absolute ;  and  that,  as  it  is  enough  if  the  right  of  the  plaintiff  be 


404:  smith's    leading   cases. 

better  tban  that  of  the  defendant,  whatever  it  may  be,  with  regard  to 
the  rest  of  the  world,  possession  will  be  sufficient  evidence  of  right,  as 
against  all  who  have  neither  right  nor  rightful  possession.  Rogers  v.  Arnold, 
12  Wend.  30.  The  right  of  the  finder  of  a  chattel  to  maintain  trover 
against  every  one  but  the  true  owner,  and  those  claiming  under  him,  was 
judicially  recognised  in  M'Laughlin  v.  Waite,  9  Cowen,  670;  Poole  v.  Sy- 
monds,  1  New  Hamp.  289  ;  and  Pinkham  v.  Gear,  3  Id.  485  ;  and  expressly 
adjudged  in  Clark  v.  Molony,  3  Harrington,  68,  where  it  was  decided  that  he 
might  enforce  his  right  against  a  second  finder,  who  was  said  to  stand  in  the 
same  position  relatively  to  him,  as  he  did  towards  the  owner  It  was  held 
in  like  manner  in  Duncan  v.  Spear,  11  Wend.  54,  that  a  prior  possession  is 
sufficient  evidence  of  title  in  trover,  as  against  all  who  have  nothing  better 
to  show  than  a  subsequent  possession,  and  that  it  cannot  be  rebutted,  by 
showing,  that  it  was  acquired  under  a  sale,  which  passed  no  title,  and  left 
the  ownership  outstanding  in  a  third  person.  Sutherland,  J.,  in  delivering 
the  opinion  of  the  court,  relied  on  the  previous  case  of  Daniells  v.  Ball,  11 
Wend.  58,  note,  when  it  was  decided,  that  trover  might  be  maintained  by 
the  plaintiff,  for  goods  which  had  been  delivered  to  him  by  the  agent  of  the 
owner,  but  without  any  authority  for  the  purpose,  against  the  defendant 
who  obtained  possession  of  them  unlawfully,  under  color  of  legal  process. 
It  was  held  in  like  manner  in  Thayer  v.  Hutchinson,  13  Weston,  507,  after 
an  elaborate  examination  of  principles  and  authorities,  that  the  lawful  pos- 
session of  chattels,  is  sufficient  to  sustain  trover,  as  against  any  one  who 
converts  them  to  his  own  use  without  right,  and  consequently,  by  wrong. 
Similar  ground  was  taken  by  the  Supreme  Court  of  New  Hampshire  in 
Poole  V.  Symonds,  1  New  Hampshire,  289  ;  Pinkham  v.  Gear,  3  Id.  485  j 
and  Hyde  v.  Noble,  13  Id.  494,  where  it  was  said,  that  a  special  property  is 
sufficient  to  sustain  trover,  and  that  although  mere  physical  possession  may 
not  always  be  enough  to  constitute  special  property,  it  will  do  so  when 
coupled  with  the  duty  to  keep  safely,  and  deliver  to  the  absolute  owner,  on 
demand.  And  it  was  consequently  decided,  that  one  who  has  received 
goods  belonging  to  another,  from  the  sheriff,  and  given  a  receipt  pro- 
mising to  redeliver  them  when  required,  is  entitled  to  recover  full  damages 
in  trover,  for  their  conversion. 

It  is,  notwithstanding,  thoroughly  well  settled  that  the  goods  must  be 
described  in  pleading  as  the  goods  of  the  plaintiff.  It  is  not  enough  to 
aver  that  he  is  entitled  to  their  possession,  for,  although  this  is  in  many 
cases  sufficient  as  evidence,  both  in  trover  and  replevin,  yet  it  is  not  so 
always,  and  cannot  be  pleaded  without  contravening  the  rule,  which  re- 
quires that  conclusions  of  fact  shall  be  set  forth  positively,  and  not  left 
to  inference  from  other  allegations,  Patterson  v.  Adams,  7  Hill,  126; 
Bond  V.  Mitchell,  3  Barbour,  S.  C.  304.  But  the  better  opinion  seems  to 
be,  that  rightful  possession,  when  given  in  evidence,  not  only  proves,  but 
constitutes  a  sufficient  right  of  property,  to  maintain  replevin  as  well  as 
trover,  as  against  every  one  who  takes,  or  withholds  chattels  personal,  without 
having  either  the  right  of  property,  or  the  right  of  possession.  Rollc's  Abridg. 
title  Replevin,  A.  C.  Nor  will  evidence  that  the  absolute  right  of  property ,'^is 
in  a  third  person,  be  sufficient  in  replevin,  anymore  than  in  trover,  to  rebut  a 
right  founded  in  a  rightful  possession.  The  contest  in  both  actions  is  be- 
tween the  plaintiff  and  the  defendant,  and  the  rights  of  third  persons  are 
immaterial,  unless  they  operate  directly  or  indirectly  on  those  of  the  parties. 


ARMORY     V.     DELAMIRIE.  405 

The  plaintiff  must  undoubtedly  show  a  prima  facie  right  to  possession,  but 
if  he  show  this  as  against  the  defendant,  he  need  not  do  so,  as  against  all 
the  world.     "  The  cases  of  Demick  v.  Chapman,  11  Johnson,  132  ;  and  Cook 
V.  Howard,  13  Id.  276,  said  Nelson,  C.  J.  in  Rogers  v.  Arnold,  expressly 
decide  that  as  in  the  action  of  trespass,  the  possession  of  a  chattel,  is   prima 
facie  evidence  of  right,  so  a  mere  stranger  cannot  deprive  the  party  of  that 
possession,  without  showing  some  authority,  or  right,  from  the  true  owner,  to 
justify  the  taking.     This  sound  and  incontrovertible   principle  has  been 
extended  to  trover,  and  we  think  it  applies  to  replevin."     And  he  went  on 
to  hold,  that  the  existence  of  an  outstanding  title  in  a  third  person  is  imma- 
terial, in  replevin,  unless,  in  so  far  as  it  negatives  the  right  of  the  plaintiff,  as  be- 
tween himself  and  the  defendant,  and  would  constitute  a  bar  in  trover  or 
trespass  de  bonis  asportatis.       It  is  true  that  a  plea  of  property  in  a  third 
person,  is  frequently  put  in  contradistinction  to  a  plea  of  property  in  the 
defendant,  and  that  either  plea  will  be  a  good  answer  to  the  action.     Quincy 
V.  Hall,  1  Pick.  357.     But  in  truth,  both  these  modes  of  pleading  are  sub- 
stantially the  same.     The  gist  of  both  is  a  traverse  of  the  property  of  the 
plaintiff,  without  which  the  affirmative  allegation  of  property,  whether  in 
the  defendant  or  a  stranger,  would  be  immaterial.     This  allegation  is  mere 
matter  of  inducement,  and  a  replication  traversing  it,  and  tendering  issue 
demurrable.     Prosser  v.  Woodward,  21  Wend.  208  ;  Robinson  v.  Calloway, 
4  Pike,  94 ;  Anderson  v.  Talcott,  1  Gilman,  365 ;  Gentry  v.  Borgis,  6 
Blackford   261.     The  plaintiff  must  reply,  reaffirming  his  property,  and 
concluding  to  the  country.     Chambers  v.  Hunt,  3  Harrison,  339  :  Pringle 
v.  Phillips,  1  Sand.  Sup.  Ct.  202.     And  if  the  jury  summoned  to  try  such 
an  issue,  merely  find  that  the  property  is  not  in  the  defendant,  or  that  it  is 
in  a  stranger,  without  finding  whether  it  is  or  is  not  in  the  plaintiff,  the 
verdict  will  be  immaterial,  and  a  judgment  on  it,  erroneous.      Bemus  v. 
Beekman,  3  Wend.  667.      The  true  character,  therefore,  of  the  pleas  in 
replevin,   which    are   commonly   described    as  pleas    of    property,   in   the 
defendant  or  in  a  stranger,  is,    that  of  a  broad  traverse  of  the  property 
of  the  plaintiff,  as  averred  in  the  declaration.     And  any  right  of  property, 
either  general  or  special,  and  whether  of  unlimited  duration,  or  merely  for 
the  time  being,  will,  consequently,  support  this  averment,  and  sustain  the 
issue  on  the  part  of  the  plaintiff.     Rogers  v.  Arnold.     Even,  therefore,  when 
issue  is  joined  on  a  plea  of  property  in  a  third  person,  proof  of  property  in  him, 
will  be  insufficient,  unless  it  disproves  the  right  of  the  plaintiff  to  possession, 
as  between  himself  and  the  defendant.  Such  is  undoubtedly  the  law  in  trover ; 
Duncan  V.  Spear,  11  Wend.  54  ;  and  such,  notwithstanding  the  remarks  of 
Cowen,  J.,  in  Prosser  v.  Woodward,  21  Wend.  210,  would  seem  to  be  the  law 
in  replevin.  And  the  general  principle,  that  although  mere  possession  may  not 
be  enough  to  support  replevin,  it  may  be  maintained,  W'^hen  there  is  a  right  of 
possession,  however  temporary,  has  been  frequently  applied  by  the  courts  of 
this  country.     Chambers  v.  Hunt,  3   Harrison,  339 ;  Mead  v.  Kilday,  2 
Watts,  110 ;  Smith  v.  Williamson,  1  Harris  &  Johnson,  147 ;  Cullum  v. 
Bevans,  6   Id.  469 ;    Miller  v.  Adsit,  16  Wend.   335 ;    Buckly  v.  Handy, 
2  Miles,  455. 

In  order,  however,  that  possession  should  confer  the  right  to  bring  trover 
or  replevin,  it  must  be  rightful  in  itself,  and  for  the  time  being,  however, 
subject  to  be  defeated  by  the  acts  of  the  person  who  is  the  true  or  absolute 


t 


400  smith's   leading   cases. 

owner.  Thus  a  sheriff's  officer  who  takes  the  property  of  one  man  under 
a  writ  against  another,  cannot  recover  in  either  of  these  forms  of  actions, 
even  against  a  wrong  doer.  Kemp  v.  Thompson,  17  Alabama,  9.  The 
possession  must,  moreover,  be  held  by  the  plaintiff  on  his  own  behalf,  and 
not  merely  on  behalf  of  another.  A  servant  cannot,  therefore,  maintain 
trover  or  replevin  for  goods  committed  to  his  custody,  by  his  master,  for 
his  possession,  is  exclusively  that  of  his  master  and  not  his  own.  Harris 
v.  Smith,  3  S.  &  R.  20.  And  this  will  be  true,  so  long  as  the  master  retains 
the  entire  dominion  over  the  chattel,  and  the  right  to  recover  the  possession 
whenever  he  may  think  proper,  although  he  has  entered  into  an  executory 
contract,  which  may  end  in  transferring  the  right  of  property  to  the  servant. 
The  Lehigh  Co.  v.  Field,  8  W.  &  S.  232  ^  The  Farmer's  Bank  v.  McKee,  2 
Barr,  318;  Tathill  v.  Wheeler,  6  Barbour's  S.  C.  362.  It  is,  moreover, 
well  settled,  that  in  order  to  sustain  trover,  the  right  on  which  it  is  founded 
must  continue  in  force  down  to  the  time  of  the  conversion.  Thus  a  sheriff's 
officer  cannot  recover  in  trover,  for  goods  which  he  has  deposited  with  the 
defendant  for  safe  keeping,  after  the  writ  under  which  they  were  taken  has 
been  set  aside  by  the  court.  Walpole  v.  Smith,  4  Blackford,  74.  And  when 
the  plaintiff's  right  grows  out  of  possession  apart  from  title,  it  will  fail  if 
the  goods  come  to  the  hands  of  the  true  owner,  before  their  conversion  by 
the  defendant.     Schermerhorn  v.  Van  Valkenburgh,  11  Johnson,  329. 

It  was  held  in  Buckley  v.  Handy,  above  cited,  that  where  the  defendant  in 
replevin,  relies  on  a  special  right  or  interest,  derived  directly  or  indirectly 
from  the  plaintiff^  he  must  plead  it  specially,  and  cannot  give  it  in  evidence 
under  a  general  plea  of  property  in  himself,  and  traverse  of  the  property  of 
the  plaintiff.  This  decision  is,  in  some  measure,  sustained  by  the  reasoning 
of  the  Court  of  Exchequer,  in  Mason  v.  Farrall,  12  M.  &  W.  674,  684. 
But  it  would  seem,  notwithstanding,  that  as  the  question  in  replevin,  is  not 
as  to  the  absolute  ownership  of  the  plaintiff,  but  as  to  his  right  relatively  to 
the  defendant,  any  evidence  must  be  admissible,  which  shows  either  a  general 
or  special  property  in  the  latter,  superior  to  that  of  the  plaintiff  as  it  regards 
the  immediate  possession,  which  is  the  purpose  of  the  action.  And  this 
view  is  sustained  by  the  case  of  Owen  v.  Knight,  4  Bing.  N.  C.  54,  and 
White  V.  Tiel,  12  A.  &  E.  114,  where  it  was  held  that  a  lien  may  be  given  in 
evidence  under  a  traverse  of  the  plaintiff's  possession  in  trover,  which  puts 
both  property  and  possession  in  issue.  And  there  can  be  little  doubt  that 
the  defendant  may  sustain  a  plea  of  property  in  himself,  by  proving  that 
he  holds  the  property  under  a  lease  for  a  term  certain  from  the  plaintiff. 
Wheeler  v.  Train,  3  Pick.  255;  Collins  v.  Evans,  15  id.  63. 

There  are,  however,  several  decisions  in  this  country,  which  deny  the  right 
to  maintain  trover  or  replevin,  on  the  mere  ground  of  possession  apart  from  pro- 
perty. Thus  in  Ludden  v.  Leavitt,  9  Mass.  104,  it  was  held  that  there  must 
be  either  a  general  or  special  property  to  support  trover,  and  that  it  cannot 
be  brought  by  a  mere  bailee  who  has  no  interest  in  the  goods,  and  has  simply 
received  them  to  keep  safely.  Similar  decisions  were  made  in  Barker  v. 
Miller,  6  Johnson,  195;  Edson  v.  Weston,  7  Cowen,  280;  Phillips  v.  Hall, 
8  Wend.  613;  and  Dillenback  v.  Jerome,  7  Cowen,  294.  The  existence  of 
an  outstanding  title  in  a  third  person,  was  treated  as  a  bar  to  a  recovery  in 
trover  in  Laspeyse  v.  M'Farland,  187;  Sylvester  v.  Girard,  4  Rawle,  185,  and 
Grubb  V.  Guilford,  4  Watts,  223.     In  Harrison  v.  Mcintosh,  1  Johnson, 


ARMORY    V.    DELAMIRIE.  407 

380,  and  Waterman  v.  Robinson,  3  Mass.  304,  the  same  ground  was  taTien 
with  regard  to  replevin,  which  was  held  to  require  proof  of  property  in  the 
ordinary  sense  of  the  word,  as  distinguished  from  a  mere  right  to  present 
possession.  The  law  was  held  the  same  way  in  Whitwell  v.  Wells,  24 
Pick.  30,  where  it  was  decided  that  replevin  cannot  be  founded  merely 
on  possession,  or  be  sustained  by  a  bailee,  without  other  right  than  that 
given  by  the  bailment.  And  in  Butts  v.  Collins,  13  Wend.  139,  Chan- 
cellor Walworth  said,  that  the  possession  of  property  is  not  sufficient  to 
sustain  trover  or  replevin,  even  when  coupled  with  an  obligation  for  its 
safe  keeping  and  re-delivery,  although  amply  sufficient  to  authorise  a 
recovery  as  against  a  wrong  doer  in  trespass.  It  has  been  shown  above, 
that  this  distinction  necessarily  involves  the  conclusion,  that  the  possession 
of  chattels  should  be  protected  against  dii'ect  and  immediate  injuries,  but 
not  against  those  which  are  inflicted  indirectly,  and  that  it  may  be  fraudu- 
lently withheld  with  impunity,  where  it  could  not  have  been  rightfully 
taken.  The  Chancellor  subsequently  adhered  to  this  view,  on  the  hearing 
of  a  writ  of  error  to  a  decision  of  the  Supreme  Court  in  which  it  had  been 
held,  that  a  party  to  whom  goods  are  delivered  under  an  obligation  to  return 
-  them,  cannot  sustain  replevin,  if  he  has  parted  with  the  actual  possession 
of  the  goods  before  the  taking,  but  his  opinion  was  overruled,  and  the 
judgment  below  reversed  by  the  Court  of  Errors.  Miller  v.  Adsit,  16 
Wend.  335. 

It  is  every  where  admitted,  that  a  special  property,  such  as  is  possessed  by 
a  party  holding  chattels  on  pawn,  or  by  right  of  lien,  is  sufficient  to  support 
an  action  of  trover.  Ingersoll  v.  Van  Bokkelin,  9  Cowen,  680.  Thus,  where 
goods  are  delivered  to  an  auctioneer,  for  the  purpose  of  sale,  he  acquires  a  pro- 
perty coupled  with  an  interest,  and  may  bring  trover  or  replevin  against  a  pur- 
chaser who  removes  them,  without  payment  of  the  purchase-money.  Tyler  v. 
Freeman,  3  Cushing,  31.  Nor  is  this  right,  inconsistent  with  a  co-existing 
right  to  maintain  this  action,  or  trespass,  for  the  same  injury,  on  the  part  of 
the  holder  of  the  general  property  in  the  same  chattels ;  Ely  v.  Ehle,  3 
Comstock,  506 ;  Root  v.  Chandler,  10  Wend.  310 ;  Spevin  v.  Mitchell,  9 
Alabama,  744;  Hart  v.  Hyde,  5  id.  330;  Thorp  v.  Burling,  11  Johnson, 
285;  Drake  v.  Reddington,  9  New  Hampshire,  243;  Tucker  v.  Gordon,  9 
Vermont,  330,  although  a  recovery  by  one  will  be  a  bar,  to  any  action  by 
the  other.  Smith  v.  James,  7  Cowen,  329.  It  is,  however,  well  settled, 
that  trover  cannot  be  maintained  on  a  special  property,  without  possession  or 
the  right  of  possession,  and  that  when  goods  pledged  to  one  man  are  subse- 
quently pledged  to  another,  the  latter  cannot  recover  for  their  wrongful  con- 
version by  a  third  person,  during  the  continuance  of  the  lien  created  by  the 
first  pledge.  Bush  v.  Lyon,  9  Cowen,  54.  And  the  court  expressed  the 
opinion,  that  the  law  would  have  been  the  same,  had  the  goods  been  sold  to 
the  plaintiff,  instead  of  being  pledged,  because  he  would  have  taken  a  mere 
rii^ht  of  property,  without  either  possession  or  a  right  to  possession.  It  was 
S!iid,  in  like  manner,  by  Tilghman,  C.  J.,  in  Mathers  v.  Trinity  Church,  3 
S.  k  E.  512,  that  although  a  constructive  possession,  or  a  mere  right  to 
possession,  may  be  sufficient,  when  the  property  is  general,  yet  that  when 
it  is  special,  the  possession  must  be  actual.  But  an  opposite  dictum,  by  C. 
J.  Eyre,  in  Fowler  v.  Down,  1  Bos.  &  Pul.  45,  that  actual  possession 
is  not  necessary  if  there  be  a  right  to  possession,  and  that  a  factor  may  sue 


403  smith's    leading    cases. 

in  trover,  for  the  goods  consigned  to  liim  by  his  principal,  before  he  receives 
them,  seems  to  present  the  true  rule  of  law. 

But  although  the  right  of  a  party,  having  either  a  general  or  special  pro- 
perty in  chattels,  to  bring  an  action  of  trover  is  undoubted,  yet  this  is  only 
because  both  these  forms  of  property  may  exist  in  the  same  chattel,  as  pre- 
sent and  vested  interests,  in  different  persons,  at  the  same  time.  Thus 
where  property  is  held  by  a  factor,  under  a  right  of  lien,  or  by  an  agent 
acting  under  a  special  or  general  authority ;  the  title  of  the  general  owner, 
and  the  qualified  title  of  the  bailee,  co-exist  simultaneously ;  and,  cither, 
will  support  the  averments  of  possession  and  property  in  the  declaration. 
But  where,  the  owner  instead  of  a  bailment,  makes  a  grant  in  the  nature  of 
a  lease  or  hiring  for  a  definite  period,  the  grantee  takes  the  absolute  pro- 
perty in  the  chattel  granted,  for  that  period  ;  and  although  a  reversionary 
interest,  equally  absolute,  exists  in  the  grantor,  yet  his  present  property  is 
entirely  divested.  It  is,  accordingly,  well  settled,  that  where  a  chattel  has 
been  leased,  and  the  owner  retains  a  mere  reversionary  interest,  he  cannot 
maintain  trover  for  its  conversion  by  a  third  person.  Nations  v.  Hawkins, 
11  Alabama,  859;  Vincent  v.  Cornell,  13  Pick.  296;  Fairbank  v.  Phipps, 
22  id.  535. 

And  as  trespass  must  be  founded  both  on  property  and  possession,  the 
same  reasoning  applies  still  more  strongly  against  the  right  to  bring  tres- 
pass. Fitler  v.  Shotwcll,  7  W.  &  S.  14 ;  Moggridge  v.  Eveleth,  9  Metcalf, 
233;  Lunt  v.  Brown,  1  Shepley,  236.  Nor  will  such  a  reversionary  interest 
justify  a  recourse  to  replevin,  which,  although  founded  in  property,  can  only 
be  employed  where  there  is  an  immediate  right  to  possession.  Wheeler  v. 
Train,  3  Pick.  258 ;  Collins  v.  Evans,  15  id.  63.  The  only  remedy,  there- 
fore, open  to  the  owner  during  the  continuance  of  the  lease,  is  an  action  on 
the  case,  setting  forth  the  nature  of  his  interest,  and  claiming  damages 
accordingly.  Ayer  v.  Bartlett,  9  Pick.  156.  But  if  the  lessee  undertake 
to  transfer  the  title  to  the  chattel  by  an  absolute  transfer  or  sale,  he  will 
forfeit  his  interest  under  the  lease,  and  the  owner  will  be  entitled  to  bring 
trover  or  replevin  immediately  against  the  purchaser.  Sanborn  v.  Colmer, 
5  New  Hampshire,  14 ;  Cooper  v.  Willomatt,  1  C.  B.  172  ;  Grant  v.  King, 
14  Vermont,  367.  The  effect  will  be  the  same,  if  the  chattel  be  destroyed 
by  the  bailee,  or  any  other  act  done  by  him  which  determines  his  right 
under  the  bailment.  Bryant  v.  Wardell,  2  Exchequer,  479.  Ripley  v. 
Dolbier,  6  Shepley,  382.  "Where,  however,  the  lease  of  the  chattel,  is 
coupled  with  an  executory  agreement  for  an  absolute  transfer  of  the  title  on 
the  fulfilment  of  certain  stipulations,  it  will  take  efi"ect  as  a  conditional  sale, 
and  the  lessee  may  assign  the  possession  of  the  chattel,  and  his  interest  under 
the  contract,  to  a  third  person,  without  rendering  either  himself  or  the 
assignee  liable  in  trover.  Vincent  v.  Cornell.  And  no  sale  or  conversion 
of  the  chattel,  however  entire  or  wrongful,  can  enure  as  a  forfeiture  of  the 
lease  or  authorise  the  lessor  to  bring  replevin  or  trover,  unless  it  be  the  act  of 
the  lessee  himself  or  with  his  assent.  And  in  some  of  the  cases,  the  lessor 
has  been  refused  a  recovery  in  trover,  notwithstanding  an  absolute  sale  or 
conversion  of  the  chattel  by  the  lessee,  and  compelled  to  seek  redress  in  a 
special  declaration  in  case.  Andrews  v.  Shaw,  4  Devereux,  70 ;  Pavis  v. 
Mobly,  4  Devereux  &  Battle,  323.  It  would  seem,  however,  that  the  owner 
of  a  chattel  will  not  be  debarred  from  a  recovery  in  trover  or  replevin,  by 


ARMORY    V.    D  E  L  A  M  I  R  I  E.  409 

( 

hiring  it  at  a  fixed  rate  of  compensation,  if  lie  reserve  the  right  to  resume 
posse*ssion  of  it  when  he  thinks  fit,  instead  of  departing  witli  his  whole 
interest  for  the  time  being.  Drake  v.  lloddiugton,  9  New  Hampshire,  243. 
Batchelder  v.  Warren,  19  Vermont,  171.  Nor  will  the  existence  of  a  lease 
of  the  realty,  defeat  the  right  of  the  lessor  to  bring  trover  for  fixtures  severed 
by  the  tenant,  because  the  mere  severance  takes  them  out  of  the  operation 
of  the  lease,  and  entitles  the  lessor  to  take  possession  of  them  immediately. 
Farrant  v.  Thompson,  2  Dowling  &  Ryland,  1. 

It  follows  from  what  has  been  said,  that  although  a  right  of  possession 
as  against  the  defendant,  may  be  sufficient  to  enable  the  plaintiff  to  sustain 
replevin,  and  to  entitle  him  to  a  verdict  on  a  traverse  of  the  averment  of  pro- 
perty in  the  declaration,  yet,  that  when  he  has  neither  a  right  of  property 
nor  a  right  of  possession  at  the  time  of  bringing  the  action,  the  verdict  must 
be  against  him.  The  usual  judgment  on  such  a  verdict,  is  for  a  return  in 
addition  to  costs  and  damages,  even  when  the  defendant  has  pleaded  pro- 
perty in  a  stranger,  and  shown  no  right  or  interest  in  himself.  For  as  the 
plaintiff  cannot  be  allowed  to  retain  goods,  which  he  has  gained  by  the  im- 
proper use  of  legal  process,  the  law  restores  them  to  the  custody  of  the 
party  from  whom  they  were  taken,  without  prejudice  to  the  claims  of  third 
persons.  But  where  it  is  apparent,  under  these  circumstances,  that  an 
order  for  a  return  would  defeat  the  purposes  of  justice,  it  will  not  be  made, 
and  the  judgment  will  be  entered  simply  for  damages.  Thus,  when  the 
averment  of  property  in  the  declaration,  is  disproved  by  showing  a  lease  or 
bailment  for  a  term  certain,  to  the  defendant  or  a  third  person,  which  expires 
before  judgment,  leaving  a  present  and  vested  right  of  property  in  the  plaintiff, 
the  court  may  refuse  to  compel  a  return  which  would  be  useless,  and  con- 
fine the  defendant  to  the  compensation  awarded  by  the  jury,  for  the  unlawful 
taking  and  detention  of  the  property  under  the  replevin.  "Wheeler  v. 
Train,  4  Pick.  168.  The  same  principle  will  apply  in  every  case,  where  the 
right  relied  on  as  disproving  that  of  the  plaintiff,  is  temporary  in  its  nature, 
and  expires  before  judgment,  as  when  it  consists  in  an  attachment  subsist- 
ing at  the  time  of  action  brought,  and  dissolved  afterwards.  Simpson  v. 
McFarland,  18  Pick.  433.  The  court  may  also  refuse  a  return,  when  it 
has  been  rendered  impossible  by  the  act  of  the  law,  without  the  default  of 
the  plaintiff,  as  when  the  property  has  been  sold  under  the  operation  of  an 
attachment  antecedent  to  the  action,  in  which  case  the  plaintiff  will  be  dis- 
charged on  payment  of  the  costs  and  damages,  and  the  defendant  remitted 
to  the  fund  arising  from  the  sale.  But  a  successful  traverse  of  the  property 
of  the  plaintiff,  gives  the  defendant  a  prima  facie  right  to  a  return  which  can- 
not be  denied,  unless  injustice  would  arise  from  enforcing  it.  It  is  not 
enough,  therefore,  that  the  right  of  property  set  up  in  b^r  of  the  plaintiff,  has 
expired,  it  must  also  be  shown  that  the  defendant  has  a  present  and  vested 
right,  of  which  he  could  not  avail  himself  at  the  trial.  Thus,  where  the  plain- 
tiff brought  replevin  for  a  yoke  of  oxen  which  he  had  leased  to  a  third  person, 
in  whose  hands  they  had  been  attached  by  the  defendant,  the  court  directed 
a  nonsuit  at  the  trial,  on  the  ground  that  the  plaintiff  had  no  present  right 
to  the  oxen,  by  his  own  showing,  at  the  time  when  the  replevin  issued,  and 
afterwards  gave  judgment  for  a  return,  although  the  lease  had  expired, 
because  it  was  not  sufficiently  plain  on  the  evidence,  that  the  general  right 
of  property  was  in  the  plaintiff.     Collins  v.  Evans,  15  Pick.  53. 


410  smith's  leading  cases. 

Either  trover  or  replevin  may  be  maintained  for  things  which  have  formed 
part  of  the  realty,  if  the}'  are  carried  away,  or  converted  to  the  defend- 
ant's use,  after  severance  from  the  freehold.  But  the  plaintiff  should  have 
actual  or  constructive  possession  of  the  land ;  and  he  cannot  recover,  if  the 
series  of  acts,  in  which  the  severance  and  conversion  have  occurred,  have 
been  sufficient  to  create  an  adverse  possession  in  the  defendant,  although 
during  a  period  short  of  twenty-one  years.  To  hold  the  law  other- 
wise, would  be  to  bring  the  title  to  land  in  dispute  in  a  transitory  action, 
when  the  plaintiff  has  not  previously  adopted  proper  means  for  reducing  his 
title  to  possession ;  for  if  the  general  right  to  the  land,  unaccompanied  by 
possession,  were  to  be  held  as  giving,  first  a  general  property  in  whatever 
might  be  severed  from  the  freehold,  and  then  a  consequent  constructive 
possession,  the  only  question  in  an  action  of  trover  or  replevin,  brought 
against  an  actual  possessor,  would  be  as  to  the  party,  in  whom  the  title  to 
the  realty  lay.  If,  however,  the  land  be  not  in  the  possession  of  the  defen- 
dant, but  unoccupied,  then  evidence  of  title  may  be  received  on  the  part  of 
the  plaintiff;  since,  in  that  case,  the  title  draws  to  it  a  constructive  pos- 
session. On  the  whole,  it  would  seem,  that  the  right  to  maintain  these 
actions,  for  things  severed  from  the  freehold,  must  reside  in  the  party  who 
has  the  possession  of  land,  whether  actual  or  constructive,  with  this  except 
tion,  that  where  there  is  an  actual  adverse  possession  in  the  defendant,  a 
constructive  possession  cannot  exist  in  the  plaintiff,  and,  consequently,  that 
the  latter  is  not  entitled  to  recover. 

It  is  well  settled,  therefore,  that  although  trover  or  replevin  will  not  lie 
for  chattels  severed  from  land  in  the  adverse  possession  of  the  defendant  or 
a  third  person ;  Mather  v.  Trinity  Church,  3  S.  &  R.  509  j  Barker  v. 
Howell,  6  id.  476 :  Brown  v.  Caldwell,  10  id.  11-i,  yet  that  either  of  these 
forms  of  action  or  trespass,  may  be  brought  after  entry  by  the  plaintiff,  or  a 
judgment  in  ejectment  in  his  favour,  which  revests  the  possession  by  relation 
from  the  period  at  which  the  right  first  accrued,  and  entitles  him  to  recover, 
for  all  injuries  to  the  freehold  while  he  was  out  of  possession.  Coke  Lit. 
257;  Elliott  v.  Powell,  10  Watts,  454;  Heath  v.  Ross,  12  Johnson,  140; 
Moers  v.  Waite,  3  Wend,  104 ;  Morgan  v.  Varick,  8  id.  597 ;  Baker  v. 
Rich,  3  Denio,  79.  And  although  a  reversioner  cannot  bring  trespass  quare 
clausum  fregit,  for  the  severance  of  trees  or  other  fixtures,  from  the  land,  while 
in  the  possession  of  a  tenant,  he  may  maintain  either  trespass  de  bonis  aspor- 
tatis  or  trover,  for  the  things  themselves  after  they  are  severed,  because  both 
the  right  of  possession  and  the  right  of  property  vests  in  him  immediately 
upon  the  severance.  Higgou  v.  Mortimer,  6  Car.  &  P.  616 ;  Parrant  v. 
Thompson,  2  Dow.  &  Ry.  1.  The  distinction,  in  this  respect,  between  tres- 
pass de  bonis  asport^tis,  and  trespass  quare  clausum  fregit,  seems  to  have 
been  overlooked,  in  Baker  v.  Rich,  where  it  was  held,  that  a  vendee  may 
maintain  trover,  for  trees  cut  down  and  sold  by  the  vendor  before  the  delivery 
of  possession,  but  not  trespass  de  bonis  asportatis  or  replevin. 

Neither  trover  nor  replevin  can  be  supported  for  a  chose  in  action,  such, 
for  instance,  as  a  share  of  stock  ;  Sewall  v.  The  Lancaster  Bank,  17  S.  &  R. 
285;  although  they  may  be  well  brought,  for  the  paper  or  certificate  under 
or  by  which  the  existence  or  character  of  a  chose  in  action  is  evidenced ; 
Comparet  v.  Burr,  5  Blackford,  419;  Pierce  v.  Vandyke,  6  Hill,  013. 
And  when  so  brought,  the  amount  of  the  recovery  will  not  be  limited  to 


ARMORY    V.     DELAMIRIE.  411 

the  value  of  the  paper  or  document  in  controversy,  when  considered  with  refer- 
ence to  the  materials  or  labour  employed  in  or  upon  it,  but  will  extend  to  that 
of  the  claim  or  debt,  of  which  it  is  the  evidence.  And  although  the  action  is 
founded  on  tort,  anything  tending  to  reduce  the  debt  by  proving  a  set  off,  or 
a  failure  of  consideration,  will  be  admissible  in  evidence;  Romig  v.  Romig, 
2  Kawle,  241.  This  doctrine  evidently  makes  the  chattel  nominally  sued 
for,  a  mere  incident,  and  that  of  which  it  is  the  evidence,  the  true  object  of 
the  suit.  In  Matthews  v.  Sherwell,  2  Taunton,  440,  trover  was  brought  by 
the  assignees  of  a  bankrupt  against  the  defendant,  for  a  check  which  the 
bankrupt  had  drawn  and  delivered  after  the  act  of  bankruptcy,  but  before 
the  commission  had  issued.  A  verdict  was  given  at  the  trial  for  the  amount 
of  the  check,  which  had  been  paid  to  the  defendant  by  the  bankers  on  whom 
it  was  drawn.  It  was  contended  for  the  plaintifis,  on  a  subsequent  motion 
to  set  aside  the  verdict  and  enter  a  non-suit,  that  they  were  entitled  to  re- 
cover the  sum  received  on  the  check,  and  if  not,  at  least  to  nominal  damages 
for  the  conversion  of  the  paper  on  which  it  was  written.  But  the  court  held, 
that  as  the  check  was  void  as  against  the  assignees,  they  were  not  legally 
prejudiced  by  its  payment,  and  that  the  value  of  the  paper  was  too  incon- 
siderable to  constitute  a  cause  of  action.  And  as  an  action  of  trover  for 
an  instrument  which  constitutes  the  evidence  of  a  debt,  may  be  defeated 
by  disproving  the  debt,  or  showing  that  the  plaintiff  is  not  entitled  to  it,  so 
when  this  is  not  done  the  recovery  will  extend  to  the  full  amount  of  the 
debt;  Alsager  v.  Close,  10  M.  &  W.  576;  Ingals  v.  Lord,  1  Cowen,  240; 
Tilden  v.  Brown,  14  Vermont,  164. 

The  finder  of  an  instrument  by  which  a  debt  or  other  chose  in  action  is 
evidenced,  does  not  ordinarily  acquire  any  interest  in  the  chose  itself,  or  in 
the  contract  in  which  it  originated.  It  is  therefore  doubtful  whether  he  can 
maintain  trover  or  replevin,  against  a  third  person  by  whom  it  is  wrongfully 
detained  or  taken.  In  M'Laughlin  v.  Waite,  9  Cowen,  670,  the  plaintiff 
found  a  lottery  ticket  which  had  drawn  a  prize,  and  delivered  it  for  safe 
keeping  to  the  defendant,  who  received  the  amount  of  the  prize  and  appro- 
priated it  to  his  own  purposes.  It  was  held  under  these  circumstances,  that 
the  plaintiff  could  not  maintain  an  action  for  money  had  and  received,  and 
much  doubt  was  expressed  whether  he  could  have  recovered  in  trover. 
The  ground  taken  by  the  court  was,  that  finding  the  ticket  did  not  give  the 
plaintiff  an  interest  in  the  contract  of  which  it  was  the  evidence,  and  that  the 
ticket  itself  was  a  mere  incident  to  the  contract.  It  would,  notwithstanding, 
appear,  that  when  an  instrument  payable  to  bearer,  and  negotiable  by  de- 
livery, is  wrongfully  taken  or  withheld  from  the  finder,  he  must  be  entitled 
to  maintain  trespass  or  trover  against  the  wrong  doer. 

Trespass  cannot  be  maintained  without  proof  of  an  injury  to  possession, 
and  replevin  stood,  until  recently  in  New  York,  on  the  same  footing  in  this 
respect  with  trespass.  It  is,  however,  universally  admitted,  that  actual  pos- 
session is  not  necessary,  and  that  either  trespass  or  replevin  may  be  sustained 
on  a  constructive  possession.  Thus  a  vendee  of  goods  may  recover  in  tres- 
pass, before  they  are  delivered,  against  any  one  who  takes  them  from  the 
custody  of  the  vendor;  North  v.  Turner,  9  S.  &  R.  244,  because  the  right 
of  property  in  chattels  personal,  is  clothed  by  the  law  with  a  constructive 
possession,  even  when  there  never  has  been  any  actual  possession.  And 
this  rule  holds  good,  not  only  when  the  actual  possession  is  consistent  with 


412  smith's   leading  cases. 

that  of  the  true  owner,  but  when  it  is  adverse.  It  is  well  settled,  therefore, 
that  the  owner  of  goods  may  maintain  trespass,  against  any  one  by  whom 
they  are  unlawfully  taken,  whether  from  his  own  possession  or  that  of  a 
prior  trespasser. 

But  much  doubt  has  been  entertained,  whether  a  defendant  can  be  made 
liable  either  in  trespass  or  any  other  form  of  action,  for  simply  receiving 
goods  wrongfully  delivered  to  him  by  the  person  in  actual  possession.  It 
was  held  in  Storm  v,  Livingston,  G  Johnson,  44,  that  where  goods  are  sold 
by  a  bailee,  the  vendee  is  not  liable  in  trover,  without  proof  of  a  subsequent 
conversion,  by  a  refasal  to  deliver  them  to  the  owner  on  demand  or  in  some 
other  manner.  It  was  subsequently  decided  in  Marshall  v.  Davis,  1  Wend. 
Ill,  that  as  the  vendee  is  not  liable  under  such  circumstances  in  trover,  he  can- 
not be  so  in  trespass  or  replevin.  This  decision  was  followed  in  Nash  v.  Mosher, 
19  Wend.  431 ;  and  Barrett  v.  Warren,  3  Hill,  350,  where  it  was  held, 
that  proof  of  property  in  the  plaintiff  and  possession  in  the  defendant,  is  not 
sufficient  to  raise  a  presumption  of  an  unlawful  taking  by  the  latter,  or  to 
shift  the  burden  of  proof  and  compel  him  to  show  how  he  came  by  the  pos- 
session, and  that  when  the  plaintiff  is  out  of  possession,  he  cannot  recover 
without  proving  that  the  goods  were  taken  by  the  defendant,  and  not  de- 
livered to  him  by  the  party  in  possession.  But  in  the  subsequent  case  of 
Peirce  v.  Vandyke,  6  Hill,  614,  it  was  held,  that  proof  of  a.  rightful  pos- 
session, and  a  wrongful  taking  from  that  possession,  is  sufficient  to  sustain 
trespass  or  replevin  not  only  against  the  first  taker,  but  any  third  person  into 
whose  hands  the  goods  may  come  subsequently  ;  and  to  cast  on  the  latter  the 
burden  of  proving  that  he  obtained  them  lawfully,  and  without  knowledge 
of  the  title  of  the  true  owner. 

The  true  rule,  therefore,  would  seem  to  be  that,  although  the  defendant 
cannot  be  made  liable  in  any  form  of  action,  for  simply  consenting  to  receive 
personal  property  from  a  party  in  possession,  when  he  is  ignorant  that  the 
latter  is  guilty  of  a  wrong  in  delivering  it,  yet  that  when  he  receives  it  with 
full  knowledge  that  the  delivery  is  wrongful,  he  becomes  a  sharer  in  the 
wrong,  and  will  be  liable  to  all  the  consequences  attached  to  a  wrongful 
taking.  In  Barrett  v.  Warren,  CowEN,  J.,  who  dissented  from  the  rest  of 
the  court,  attempted  to  narrow  the  right  of  exemption  still  further,  and  to 
confine  it  to  those  cases  where  the  delivery  is  made,  as  the  result  of  a  bond 
fide  purchase.  But  as  the  doctrine  thus  contended  for,  would  render  a  bailee 
liable  in  trespass,  for  receiving  goods  for  transportation  or  safe  keeping,  in 
case  the  title  of  the  bailor  proved  defective,  it  is  unnecessarily  severe,  and 
•was  rightly  overruled  by  the  majority  of  the  court. 

When  the  sale  and  delivery  of  goods  are  induced  by  fraud,  the  vendor 
may  maintain  trespass  or  replevin,  against  the  vendee,  or  a  third  person  by 
•whom  they  have  been  taken  from  the  latter.  For,  as  under  these  circum- 
stances he  is  entitled  to  treat  the  sale,  and  all  that  is  done  under,  it  as  wholly 
void,  neither  the  vendee  nor  those  claiming  under  him,  can  set  it  up  as  a 
bar  to  any  right  which  would  have  been  valid  had  it  not  been  made;  Gary 
V.  Hotailing,  1  Hill,  oil.  And  it  has  even  been  held,  that  a  levy  by  the 
sheriff  under  these  circumstances,  on  the  property  while  in  the  hands  of  the 
vendee,  will  render  him  liable  in  trespass  to  the  vendor ;  Acker  v.  Campbell, 
23  Wend.  372;  Ash  v.  Putnam,  1  Hill,  302. 

It  is,  however,  well  settled,  that  as  a  fraudulent  sale  is  voidable  only,  and  not 


ARMORY     V.     DELAMIRIE.  413 

void,  the  vendor  cannot  set  it  aside  to  the  injury  of  third  persons  who  have 
made  expenditures  under  it,  on  the  supposition  that  it  is  binding.  A  pur- 
chaser for  value  and  without  notice  from  the  vendee,  will  therefore  acquire  a 
good  title,  and  cannot  be  made  liable  in  any  form  of  action  by  the  vendor; 
Buffington  v.  Gerrish,  15  Mass.  156  ;  Mowry  v.  Walsh,  8  Cowen,  238.  But 
to  produce  this  eifect  in  New  York,  there  must  be  an  absolute  purchase  for 
a  new  and  valuable  consideration,  and  not  a  mere  assignment  or  transfer,  as 
security  for  an  antecedent  debt ;  Root  v.  French,  13  Wend.  5.  The  extin- 
guishment or  satisfiiction  of  a  precedent  debt  is,  however,  regarded  as  a  valu- 
able consideration  in  most  of  the  other  states  of  the  Union,  and  will  there- 
fore, no  doubt,  sustain  a  bona  fide  transfer  of  property  to  the  creditor,  even 
when  it  has  been  fraudulently  acquired  by  the  debtor.  And  in  Gilbert  v. 
Hudson,  4  Maine,  345,  a  levy  on  goods  fraudulently  purchased  under  an  exe- 
cution issued  by  a  creditor,  whose  debt  was  contracted  subsequently  to  the 
purchase,  was  held  good  against  the  vendor,  on  the  ground  that  he  was  not 
entitled  to  disaffirm  the  sale,  after  third  persons  had  made  advances  to  the 
vendee  under  the  belief  that  it  was  valid.  A  similar  view  was  taken  in 
Bradley  v.  Obear,  10  New  Hampshire,  448. 


==COLLINS  V.   BLANTERN.  [^53] 


EASTER.— 7  GEORGE  3.    C.  B. 

[REPORTED   2  WILSON,   341  ] 

Illegality  may  be  pleaded  as  a  defence  to  an  action  on  a  bond. 

Shrophshire,  to  wit.  Robert  Blantern,  late  of  Rodenhurst,  in  the  said 
county,  yeoman,  was  summoned  to  answer  Edward  Collins  of  a  plea,  that 
he  render  to  him  seven  hundred  pounds  which  he  ov;es  to  and  unjustly 
detains  from  him,  &c.  Whereupon  the  said  Edward  Collins,  by  John 
Leake  his  attorney,  says,  that  whereas  the  said  Robert  Blantern  on  the 
sixth  day  of  April,  which  was  in  the  year  of  our  Lord  1765,  at  Rodenhurst 
aforesaid  in  the  county  aforesaid,  by  his  certain  writing  obligatory  acknow- 
ledged himself  to  be  held  and  firmly  bound  unto  the  said  Edward  Collins  in 
the  aforesaid  sum  of  seven  hundred  pounds,  to  be  paid  to  the  said  Edward 
Collins  when  he  should  be  thereunto  required;  nevertheless,  the  said  Robert 
Blantern  (although  often  thereunto  required)  hath  not  paid  the  said  seven 
hundred  pounds  to  the  said  Edward  Collins,  but  hath  hitherto  refused  and 
still  doth  refuse  to  pay  the  same  to  the  said  Edward  Collins,  wherefore  he 
says  that  he  is  the  worse,  and  hath  damages  to  the  value  of  ten  pounds,  and 
therefore  he  brings  suit,  and  so  forth ;  and  he  brings  here  into  court  the 


414  smith's   leading    cases. 

aforesaid  writing  obligatory,  which  testifies  the  said  debt  in  form  aforesaid, 
the  date  whereof  is  the  same  day  and  year  above  mentioned. 

And  the  said  Robert,  by  George  Greene,  his  attorney,  comes  and  defends 
the  wrong  and  injury,  when,  &c.,  and  craves  oyer  of  the  said  supposed 
writing  obligatory,  and  it  is  read  to  him  in  these  words :  to  wity  Know  all 
men  by  these  presents,  that  we,  John  Walker  of  Forton  in  the  county  of 
P^-.r^-|  Stafford,  yeoman,  Thomas  Walker  of  *Draycott-in-the-Moors  in  the 
L  -'  said  county  of  Stafford,  yeoman,  and  Robert  Blantern  of  Roden- 
hurst  in  the  county  of  Salop,  yeoman,  are  held  and  firmly  bound  to  Edward 
Collins  of  Brecond  in  the  said  county  of  Stafford,  surgeon,  in  the  sum  of 
seven  hundred  pounds  of  good  and  lawful  money  of  Great  Britain,  to  be 
paid  to  the  said  Edward  Collins,  or  his  certain  attorney,  executors,  adminis- 
trators, or  assigns,  for  which  payment,  to  be  well  and  faithfully  made,  we 
bind  ourselves  and  each  and  every  of  us  jointly  and  severally,  our  and  each 
and  every  of  our  heirs,  executors,  and  administrators,  firmly  by  these  pre- 
sents, sealed  with  our  seals  j  dated  this  sixth  day  of  April,  in  the  fifth  year 
of  the  reign  of  our  sovereign  lord  George  the  Third,  by  the  grace  of  God, 
of  Great  Britain,  France  and  Ireland,  king,  defender  of  the  faith,  and  so 
forth,  and  in  the  year  of  our  Lord  one  thousand  seven  hundred  and  sixty- 
five  ;  he  also  craves  oyer  of  the  condition  to  the  said  supposed  writing  obliga- 
tory, and  it  is  read  to  him  in  these  words;  to  wit.  The  condition  of  this 
obligation  is  such,  that  if  the  above-boundeu  John  Walkei",  Thomas  Walker, 
and  Robert  Blantern,  our  heirs,  executors,  or  administrators,  shall  and  do 
well  and  truly  pay  or  cause  to  be  paid  unto  the  above-named  Edward  Col- 
lins, his  executors,  administrators,  or  assigns,  the  full  sum  of  three  hundred 
and  fifty  pounds  of  good  and  lawful  money  of  Great  Britain,  upon  the  sixth 
day  of  May  next,  without  fraud  or  further  delay,  then  this  obligation  to  be 
void  and  of  none  effect,  or  else  to  remain  in  full  force  and  virtue ;  which 
being  read  and  heard,  the  said  Robert  saith,  that  the  said  Edward  ought  not 
to  have  his  aforesaid  action  thereof  against  him  the  said  Robert,  because  he 
says  that  the  said  supposed  writing  ohligatory  is  not  his  deed,  and  of  this 
he  puts  himself  upon  the  country,  &c.  And  for  further  plea  in  this  behalf 
the  said  Robert,  by  leave  of  the  court  here  for  this  purpose  first  had  and 
obtained,  according  to  the  form  of  the  statute  in  such  case  made  and  pro- 
vided, says,  that  the  said  Edward  ought  not  to  have  his  aforesaid  action 
thereof  against  him,  because  he  says  that  before,  and  at  the  time  of  the 
making  of  the  above-mentioned  supposed  writing  obligatory,  and  also  before 
and  at  the  time  of  the  making  of  the  promissory  note  hereafter  mentioned, 
to  wit,  at  Rodenhurst  aforesaid,  the  said  John  Walker  and  Thomas  Walker 
r*i  Kp  I  Ji  *the  said  supposed  writing  obligatory  named,  and  also  one  Robert 
L  -^  Walker,  one  Thomas  Scillitoe,  and  one  John  CuUick,  stood  respec- 
tively indicted  in  a  due  course  of  law  on  the  prosecution  of  one  John 
Rudge,  by  five  several  and  respective  indictments,  for  wilful  and  corrupt 
perjury,  to  which  said  several  and  respective  indictments  the  said  John 
Walker,  Thomas  Walker,  Robert  Walker,  Thomas  Scillitoe,  and  John  Cul- 
lick,  had  respectively  pleaded  the  several  pleas  of  not  guilty  before  the 
making  of  the  said  supposed  writing  obligatory,  and  also  before  the  time  of 
the  making  of  the  said  note  hereafter  mentioned ;  and  the  traverses  of  the 
said  John  Walker,  Thomas  Walker,  Robert  Walker,  Thomas  Scillitoe,  and 
John  Cullick  respectively  on  the  respective  indictments  were,  at  the  time  of 


\ 


COLLINS     V.     BLANTBRN.  415 

tlie  making  of  the  unlawful,  -wicked,  and  corrupt  agreement  hereafter  men- 
tioned, and  of  the  note  hereafter  mentioned,  and  also  of  the  above  supposed 
writing  obligatory,  to  wit,  on  the  day  whereon  the  said  supposed  writing 
obligatory  was  made,  about  to  come  on  to  be  tried  at  the  assizes  then,  to 
wit,  on  that  day,  being,  and  continuing  to  be,  held  at  Stafford  for  the  county 
of  Stafford,  and  that  the  said  John  Walker,  Thomas  Walker,  Robert 
Walker,  Thomas  Scillitoe,  and  John  Cullick,  so  standing  indicted  on  the 
prosecution  of  the  said  John  Ptudge,  and  the  said  traverses  so  being  about 
to  be  tried  as  aforesaid,  it  was  on  the  said  sixth  day  of  April  in  the  year 
1765,  in  the  said  writing  obligatory  mentioned,  to  %vit,  at  Rodenhurst  afore- 
said, unlawfully,  wickedly,  and  corruptly  agreed  by  and  between  the  said 
John  Rudge,  the  prosecutor  of  the  indictments  aforesaid,  the  said  Edward 
Collins  the  plaintiff,  and  the  said  John  Walker,  Thomas  Walker,  Robert 
Walker,  Thomas  Scillitoe,  and  John  Cullick,  the  defendants  in  these  respec- 
tive indictments,  that  the  said  Edward  Collins  the  now  plaintiff  should  give 
to  the  said  John  Rudge,  the  prosecutor  of  the  indictments  aforesaid,  his 
note  in  writing,  commonly  called  a  promissory  note,  as  and  for  value 
received,  to  bear  date  on  a  certain  day  and  in  a  certain  year  now  past,  to 
wit,  on  the  day  and  year  last  mentioned,  for  a  large  sum  of  money,  to  wit, 
the  sum  of  three  hundred  and  fifty  pounds,  payable  to  the  said  John  Rudge 
thereafter,  to  wit,  one  mouth  after  the  date  thereof,  as  a  consideration  for 
his  the  said  John  Rudge's  *not  appearing  to  give  evidence  as  prose-  p^jc-ir--! 
cutor  on  the  trial  of  any  or  either  of  the  traverses  aforesaid,  against  L  J 
any  or  either  of  the  defendants,  and  that  in  consideration  thereof  the  said 
John  Rudge  should  not,  nor  would  appear  at  the  trial  of  the  traverses  afore- 
said as  prosecutor,  and  should  not,  nor  would  give  evidence  on  any  or  either 
of  the  said  indictments  against  any  or  either  of  the  parties  so  standing 
indicted  as  aforesaid,  and  that  the  said  John  Walker,  Thomas  Walker,  and 
Robert  Blantern  the  now  defendant  should  seal,  and  as  their  deed  deliver 
unto  the  said  Edward  Collins  their  bond  or  obligation  of  the  same  date  with 
the  said  note  in  the  penal  sum  of  seven  hundred  pounds,  with  a  condition 
thereunder  written  for  the  payment  of  three  hundred  and  fifty  pounds  on 
the  sixth  day  of  May  then  next  and  now  elapsed,  as  an  indemnity  to  him 
the  said  Edward  Collins  for  the  giving  of  such  note;  and  the  said  Robert 
Blantern  further  saith,  that  in  pursuance  and  in  part  performance  of  the 
said  unlawful,  wicked,  and  corrupt  agreement,  the  said  Edward  Collins  did 
then  and  there,  before  the  trial  of  the  said  traverses,  or  of  any  or  either  of 
them,  to  wit,  on  the  said  6th  day  of  April  in  the  year  1765  aforesaid,  at 
Rodenhurst  aforesaid,  make,  give,  and  deliver  unto  the  said  John  Rudge  his 
certain  note  in  writing,  commonly  called  a  promissory  note,  bearing  date  as 
aforesaid,  to  wit,  on  the  day  and  in  the  year  last  mentioned,  for  the  sum  of 
three  hundred  and  fifty  pounds,  as  for  value  received,  payable  to  the  said 
John  Rudge  thereafter,  to  wit,  pne  month  after  the  date  thereof,  according 
to  the  tenor  and  effect  of  the  agreement  aforesaid,  as  a  consideration  for  his 
the  said  John  Rudge's  not  appearing  as  prosecutor,  and  for  his  not  giving 
evidence  as  prosecutor  on  the  trial  of  any  or  either  of  the  traverses  afore- 
said, against  any  or  either  of  the  parties  so  indicted  as  aforesaid;  and  that 
in  pursuance  of  the  said  unlawful,  wicked,  and  corrupt  agreement,  and 
according  to  the  tenor  and  effect  thereof,  the  said  John  Rudge  then  and 
there  accepted,  had  and  received  the  said  note  of  and  from  the  said  Edward 


416  smith's  leading   cases. 

Collins  for  tlie  purpose  aforesaid,  and  in  part  performance  of  the  aforesaid 
unlawful,  wicked,  and  corrupt  agreement;  and  that  in  further  pursuance 
and  completion  of  the  said  unlawful,  wicked,  and  corrupt  agreement,  and 
according  to  the  terras  and  effect  thereof,  the  said  John  Walker,  Thomas 
Walker,  and  Robert  Blantern  the  now  defendant,  did  then  and  there  imme- 
r*l  'SSI  ^^^^^^y  *ufter  the  giving  of  the  said  note,  and  before  the  trial  of  the 
L  '  J  traverses  aforesaid,  or  of  any  or  either  of  them,  to  wit,  on  the  said 
6th  day  of  April  in  the  year  1765  aforesaid,  seal,  and  as  their  deed  deliver 
unto  the  said  Edward  Collins  the  said  writing,  now  brought  here  into  court, 
with  the  condition  above  specified,  as  an  indemnity  to  him  the  said  Edward 
Collins  for  the  giving  of  such  note  so  given  for  the  cause  aforesaid ;  and  the 
said  Robert  Blantern  further  saith,  that  the"  said  Edward  Collins  then  and 
there  at  the  time  of  the  giving  of  the  said  note  to  the  said  John  Rudge  well 
knew  for  what  cause  and  consideration  the  same  was  so  given,  and  that  the 
said  Edward  Collins,  at  the  time  of  the  sealing  and  delivering  to  him  of  the 
writing  now  brought  here  into  court,  took,  accepted,  and  received  the  same 
of  and  from  the  said  John  Walker,  Thomas  Walker,  and  Robert  Blantern 
the  now  defendant,  as  an  indemnity  against  the  aforesaid  note,  with  this, 
that  the  said  Robert  Blantern  doth  aver,  that  the  said  supposed  writing  obli- 
gatory now  brought  here  into  court  was  given  for  such  consideration  as  afore- 
said, and  no  other  whatsoever;  and  that  he  the  said  Robert  Blantern  and 
the  said  John  Walker  and  Thomas  Walker  mentioned  in  the  said  supposed 
writing  obligatory  were  not,  nor  were,  nor  was  any  or  either  of  them,  at  the 
time  of  the  making  of  the  aforesaid  note,  or  at  the  time  of  the  sealing  or 
delivering  of  the  said  supposed  writing  obligatory  to  the  said  Edward  Collins, 
or  at  the  time  of  his  acceptance  of  the  said  supposed  writing  obligatory,  in 
anywise  indebted  to  the  said  Edward  Collins  or  to  the  said  John  Rudge  in 
any  sum  of  money,  or  in  any  other  respect  whatsoever :  and  so  the  said 
Robert  Blantern  saith,  that  the  said  supposed  writing  obligatory  so  made 
and  given  by  them  the  said  Robert  Blantern,  John  Walker,  and  Thomas 
Walker,  for  the  cause  aforesaid,  is  void  in  lata,  and  this  he  is  ready  to  verify; 
wherefore  he  prays  judgment  if  the  said  Edward  Collins  ought  to  have  his 
aforesaid  action  thereof  against  him,  &c.  And  for  further  plea  in  this 
behalf,  the  said  Robert  Blantern  by  like  leave  of  the  court  here  for  this 
purpose  first  had  and  obtained,  according  to  the  form  of  the  statute  in  such 
case  made  and  provided,  says,  that  the  said  Edward  ought  not  to  have  his 
aforesaid  action  thereof  against  him,  because  he  says  that  the  said  supposed 
r*l  'SQI  ^'''t'"g  obligatory  was  given  by  the  said  Robert  Blantern,  *Johii 
L  -I  Walker,  and  Thomas  Walker,  to  the  said  Edward,  to  wit,  at  Roden- 
hurst  aforesaid,  to  indemnify  the  said  Edward  against  a  certain  note  in 
writing  of  the  said  Edward's,  commonly  called  a  promissory  note,  then,  to 
wit,  on  the  said  sixth  day  of  April  in  the  year  1765  aforesaid,  to  wit,  at 
Rodenhurst  aforesaid,  given  by  the  said  Edward  Collins  to  the  said  John 
Rudge,  as  for  value  received,  bearing  date  on  a  certain  day  and  in  a  certain 
year  now  past,  to  wit,  on  the  day. and  year  last  aforesaid,  whereby  the  said 
Edward  promised  to  pay  to  the  said  John  Rudge  a  certain  sum  of  money, 
to  toit,  the  sum  of  three  hundred  and  fifty  pounds,  as  for  value  received,  at 
a  certain  time  thereafter,  to  wit,  one  month  after  the  date  of  the  said  note, 
which  said  note  still  remains  unpaid,  and  that  the  said  Edward  Collins  hath 
not  been  in  anywise  damnified  by  means  of  the  said  note,  or  of  the  giving 


COLLINS    V.    RLANTERN.  417 

of  the  same ;  and  this  the  said  llobcrt  Blantern  is  ready  to  verify ;  where- 
fore he  prays  judgment  if  the  said  Edward  ought  to  have  his  aforesaid  action 
thereof  against  him,  &c. 

John  Glynn. 

And  the  said  Edward  Collins,  as  to  the  said  plea  of  the  said  Robert  by 

him  first  above  pleaded  in  bar,  and  whereof  he  hath  put  himself  upon  the 

country,  says,  that  he  the  said  Edward  doth  the  same  likewise;  and  the 

said  Edward,  as  to  the  said  plea  of  the  said  Robert  by  him  secondly  above 

pleaded  in  bar,  says  that  he,  by  reason  of  anything  by  the  said  Robert  above 

in  that  plea  alleged,  ought  not  to  be  barred  from  having  and  maintaining 

his  said  action  against  the  said  Robert,  because  he  says  that  the  same  plea, 

in  manner  and  form  as  the  same  is  above  pleaded,  and  the  matters  therein 

contained,  are  not  suflEicient  in  law  to  bar  the  said  Edward  from  having  his 

said  action  against  the  said  Robert,  to  which  said  plea,  in  manner  and  form 

above  pleaded,  the  said  Edward  Collins  hath  no  need,  nor  is  he  bound  by 

the  law  of  the  land  in  any  manner  to  answer ;  and  this  he  is  ready  to 

verify :  wherefore  for'want  of  a  sufficient  plea  in  this  behalf,  the  said  Edward 

Collins  prays  judgment  and  his  debt  afox*esaid,  together  with  his  damages, 

by  occasion  of  the  detaining  that  debt,  to  be  adjudged  to  him,  &c. ;  and  the 

said  Edward  Collins,  as  to  the  said  plea  of  the  said  Robert  by  him  lastly 

above  pleaded  in  bar  says,  that  he  by  reason  of  anything,  by  the  j-^-ipr.-, 

said  Robert,  above  *in  that  plea  alleged,  ought  not  to  be  barred  from  L         J 

having  and  maintaining  his  said  action  against  the  said  Robert,  because  he 

says  that  the  same  plea,  in  manner  and  form  as  the  same  is  above  pleaded,  and 

the  matters  therein  contained,  are  not  sufficient  in  law  to  bar  the  said  Edward 

from  having  his  said  action  against  the  said  Robert,  to  which  said  plea,  in 

manner  and  form  above  pleaded,  the  said  Edward  Collins  hath  no  need,  nor 

is  he  bound  by  the  law  of  the  land  in  any  manner  to  answer;  and  this  he 

is  ready  to  verify ;  wherefore  for  want  of  a  sufficient  plea  in  this  behalf,  the 

said  Edward  Collins  prays  judgment,  and  his  debt  aforesaid,  together  with 

his  damages,  by  occasion  of  the  detaining  that  debt,  to  be  adjudged  to  him, 

&c. 

Gr.  NaeEsI 
a 

And  the  said  Robert  saith,  that  the  said  plea  by  him  the  said  Robert 
secondly  above  pleaded  in  bar,  in  manner  and  form  as  the  same  is  above 
pleaded,  and  the  matters  therein  contained,  are  sufficient  in  law  to  bar  the 
said  Edward  from  having  his  said  action  against  the  said  Robert,  which  said 
plea,  and  the  matters  therein  contained,  he  the  said  Robert  is  ready  to  verify 
and  prove,  as  the  said  court  shall  award;  and  because  the  said  Edward  hath 
not  in  any  manner  answered  thereto,  nor  in  any  wise  denied  the  same,  he 
the  said  Robert  prays  judgment,  and  that  the  said  Edward  may  be  barred 
from  having  his  said  action  thereof  against  him  the  said  Robert,  &c.,  and 
because  the  justices  here  will  advise  of  and  upon  the  premises  before  that 
they  give  judgment  thereupon,  day  is  given  to  the  parties  aforesaid  here 

until to  hear  their  judgment  thereupon,  so  that  the  said  justices 

here  are  not  yet  ready  to  give  judgment  thereon;  and  the  said  Robert  fur- 
ther saith,  that  the  said  plea  by  him  the  said  Robert  lastly  above  pleaded  in 
bar  in  manner  and  form  as  the  same  is  above  pleaded,  and  the  matters 

Vol.  l— 27 


418  smith's   leading   cases. 

therein  containctl,  are  sufficient  in  law  to  bar  the  said  Edward  from  having 
his  said  action  against  him  the  said  Robert,  which  said  plea,  and  the  matters 
therein  contained,  he  the  said  Ilobert  is  ready  to  verify  and  prove,  as  the 
court  shall  award :  and  because  the  said  Edward  halh  not  in  any  manner 
answered  thereto,  nor  in  any  wise  denied  the  same,  he  the  said  Ilobert  prays 
judgment,  and  that  the  said  Edward  may  be  barred  from  having  his  said 
action  thereof  against  him  the  said  Ilobert,  &c. 

JouN  Glynn. 

r»1Rn  *And  because  the  justices  here  advise  of  and  upon  the  premises 
L         J  before  that  they  give  judgment  thereupon,  day  is  given  to  the  parties 

aforesaid  here  until to  hear  their  judgment  thereupon,  for  that 

the  said  justices  here  are  not  as  yet  ready  to  give  judgment  thereon ;  and  in 
order  to  try  the  issue  between  the  parties  aforesaid  above  joined  to  be  tried 
by  the  country,  the  sheriff  is  commanded  that  he  cause  to  come  here  in 
eight  days  of  the  purification  of  the  blessed  Mary,  twelve,  &c.,  by  whom, 
&c.,  and  who  neither,  &c.,  to  recognise,  &c.,  because  as  well,  &c. 

COLLINS    V.    BLANTERN. 

This  case  was  well  argued  last  Hilary  term  by  Serjeant  Nares  for  the 
plaintiff  and  Serjeant  Glynn  for  the  defendant,  and  in  this  term  by  Serjeant 
Burland  for  the  plaintiff",  and  Serjeant  Jephson  for  the  defendant. 

On  the  side  of  the  plaintiff"  it  was  insisted  that  the  condition  of  the  bond 
being  singly  for  the  payment  of  a  sum  of  money,  the  bond  is  good  and  law- 
ful ;  and  that  no  averment  shall  be  admitted  that  the  bond  was  given  upon 
an  unlawful  consideration  not  appearing  upon  the  face  of  it,  and  therefore 
that  the  special  plea  is  bad;  upon  the  first  argument  these  cases  were  cited 
for  the  plaintiff",  Garth.  252;  Comb.  121,  Thomson  v.  Harvey;  Lady  Down- 
ing V.  Chapman, f  C.  B.,  Mich.  6  Geo.  2  (now  depending  in  error  in  B.  R.); 
1  Leon.  73,  203  ;  Jenk.  106  ;  Garth.  300 ;  Comb.  245 ;  Empson  v.  Bathurst, 
1  Mod.  35;  Hutton,  52;  Vent.  331;  Cro.  Jac;  248. 

For  the  defendant  it  was  insisted,  that  the  averment  of  the  wicked  and 
unlawful  consideration  of  giving  the  bond,  might  well  be  pleaded,  although 
it  doth  not  appear  upon  the  face  of  the  deed  ;  and  that  anything  which  shows 
an  obligation  to  be  void,  may  well  be  averred,  although  it  doth  not  appear 
on  the  face  of  the  bond,  as  duress :  that  it  was  delivered  as  an  escrow  to  be 
delivered  upon  a  certain  condition  to  the  obligee ;  ivfancy,  coverture,  or 
upon  a  simoniacal  contract,  maintenance,  &c. ;  and  although  it  is  said  there 
is  a  difference  between  bonds  being  void  at  common  law,  and  by  statute,  yet 
it  is  otherwise,  for  the  common  law  was  originally  by  statutes  which  are  not 
now  in  being;  the  general  rule  that  you  cannot  plead  any  matter  dehors  the 
r*1  C9~\  ^'^^^1  ^^^^  ^^^  ^PP^y  to  this  case ;  the  true  meaning  of  that  rule  is, 
L  J  *that  you  cannot  allege  anything  inconsistent  with  and  contrary  to 
the  deed,  but  you  may  allege  matter  consistent  with  the  deed ;  the  bond  in 
the  present  case  is  for  the  payment  of  money.  The  plea  admits  this,  and 
the  averment  alleges  upon  what  consideration  that  money  was  to  be  paid, 
and  therefore  is  not  inconsistent  or  contradictory  to  the  condition  of  the 
bond;  this  rule  of  pleading,  applied  to  the  cases  of  simony,  duress,  cover- 

t  Tills  case  will  be  found  reported  9  East,  414,  in  nota.. 


COLLINS     V.     RLANTERN.  419 

ttire^  xnfannj,  cC'c,  is  on  the  side  of  the  defendant  in  tliis  case.  In  bonds 
not  to  follow  a  trade  the  defendant  may  aver  the  consideration  to  avoid  the 
bond.  Downing  v.  Chapman  is  not  like  this  case,  that  was  an  averment 
contradictory  to  the  condition  of  the  bond,  and  amounted  to  a  defeasance, 
the  present  condition  is  consistent  with  the  condition,  which  is  for  payment 
of  money,  and  only  shows  the  bad  consideration  upon  which  the  money  was 
to  be  paid. 

Upon  the  first  argument  the  Lord  Chief  Justice  broke  the  case,  and  said 
that  this  was  very  different  from  the  case  of  Lady  Downing  v.  Chapman,  and 
therefore  he  would  consider  it  wholly  independent  thereof;  and  said,  as  he 
was  then  advised,  he  thought  there  was  no  difference  between  an  act  being 
void  by  statute  or  the  common  law,  that  the  principle  the  judges  heretofore 
have  gone  upon  for  making  the  distinctions  (in  the  books)  is  not  a  sound 
one  ;  for  wherever  the  bond  is  void  at  law  or  by  statute,  you  may  show  how 
it  is  void  by  plea,  and  that  in  truth  it  never  had  any  legal  existence.  That 
the  statute  law  is  the  will  of  the  legislature  in  writing ;  the  common  law  is 
nothing  else  but  statutes  worn  out  by  time ;  all  our  law  began  by  consent 
of  the  legislature,  and  whether  it  is  now  law  by  usage  or  writing,  it  is  the 
same  thing;  a  statute  says  such  a  thing  shall  be  avoided  by  plea,  why  there- 
fore may  not  a  deed  executed  upon  a  consideration  against  the  common  law 
be  avoided  by  plea  ?  In  dm-ess,  simony,  in fanci/,  coverture,  &c.  ih.Q  plea 
discloses  that  in  truth  there  never  was  any  obligation.  The  principle,  upon 
which  courts  of  justice  must  go,  is,  to  enforce  the  performance  of  contracts 
not  injurious  to  society;  and  it  would  be  absurd  to  say  that  a  court  of  jus- 
tice shall  be  bound  to  enforce  contracts  injurious  to,  and  against  the  public 
good.  No  man  shall  come  into  a  court  and  say,  <'  Give  me  a  sum  of  money 
which  I  desire  to  have  contrary  to  law ;"  there  can  be  no  doubt  but  that 
the  compounding  *a  prosecution  for  wilful  and  corrupt  perjury  is  a  rj^-ipo-. 
very  great  offence  to  the  public,  and  whether  it  was  between  some  •-  '  -■ 
persons  who  are  strangers  to  this  action,  it  is  not  material. 

Bathurst,  Justice,  (upon  breaking  this  case,)  said,  that  the  case  of  Lady 
Downing  v.  Chapman  was  not  like  \i.'\ 

Gould,  Justice,  (upon  the  breaking  this  case,)  said,  that  he  differed  with 
the  rest  of  the  court  in  the  judgment  given  in  Lady  Downing  v.  Chapman, 
and  that  upon  the  whole  of  that  case  he  thought  the  averment  that  the  bond 
there  given  was  upon  a  wicked  consideration,  ought  to  have  been  admitted ; 
he  said  that  if  this  case  at  bar  had  been  upon  a  simple  contract,  the  court 
would  not  have  hesitated  a  moment,  but  would  have  given  judgment  that  it 
was  bad;  and  shall  the  court  sanctify  a  deed  made  upon  a  wicked  consider- 
ation because  it  is  sealed  ?  To  have  a  deed  which  ought  to  be  for  a  man's 
good  turned  to  evil  purposes,  he  thought  very  wrong,  and  that  there  was  no 
distinction,  whether  a  deed  be  void  at  law  or  by  statute. 

Upon  the  second  argument  of  the  case  at  bar  in  this  term,  the  Lord  Cliief 
Justice  delivered  the  opinion  of  the  whole  court  (and  pronounced  judgment 
for  the  defendant)  to  the  following  effect. 

Lord  Chief  Justice  WUmot:  Four  questions  are  to  be  considered  : 

1st.  Whether  it  doth  not  appear  from  the  facts  alleged  in  the  second  plea, 
that  the  consideration  for  giving  the  bond  is  an  illegal  consideration  ? 

t  Dr.  &  Stud.  12.     2  Vent.  107.     Godh.  29. 


420  smith's   leading  cases. 

2nd.  AVhctlicr  a  bond  given  for  an  illegal  consideration  is  not  clearlj  void 
at  common  law  ab  initio? 

3rd.  Supposing  the  bond  is  void,  whether  the  facts  disclosed  in  the  pica 
to  show  it  void,  can  by  law  be  averred  and  specially  pleaded  ? 

4ih.  If  they  can  be  pleaded  :  then  whether  this  second  plea  is  duly,  aptly, 
and  properly  pleaded  ? 

1.  As  to  the  first  question,  it  hath  been  insisted  for  the  plaintiff  that  he 
was  not  privy  to  the  bargain  and  agreement,  so,  as  to  him  there  appears  to 
be  nothing  illegal  done  by  him.  But  we  are  all  clearly  of  opinion,  that  the 
whole  of  the  transaction  is  to  be  considered  as  one  entire  agreement ;  for 
the  bond  and  note  are  both  dated  upon  the  same  day,  for  payment  of  the 
same  sum  of  money  on  the  same  day ;  the  manner  of  the  transaction  was  to 
r*iril  ^^^^  °^*^^  *and  conceal  the  truth;  and  whenever  courts  of  law  see 
L  -■  such  attempts  made  to  conceal  such  wicked  deeds,  they  will  brush 
away  the  cobweb  varnish,  and  show  the  transactions  in  their  true  light. 
This  is  an  agreement  to  stifle  a  prosecution  for  wilful  and  corrupt  perjury, 
a  crime  most  detrimental  to  the  commonwealth ',  for  it  is  the  duty  of  every 
man  to  prosecute,  appear  against,  and  bring  oflfenders  of  this  sort  to  justice. 
Many  felonies  are  not  so  enormous  offences  as  perjury,  and  therefore  to  stifle 
a  prosecution  for  perjury  seems  to  be  a  greater  offence  than  compounding 
some  felonies.  The  promissory  note  was  certainly  void;  what  right  then 
hath  the  plaintiff  to  recover  upon  this  bond,  which  was  given  to  indemnify 
him  from  a  note  that  was  void  ?  They  are  both  bad,  the  consideration  for 
giving  them  being  wicked  and  unlawful. 

2.  As  to  the  second  point,  we  are  all  of  opinion  that  the  bond  is  void  ab 
initio,  by  the  common  law,  by  the  civil  law,  moral  law,  and  all  laws  what- 
ever; and  it  is  so  held  by  all  writers  whatsoever  upon  this  subject,  except 
in  one  passage  in  Grotius,  lib.  2,  cap.  11,  sect.  9,  where  I  think  he  is  greatly 
mistaken,  and  differs  from  Puffendorf,  lib.  3,  cap.  8,  sect.  8,  who,  in  my 
opinion,  convicts  the  doctrine  of  Grotius.  In  Justin.  Instit.  lib.  3,  tit.  20, 
(Je  hirpi  causa,  sect.  23.  Quod  turpi  ex  causa promissum  est,  veluti  si  quis 
homicid'mm  vel  sacrilegium  se  factimim  piromittat,  non  valet.  And  Vin- 
nius,  in  his  commentary,  carries  it  so  far  as  to  say,  you  shall  not  stipulate 
or  promise  to  pay  money  to  a  man  not  to  do  a  crime.  Si  quis  piecuniam, 
promiserit,  ne  furtuni  aut  ccedeni  faceret,  aut  suh  conditione,  si  non  fecerit, 
adhiic  dicendum  stip)ulationem  mdlius  esse  momeiiti  ;  cum  hoc  ipsum  flagi~ 
tiosum  est,  pecuniam  pacisci  quo  flagitio  abstineas.  Dig.  lib.  1,  tit.  5. 
Code,  lib.  4,  tit.  7,  to  the  same  point. 

This  is  a  contract  to  tempt  a  man  to  transgress  the  law,  to  do  that  which 
is  injurious  to  the  community  :  it  is  void  by  the  common  law ;  and  the  rea- 
son why  the  common  law  says  such  contracts  are  void,  is  for  the  public  good. 
You  shall  not  stipulate  for  iniquity.  All  writers  upon  our  law  agree  in  this, 
no  polluted  hand  shall  touch  the  pure  fountains  of  justice.  Whoever  is  a 
party  to  an  unlawful  contract,  if  he  hath  once  paid  the  money  stipulated  to 
be  paid  in  pursuance  thereof,  he  shall  not  have  the  help  of  a  court  to  fetch 
r*ir'l  '^^  l^^ck  again,  you  shall  not  have  a  right  of  action  *when  you  come 
L  -I  into  a  court  of  justice  in  this  unclean  manner  to  recover  it  back. 
Procxd  01  procul  este  pro/ant.     See  Doct.  &  Stud.  fo.  12,  and  chap.  24. 

8.  The  third  point  is,  Whether  this  matter  can  be  pleaded  ?  It  is  objected 
gainst  tho  do  fendaut  that  he  has  no  jemedy  at  law,  but  must  go  and  seek 


COLLINS     v.     BLANTERN. 


421 


it  in  a  court  of  equity :  I  answer,  we  arc  upon  a  mere  point  of  common  law, 
which  must  have  been  a  question  of  law  long  before  courts  of  equity  exer- 
cised that  jurisdiction  which  we  now  see  them  exercise ;  a  jurisdiction  which 
never  would  have  swelled  to  that  enormous  bulk  we  now  see,  if  the  judges 
of  the  courts  of  common  law  had  been  anciently  as  liberal  as  they  had  been 
in  later  times :  to  send  the  defendant  in  this  case  into  a  court  of  equity,  is 
to  say  there  never  was  any  remedy  at  law  against  such  a  wicked  contract  as 
this  is :  we  all  know  when  the  equity  part  of  the  Court  of  Chancery  began. 
I  should  have  been  extremely  sorry  if  this  case  had  been  without  remedy 
at  common  law.  Est  honi  judicis  ampUare  jxirisdictionem  :  and  I  say,  est 
honi  judicis  ampliare  justitlam ;  therefore,  whenever  such  cases  as  this 
come  before  a  court  of  law,  it  is  for  the  public  good  that  the  common  law 
should  reach  them  and  give  relief.  I  have  always  thought  that  formerly 
there  was  too  confined  a  way  of  thinking  in  the  judges  of  the  common  law 
courts,  and  that  courts  of  equity  have  risen  by  the  judges  not  properly 
applying  the  principles  of  the  common  law,  but  being  too  narrowly  governed 
by  old  cases  and  maxims,  which  have  too  much  prevented  the  public  from 
having  the  benefit  of  the  common  law.  It  is  now  objected  as  a  maxim,  that 
the  law  will  not  endurea  fact  inptais  dehors  a  specialty  to  be  averred  against 
it,  and  that  a  deed  cannot  be  defeated  by  any  thing  less  than  a  deed,  and  a 
record  by  a  record,  and  that  if  there  be  no  consideration  for  a  bond  it  is  a 
gift.  I  answer,  that  the  present  condition  is  for  the  payment  of  a  sum  of 
money,  but  that  payment  to  bo  made  was  grounded  upon  a  vicious  con- 
sideration, which  is  not  inconsistent  with  the  condition  of  the  bond,  but 
strikes  at  the  contract  itself  in  such  a  manner  as  shews,  that,  in  truth,  the 
bond  never  had  any  legal  entity,  and  if  it  never  had  any  being  at  all,  then 
the  rule  or  maxim  that  a  deed  must  be  defeated  by  a  deed  of  equal  strength 
doth  not  apply  to  this  case.  The  law  will  legitimate  the  showing  it  void  ah 
initio,  and  this  *can  only  be  done  by  pleading.  Nothing  is  due  ^^^„^-. 
under  such  a  contract,  then  the  law  gives  no  action,  the  debitum  L  J 
never  existed;  as  much  as  if  it  had  been  said  it  shall  be  void  because  there 
is  no  debt ;  but  if  this  wicked  contract  be  not  pleadable,  it  will  be  good  at  law, 
be  sanctified  thereby,  and  have  the  same  legal  operation  as  a  good  and  an 
honest  contract,  which  seems  to  be  most  unreasonable  and  unrighteous,  and 
therefore,  unless  I  am  chained  down  by  law  to  reject  this  plea,  I  will  admit 
it,  and  let  justice  take  place.  What  strange  absurdity  would  it  be  for  the 
law  to  say  that  this  contract  is  wicked  and  void,  and  in  the  same  breath  for 
the  law  to  say.  You  shall  not  be  permitted  to  plead  the  facts  which  clearly 
shew  it  to  be  wicked  and  void  !  I  am  not  for  stirring  a  single  pebble  of  the 
common  law ;  and  without  altering  the  least  tittle  thereof,  I  think  it  is  com- 
petent, and  reaches  the  case  before  us.  For  my  own  part,  I  think  all  the 
cases  upon  acts  of  parliament,  with  respect  to  making  bonds,  &c.,  void,  do 
warrant  the  receiving  this  plea  and  averment ;  there  is  no  direction  in  Such 
act.s  of  parliament  given  for  the  form  and  manner  of  pleading  in  those  cases; 
the  end  directs  and  sanctifies  the  means;  I  think  there  is  no  dilFerence 
between  things  made  void  by  act  of  parliament,  and  things  void  by  the 
common  law :  statute  law  and  common  law  both  originally  flowed  from  the 
same  fountain,  the  legislature  :  I  am  not  for  giving  any  preference  to  cither, 
but  if  to  either,  I  should  be  for  giving  it  to  the  common  law.  If  there  had 
ever  been  any  idea  or  imagination,  that- such  a  contract  as  this  could  have 


422  smith's    leading   cases. 

stood  good  at  common  law,  surely  the  legislature  would  have  altered  it. 
There  has  been  a  distinction  mentioned  between  a  bond  being  void  by  statute, 
and  at  common  law;  and  it  is  said,  that  in  the  first  case  if  it  be  bad,  or  void 
in  any  part,  it  is  void  in  toto;  but  that  at  common  law  it  may  be  void  in 
part,  and  good  in  part,f  but  this  proves  nothing  in  the  present  case. 
The  judges  formerly  thought  an  act  of  parliament  might  be  eluded  if  they 
did  not  make  the  whole  void,  if  part  was  void.  It  is  said,  the  statute  is 
like  a  tyrant,  where  he  comes  he  makes  all  void,  but  the  common  law 
is  like  a  nursing  father,  makes  only  void  that  part  where  the  fault  is, 
and  preserves  the  rest.|  1  Mod.  35,  36.  The  case  of  a  simoniacal  contract 
may  be  reached  by  a  plea;  this  proves  the  contract  in  the  present  case  is  to 
r*lP71  *^^  avoided  at  common  law.  The  two  cases  in  Leon.  I  set  one 
L  -"  against  the  other,  and  lay  no  stress  upon  either;  infancy,  coverture, 
duress,  c&c,  apply  directly  to  this  case;  the  plea  shews  a  fact,  which,  if 
true,  the  bond  never  had  any  legal  existence  at  all :  as  to  a  bond  being  a 
gift,  that  is  to  be  repelled  by  shewing  it  was  given  upon  a  bad  considera- 
tion ;  you  may  thereby  repel  the  presumption  of  donation.  It  has  been 
objected,  that  the  admission  of  such  plea  as  the  present  will  strike  at  secu- 
rities by  deed;  the  answer  is,  that  such  a  plea  in  the  case  of  infancy, 
gaming,  duress,  d'c,  ^^c.,  is  admissible;  w'hat  is  the  plea  of  non  est  factum':' 
ninety-nine  in  one  hundred  of  them  are  false  ;  why  then  is  such  a  plea  to  be 
received,  and  not  the  present  plea?  I  see  no  reason  why.  I  want  no  case 
to  warrant  my  opinion,  it  is  enough  for  me  if  there  be  no  case  against  me, 
and  I  think  there  is  not.  In  1  Hen  7,  14,  16,  b,  Brian  was  then  the  Chief 
Justice,  and  his  opinion  there  is  founded  upon  what  I  have  now  said  :  Brian 
says,  "  I  do  not  see  in  any  case  in  the  world  how  a  man  can  avoid  a  spe- 
cialty by  a  bare  matter  of  fact  concerning  the  same  deed,  if  so  he  that  the 
deed  vjas  good  at  the  commencement ;"^  but  the  present  deed  was  never 
good.  Moor,  564,  is  a  simoniacal  contract  pleaded  to  a  bond,  which  was 
held  a  bad  plea,  because  simony  was  not  then  considered  as  contrary  to  our 
law,  but  at  this  day,  simony  being  against  our  law,  such  a  plea  would  be 
good.  The  case  in  Comb.  121,  is  nothing  but  an  obiter  dictum  of  a  judge, 
to  which  I  pay  very  little  regard, 

4.  As  to  the  fourth  point,  I  think,  the  plea  is  rightly  pleaded,  and  con- 
eludes  very  properly  in  saying,  "  And  so  the  said  bond  is  void."  It  seema 
to  me  that  non  est  factum  could  not  have  been  properly  said  at  the  conclu- 
sion of  this  plea  after  the  special  matter  before  alleged;  non  est  factum 
means  nothing  but  that,  "I  did  not  seal  and  deliver  the  bond;"  and  why 
non  est  factum  may  be  pleaded  by  a  feme  covert  I  do  not  clearly  see  the 
reason,  unless  the  law  unites  the  husband  and  wife  so  closely,  that  it  con- 
siders them  as  one  and  the  same  person,  so  that  she  without  the  husband 
cannot  execute  the  deed.  If  two  be  jointly  bound,  and  only  one  sued,  ho 
cannot  plead  non  est  factum,  but  ought  to  plead  that  another  was  bound 
with  him.  5  Rep.  119,  a.  b.  It  is  fair  to  tell  the  party  what  is  your 
r*ir81  ^^^^^^^'  upon  what  *point  you  put  your  case:  I  think  the  right 
L  -'  way  is  to  conclude  the  plea  as  it  is.  And  so  the  said  writing  obliga- 
tory is  void,  et  hoc,  &c.,  and  so  pray  judgment  if  the  plaintiff  ought  to 
have  his  action,  &c.,  and  do  not  see  how  he  could  say  non  est  factum,  when 

t  See  post,  in  notis,  p.  160.  \\  Lev.  209.     Hard.  464. 

§  Cr.  Eliz.  6-:23,  61>7.     Jenk.  108.     Moor,  564. 


COLLINS    V.     BLANTERN. 


4£3 


he  sealed;  but  suppo^ng  the  plea  might  have  been  more  aptly  concluded, 
3'-et  it  is  well  enough  upon  a  general  demurrer,  as  this  is,f  and  we  ai-e  all 
of  opinion  that  judgment  may  be  for  the  defendant;  that  the  averment 
pleaded  is  not  contradictory,  but  explanatory  of  the  condition ;  that  the 
bond  was  void  oh  initio,  and  never  had  any  existence.  Judgment  for  the 
defendant  pe?*  totam  curiam. 


The  principle  established  in  Collins  v, 
Biantern,  viz.  that  illegality  may  be  plead- 
ed as  a  defence  to  an  action  on  a  deed,  has 
been  so  often  recognised,  and  is  so  well 
settled  as  law,  that  it  would  be  useless 
to  enter  upon  any  long  discussion  re- 
specting it.  "  Since  the  case  of  Pole  v. 
Harrobin.  E.  22  G.  3,  B.  R.,  reported  9 
East,  416,  n.,  it  has  been  generally  un- 
derstood that  an  obligor  is  not  restrained 
from  pleading  any  matter  which  shews 
that  the  bond  was  given  upon  an  illegal 
consideration,  lohether  consistent  or  not 
loilh  the  condition  of  the  bondy  Per 
Lord  Ellenborough,  L.  C.  J.,  Paxton  v. 
Popham,  9  East,  421,  2.  This,  it  will 
be  remarked,  carries  the  doctrine  a  step 
further  than  Collins  v.  Blantern,  where 
the  illegality  averred  in  the  plea  was 
consistent  with  the  condition.  So  too, 
a  covenant  that  lands  on  which  an  an- 
nuity was  secured  were  worth  more  than 
the  annuity,  does  not  estop  grantor  from 
shewing  the  reverse.  Doe  d.  Chandler 
v.  Ford,  3  A.  &  E.  654.  See  further 
Prole  v.  Wiggins,  3  Bing.  N.  C.  230. 
In  Paxton  v.  Popham,  the  condition  of 
the  bond  on  which  the  action  was 
brought  stated  that  the  defendants  had 
borrowed  of  the  plaintiff  a  sum  of  money, 
which  was  to  run  at  respondentia  inter- 
est on  tiie  security  of  certain  goods 
shipped  from  Calcutta  to  Ostend,  for  the 
repayment  of  which  on  the  arrival  of 
the  ship  the  bond  was  conditioned. 
Plea,  that  the  bond  was  given  to  cover 
the  price  of  goods  sold  by  the  plaintiffs 
r*lfi^  1  ^^  *defendants  tor  the  purpose 
L  1    of  an  illegal    traffic   from  the 

East  Indies,  and  that  the  plaintiffs 
knowingly  assisted  in  preparing  the 
goods  for  carriage  upon  such  illegal 
v(yage.  On  demurrer  the  court  gave 
judgment  for  the  defendants.  Accord. 
Greville  v.  Atkins,  9  B.  &  C.  462.  But 
the  illegality  must  be  made  to  appear 
clearly  and  witii  certainty  upon  the  face 


of  the  plea.  Hill  v.  Manchester  and  Sal- 
ford  Waterworks  Company,  2  B.  &  Ad. 
552.  [Mittleholzer  V.  Fullarton,  6  Q. 
B.  989;  Smith  V.  Mawhood,  14  M.  & 
W.  452;  Simpson  v.  Lord  Howden,  9 
CI.  &  Fin.  61 ;  Jones  v.  Waite,  9  CI.  & 
Fin.  88.]  Thus,  if  the  statute  of  9 
Anne,  cap.  14,  against  gaming,  be 
pleaded  to  a  bond,  the  plea  must  shew 
at  what  game  the  money  was  lost.  Col- 
borne  V.  Stockdale,  1  Str.  493. 

With  respect  to  the  different  species 
of  illegality  pleadable  to  an  action  on  a 
bond,  it  is  impossible  to  do  more  than 
particularise  a  few  of  those  which  have 
actually  come  under  discussion  in  re- 
ported cases.  They  may  be  divided  into 
two  classes,  viz.,  1.  Where  the  illegality 
exists  at  common  law;  and  2.  Where  it 
is  occasioned  by  the  enactments  of  some 
statute.  Under  the  first  class  are  com- 
prehended Bonds  the  conditions  of  which 
militate  against  public  policy:  such,  for 
instance,  as  bonds  in  general  restraint 
of  trade:  the  leading  case  on  which  sub- 
ject, Mitchel  v.  Reynolds,  will  be  found 
in  this  collection.  See  also  Coppock  v. 
Bower,  4  M.  &  W.  361,  where  an  agree- 
ment to  withdraw  an  election  petition, 
in  consideration  of  money,  was  held  void. 
[As  was  also  in  Kirwan  v.  Goodman,  9 
Dowl.  330,  a  warrant  of  attorney  given 
by  an  attorney  to  induce  a  party  to  for- 
bear proceeding  against  him  on  a  penal 
rule;  see  Exp.  Critchley,  3  Dowl.  &  L. 
527;  Ward  v.  Lloyd,  6  Man.  &  Gr.  85; 
7  Scott,  N.  R.  499,  S.  C.  In  Kerr  v. 
Leeman,  6  Q.  B.  308,  it  is  laid  down 
that  a  prosecution  merely  for  an  offence 
which  might  be  made  the  subject  of  a 
civil  action,  for  instance  a  common  as- 
sault, may  legally  be  compromised;  but 
that  if  the  offence  be  in  the  whole  or  in 
part  of  a  public  nature,  no  agrtiernent  to 
stifle  a  prosecution  tor  it  can  be  valid; 
as,  for  instance,  it'  the  prosecution  be  for 
an  assault  and  riot.     And  a  promissory 


t  By  Si.  4  Anne,  c.  16. 


I 


424 


SMITHS     LEADING     CASES. 


note  given  as  an  inducement  to  forbear 
such  a  prosecution,  e.  g.,  for  cheating  at 
cards,  would  be  ordered  by  a  court  of 
equity  to  be  given  up;  Osbaldiston  v. 
Simpson,  13  Sim.  513.  In  order,  how- 
ever, to  invalidate  a  contract  on  such 
grounds,  the  intention  to  interfere  with 
the  course  of  public  justice  must  dis- 
tinctly appear;  Ward  v.  Lloyd,  supra. 
In  Simpson  v.  Lord  Howden,  10  Ad.  & 
El.  793;  9  Clk.  &  Pin.  61,  an  agree- 
ment between  shareholders  of  a  proposed 
Railway  Company  and  a  peer,  that  he 
should  withdraw  all  opposition  and  give 
his  assent  to  the  line,  and  that  they 
r*1fiR7  1  ^'I'^'^^'l  endeavour  to  alter  the 
*-  ■'  *course  of  the  line,  and  if  the 

bill  were  passed  in  the  then  session, 
should  in  six  months  after  it  received 
the  royal  assent,  pay  him  5000Z.  as 
compensation  for  the  damage  which  his 
property  would  sustain,  was  holden 
valid;  it  not  being  shewn  that  the  mo- 
ney was  promised  as  a  consideration  for 
the  peer's  vote  being  given  or  withheld, 
or  that  the  parties  to  the  agreement  in- 
tended to  conceal  it  from  other  land- 
holders on  the  line,  or  from  the  legisla- 
ture, or  that  any  fraud  was  committed 
or  intended  to  be  committed  on  any 
body.]  A  deed  made  in  consideration 
of  a  future  separation  between  husband 
and  wife  is  void,  Hindley  v.  M.  of  West- 
meath,  6  B.  &  C.  200 ;  [Cocksedge  v. 
Cocksedge,  14  Sim.  244,]  though  it 
may  be  otherwise  where  the  considera- 
tion is  an  immediate  one.  Jee  v.  Thur- 
low,  2  B.  &  C.  541.]  In  Jones  v.  Wate, 
6  B.  N.  C.  341,  the  Court  of  Exchequer 
Chamber  agreed  that  a  husband  cannot 
legally  sell  his  consent  to  a  separation, 
though  there  was  a  difference  of  opinion 
on  the  question,  Whether  the  facts  stated 
upon  that  record  amounted  to  such  a 
sale.  [But  where  separation  is  inevita- 
ble, a  contract  settling  the  terms  on 
which  it  is  to  take  place  is  lawful, 
Wilson  V.  Muskett.  3  B.  &  Ad.  743 ; 
Jones  v.  Waite,  9  CI.  &  Fin.  88;  Papps 
V.  Webster,  Cam.  Scac.  14S ;  and  spe- 
cific performance  of  such  a  contract  may 
be  decreed  though  there  be  no  covenant 
by  the  trustees  to  indemnify  the  husband 
against  the  wife's  debts,  Frampton  v. 
Frampton,4  Boa  v.  287;  Clough  v.  Lam- 
bert, 10  Sim.  174;  Jodreil  v.  Jodrell,  9 
Beav.  45;  Wilson  v.  Wilson,  14  Sim. 
405,  where  part  of  the  consideration  was 
to  put  an  end  to  a  suit  for  nullity  of  mar- 
riage on  the  ground  of  impoteiicy  of  the 
husband  ;  and  the  Vice-Chancellor  Sir 


Lancelot  Shadwcll  decreed  a  specific 
performance,  and  restrained  the  husband 
by  injunction  from  compelling  the  wife 
to  proceed  with  the  suit  in  the  Ecclesi- 
astical Court,  though  it  was  suggested 
that  by  the  practice  of  that  court  no  res- 
titution of  conjugal  rights  could  be  ob- 
tained pending  the  suit  for  nullity  ex- 
cept by  a  proceeding  in  that  suit.  And, 
upon  appeal  to  the  House  of  Lords,  not- 
withstanding an  attack  of  the  most  ge- 
neral character  and  conducted  with  con- 
summate ability  upon  the  policy  of  sepa- 
ration deeds,  the  decree  of  the  Vice- 
Chancellor  was  affirmed,  and  the  law  it 
is  to  be  hoped  at  length  finally  settled, 
1  House  of  Lords'  Cases,  533.]  Bonds 
given  on  an  immoral  consideration,  ex. 
gr.  to  induce  the  obligee  to  live  with 
the  obligor  in  a  state  of  fornication  ; 
WalkerV  Perkins,  3  Burr.  1-568;  1  Bl. 
517 ;  though  it  is  otherwise,  where  the 
bond  is  given  in  consideration  of  past 
seduction.  Turner  v.  Vaughan,  2  Wils. 
339;  Nye  v.  Mosely,  6  B.  &  C.  133; 
[even  though  the  obligor  does  not  cease 
to  cohabit  with  the  obligee.  Hall  v. 
Palmer,  3  Hare,  532.]  A  bond  condi- 
tioned to  procure  subscriptions  for  9000 
shares  in  a  patent,  which,  by  its  terms, 
was  assignable  to  no  greater  number 
\h?infive  persons,  has  been  held  void  for 
^illegality.  Duvergier  v.  Fel-  r^ir^Q-i 
lowes,  10  B.  &  C.  827  ;  5  Bing.  ^'^^^^ 
248.  In  Pole  v.  Harrobin,  9  East,  416, 
n.,  the  bond  was  to  secure  money  agreed 
to  be  given  for  the  discharge  of  a  person 
unlawfully  impressed,  and  was  held 
void.  [And  so  in  Arkwright  v.  Cantrell, 
7  A.  &  E.  565,  was  a  grant  conferring  a 
judicial  office  on  a  person  interested  in 
the  matters  to  be  decided.] 

The  illegality  is  equally  fatal  when 
created  by  statute;  thus  a  bond  will  be 
void  for  contravening  the  provisions  of 
9  Anne,  cap.  14,  sec.  1, against  gaming; 
see  Colborne  v.  Stockdale,  1  Strange, 
493;  Mazzinghi  v.  Stephenson,  1  Camp- 
bell, 291 :  those  of  5  &  6  Edw.  6,  c. 
16,  sees.  2  &  3,  against  the  sale  of  cer- 
tain offices;  Layng  v.  Paine,  Willes, 
571;  Godolphin  v.  Tudor,  Salk.  468; 
Law  V.  Law,  3  P.  Wms.  391  ;  [Hopkins 
V.  Prescott,  4  C.  B.  678] :  those  of  the 
statutesof31  Eliz.  cap.  6,  and  12  Anne, 
stat.  2,  cap.  12,  against  simony.  See 
the  great  case  of  Ffytche  v.  The  Bishop 
of  London,  1  East,  437,  et  notas;  Flet- 
cher V.  Lord  Sondes,  3  Bing.  501  ;  and 
see  St.  7  &  8  G.  4,  c.  25,  and  9  G.  4,  c. 
94;  see  also  the  whole  subject  elabor- 


COLLINS    V.     BLANTERN. 


425 


alely  discussed,  Fox  v.  Bishop  of  Ches- 
ter, 6  Bing.  1.  So  a  bond  is  void,  if  it 
infringe  the  provisions  of  the  statutes 
against  Usury.  See  the  notes  to  Fcrrall 
V.  Shaen,  1  Wms.  Saund.  294.  A  con- 
tract to  perform  at  an  unlicensed  theatre 
is  void,  Levy  v.  Yates,  8  A.  &,  E.  129; 
and  a  contract  may  be  illegal,  although 
not  in  contravention  of  the  specific  direc- 
tions of  a  statute,  if  it  be  opposed  to  the 
general  policy  and  intent  thereof,  see 
Staines  v.  Wainright,  6  Bing.  N.  C. 
174. 

It  is  laid  down  in  some  of  the  older 
cases,  that  where  there  are  several  con- 
ditions to  a  bond,  and  any  one  of  them 
is  void  by  statute,  the  whole  bond  is 
void.  Norton  v.  Syms,  Moore,  856  ;  S, 
C.  Hobart,  14;  Lee  v.  Colshill,  Cro. 
Elz.  599;  Layng  v.  Payne,  VVilles,  571. 
In  Norton  v.  Syms,  a  distinction  is  taken 
in  this  respect  between  covenants  or 
conditions  void  by  common  law,  and 
those  that  are  void  by  statute.  It  is 
said,  that  when  some  covenants  in  an 
indenture  are  void  by  common  law,  and 
the  others  good,  a  bond  for  the  perform- 
ance of  all  the  covenants  may  be  good, 
so  far  as  respects  the  covenants  that  are 
good.  But  otherwise,  if  any  of  the  cove- 
nants be  void  by  statute,  there  the  bond 
is  void  in  toto.  See  also  1  Mod.  35, 36 ; 
and  per  Buller,  J.,  2  T.  R.  139  ;  the  ex- 
pressions of  the  Lord  Chief  Justice  in 
the  text;  see  also  Newman  v.  Newman, 
4  M.  &  S.  68,  and  5  Taunt.  746.  How- 
ever, the  expressions  used  in  the  books, 
r*169al  ^^'"^h  *lay  down  that  if  one  of 
'-  J  theconditionsof  abond  be  void 

by  statute,  the  whole  bond  is  void,  must 
be  understood  to  apply  only  to  cases 
where  the  statute  enacts  that  all  instru- 
ments containing  any  matter  contrary 
thereto  shall  be  void,  for  otherwise  the 
common  law  rule  will  apply,  and  that 
part  only  will  be  void  which  contravenes 
the  provisions  of  the  statute ;  Gaskell  v. 
King,  11  East,  165;  Wigg  v.  Shuttle- 
worth,  13  East,  87;  How  v.  Synge,  15 
East,  440;  provided  the  good  part  be 
separable  from,  and  not  dependant  on, 
the  illegal  part.  Biddell  v.  l^eader,  1  B. 
&  C.  327;  Kerrison  v.  Cole,  8  East, 
231 ;  see  Wood  v.  Benson,  2  Tyrwh.  97. 
It  is  indeed  clear  that  if  a  contract  be 
made  on  several  considerations,  one  of 
which  is  illegal,  the  lohole  promise  will 
be  void.  Featherston  v.  Hutchinson, 
Cro.  Eliz.  199;  Waite  v.  Jones,  1  Bing. 
N.  C.  662;  Shackell  v.  Rosier,  2  Bing. 
N.  C.  646.     [See  ace.  Hovvden  v.  Haigh, 


11  A.  &E.  1036.]     And   that  whether 
the  illegality  be  at  common  law,  or  in- 
troduced by  statute.     Per  Tindal,  C.  J., 
in  Shackell  v.  Rosier.     The  difference 
is,  that  every  part  of  the  contract  is  in- 
duced and  atibcted  by  the  illegal  con- 
sideration; whereas  in  cases  where  the 
consideration  is  tainted  by  no  illegality, 
but  some  of  the  conditions  (if  it  be  a 
bond),  or  promises  (if  it  be  a  contract  of 
any  other  description),  are  illegal,  the 
illegality  of  those  which  are  bad  does 
not  communicate  itself  to,  or  contami- 
nate,  those    which    are    good,   except 
where,  in   consequence  of  some  pecu- 
liarity in  the  contract,  its  parts  are  in- 
separable or  dependent  upon   one   an- 
other.    [See  Mallan  v.  May,  11  M.  &. 
W.  653.     Green  v.  Price,  13  M.  &  W. 
695;  Price  v.  Green,  15  M.  &  W.  346.] 
It  may  be  here  observed,  that  though 
the  illegality  of  one  of  the  considera- 
tions vitiates  the  contract,  yet  it  is  other- 
wise if  one  or  more  of  them  be  merely 
void  and  nugatory,  as,  for   instance,  a 
promise  by  a  man  to  pay  his  own  just 
debts;  for  then  the  void  consideration  is 
a  nullity,  and  the  others  which  remain 
support    the    contract.     See    Jones    v. 
Waite,  5  Bing.  N.  C.  341,  and  the  au- 
thorities cited  there  by  Ellis  arguendo. 
In  order  that  a  bond  or  other  contract 
may  be  void  for  disobedience  to  a  statute, 
it  is  not  necessary  that  the  statute  should 
contain  words  of  positive   prohibition. 
"The  principle,"  said  Tindal,  C.  J.,  in 
De  Begnis  v.  Armistead,  10  Bing.  110, 
"  is  very  clearly  expressed  by  Holt,  C. 
J.,  in  Bartlett  v.    Vinor,    Carth.   252. 
'  Every  contract  made  for  or  about  any 
matter  or  thing  which  is  prohibited  and 
made  unlawful  by  statute,  is  a  void  con- 
tract, though  the  statute  does  not  men- 
tion  that  it  shall  be  so,  but  only  inflict  a 
penalty    on    the    oftender,    because    a 
penalty   implies   a   prohibition,    though 
there  are  no  prohibitory  words  in  the 
statute.'"     Accord.   Ferguson   v.   Nor- 
man, 5  Bing.,  N.  C.  80  [Cun-  r^iRo;  -i 
dell  V.  Dawson,  *4  C.  B.  376] ;  L   ^°^"-l 
see  too  Gas  Light  Comp.  v.  Turner,  6 
Bing.  N.  C.  324, 5  lb.  666,  where  it  was 
held  that  the  covenants  in  a  lease,  ex- 
pressed to  be  granted  for  a  purpose  for- 
bidden by  statute,  could  not  be  enforced, 
[and  it  was  there  made  a  question,  whe- 
ther the  landlord  could  ever  recover  the 
land,  which,  however,  it  would  seem  he 
might,  see  Tregoning  v.  Attenborough, 
7  Bing.  97;  but  see  Scarfe  v.  Morgan,  4 
M.  &,  W.  270],  and  Cope  v.  Rowlands, 


426 


SMITH'S     LEADING    CASES. 


2  M.  &.  W.  157,  where  the  court  also 
nejratived  an  idea  that  had  existed,  viz. 
that  there  was  a  difference  between  the 
stringency  of  a  statute  for  the  protection 
of  the  subject  and  one  for  the  protection 
of  the  revenue. 

[Nice  questions  of  construction  how- 
ever sometimes  arise  in  determininjr 
whether  the  intention  of  a  statute  pre- 
scribing under  penalties  the  mode  of 
carrying  on  a  particular  trade  according 
to  certain  rules  for  the  protection  of  the 
revenue,  is  merely  to  protect  and  in- 
crease the  revenue  by  enforcing  the 
penalties  against  a  trader  who  does  not 
comply  with  the  rules,  or  to  render  liie 
contracts  entered  into  by  such  trader 
illegal.  See  Johnson  v.  Hudson,  11 
East,  180.  In  Smith  v.  Mawhood,  14 
M.  &Z.  VV.  452,  it  was  laid  down  in  con- 
formity with  the  cases  above  cited,  that 
where  the  intent  of  a  statute  is  to  pro- 
hibit a  contract,  although  that  be  only 
by  the  imposition  of  a  penalty  and  for 
purposes  of  revenue,  the  contract  is  void 
and  cannot  be  enforced  by  action ;  but 
upon  the  construction  of  the  statute  then 
under  consideration,  the  Excise  License 
Act,  6  Geo.  4,  c.  61,  it  was  holden  that 
the  sections  25  and  26,  which  inforce 
penalties  upon  any  manufacturer,  or 
dealer  in,  or  seller  of  tobacco,  who  shall 
not  have  his  name  painted  on  his  entered 
premises,  or  shall  not  have  obtained  a 
license,  had  not  the  effect  of  avoiding  a 
sale  made  by  one  who  had  not  conformed 
to  their  provisions,  or  of  defeating  an 
action  for  the  price. 

A  contract  will  not  become  illegal  by 
relation  which  was  not  so  when  made, 
although  the  party  making  it  was  bound 
by  law  under  a  penalty  to  do  a  subsequent 
act,  which  has  however  been  neglected  ; 
thus  where  an  attorney  neglected  to 
enter  his  certificate  he  was  permitted  to 
recover  for  work  done  before  the  e.vpi- 
ration  of  the  time  allowed  for  entering 
it.  Eyre  v.  Shelley,  6  M.  &  W.  27U. 
And  there  may  occur  cases  in  which  a 
contract,  the  performance  of  which  could 
not  have  been  enforced  because  the  con- 
tract itself  was  forbidden,  will  become 
available  if  executed,  because  the  policy 
of  the  statute  which  prohibits  its  enforce- 
ment while  in  an  executory  statute  was 
to  secure  its  execution,  xM'Callan  v. 
Mortimer,  9  M.  &  \V.  640,  where  the 
seller  of  stock  recovered  the  price  of 
stock  actually  transferred,  although  at 
the  time  of  the  contract  to  transfer  the 
seller  was  not  actually  possessed  of  or 


entitled  to  the  stock,  and  so  the  contract 
while  executory,  as  it  is  said,  was  inca- 
pable of  being  enforced  by  reason  of  the 
provisions  of  the  Stock  Jobbing  Act,  7 
Geo.  2,  c.  8,  s.  8. 

It  seems,  that  a  contract  is  not  illegal 
or  void,  simply  because  private  rights 
are  interfered  with  by  the  act  stipulated 
for;  e.  g.,  where  the  consideration  is  a 
breach  of  contract  or  of  private  trust, 
the  contract  may  be  enforced,  and  the 
persons  injured  by  its  performance  are 
left  to  the  ordinary  means  of  redress ; 
Walker  v.  Richardson,  10  M.  &  W.  284 ; 
per  Parke,  B.,  Jackson  v.  Cobbin,  8  M. 
&  VV.  797;  per  Vaughan,  C.  J.,  Rud- 
yard's  case,  2  Vent.  23.1 

A  question  sometimes  arises,  whether, 
wJien  a  statute  points  out  a  particular 
mode  for  the  performance  of  some  act 
therein  commanded,  its  enactments  shall 
be  taken  to  be  imperative,  or  only  direc- 
tory ;  in  *the  former  only  of  which  r:i:j7A-| 
cases  an  act  done  in  a  different  '-  ^ 
mode  from  that  pointed  out  by  the  statute 
would  be  void.     In  Pearce  v.  Morrice, 

2  Ad.  &  Ell.  96,  the  following  rule  for 
distinguishing  between  imperative  and 
merely  directory  enactments,  is  given  by 
Mr.  J.  Taunton,  "A  clause  is  directory 
where  the  provisions  contain  mere  matter 
of  direction,  and  no  more;  but  not  so 
when  they  are  followed  by  words  of 
positive  prohibition."  See  Rex  v.  Grave- 
send,  3  B.  &  Ad.  240 ;  Rex  v.  St.  Greg- 
ory, 2  Ad.  &  Ell.  106;  Brooks  v.  Cock, 

3  A.  &.  E.  138:  [Southampton  Dock 
Company  v.  Richards,  1  Man.  &  Gr. 
445;  Scott,  N.  R.,  S.  C,  R.  v.  Birming- 
ham, 6  B.  &C.  29;  Cole  v.  Green,  7 
Scott,  N.  R.  682,  where  a  particular 
mode  of  signature  of  a  contract  was 
directed.]  "It  is  (said  Parke,  B.,  in 
Gwynne  v.  Burnell,  2  Bing.  N.  C.  39) 
by  no  means  any  impediment  to  constru- 
ing a  clause  to  be  directory,  that  if  it  is 
so  construed  there  is  no  remedy  for  non- 
compliance with  the  direction.  Thus, 
the  statutes  which  direct  the  quarter 
sessions  to  be  held  at  certain  times  in 
the  year,  are  construed  to  be  directory. 
Rex  v.  Justices  of  Leicester,  7  B.  &  C. 
6.  And  the  sessions  held  at  other  times 
are  not  void.  Yet  it  would  be  difficult 
to  say  that  there  would  be  any  remedy 
against  the  justices  for  appointing  them 
on  other  than  the  times  prescribed  by 
the  statute."  [Thames  Haven  Dock 
Company  v.  Rose,  4  Man.  &,  Gr.  552, 
Scott,  N.  R.,  S.  C] 

In  Gillow  V.  Lillie,  1  Bing.  N.  C.  696, 


1 


COLLINS    V.     B  L  A  N  T  E  R  N. 


427 


the  question  was  discussed,  whether  a 
joint  deed  executed  by  two  persons,  one 
of  whom  laboured  under  a  statutory  dis- 
ability, would  be  void  as  against  both, 
or  only  as  against  the  one  rendered  in- 
capable by  statute  ;  but  the  point  was 
not  decided,  as  the  court  held  that,  the 
deed  being  several  as  well  as  joint,  the 
defendant's  several  liability  was  suffici- 
ent to  maintain  the  action. 

It  is  laid  down  in  VVhelpdale's  case, 
5th  Rep.  119,  a.,  Stead  v.  Moon,  Cro. 
Jac.  152,  and  ever  since  held,  that  ille- 
gality must  he  pleaded  in  answer  to  a 
bond  or  other  deed, and  cannot  be  taken 
advantage  of  under  a  plea  of  non  est 
fuclum.  See  Mestayer  v.  Biggs,  4 
Tyrwh.  471,  1  C.  M.  &  R.  110,  where 
it  was  held  that  non-compliance  with 
the  provisions  of  the  annuity  act  must 
be  pleaded.  And  so  must  fraud.  Ed- 
wards V.  Stephen,  1  Tyrwh.  209.  In 
Hill  V.  Manchester  and  Salford  Water- 
works Company,  5  B.  &  Ad.  874,  a  cor- 
poration was  empowered  by  statute  to 
raise  money  by  bonds  under  their  com- 
mon seal,  and  the  act  directed  that  the 
issue  of  all  such  bonds  should  be  sanc- 
tioned by  the  resolution  of  a  meeting  of 
proprietors,  constituted  in  a  particular 
way.  Certain  bonds  were  issued  by 
the  agent,  and  sealed  with  the  seal  of 
the  corporation,  but  not  in  pursuance  of 
the  resolution  of  any  such  meeting  as 
the  statute  directed.  The  court  held 
that  the  bonds  were  void,  and  that  the 
non-compliance  with  the  provisions  of 
the   statute    need  not   be   pleaded,  but 


might  be  given  in  evidence  under  non 
est  factum.  This  case  proceeded  on  the 
ground  that  as  the  corporation  was  the 
creature  of  the  act,  and  had  no  powers 
but  those  which  the  aci  gave  it,  a  bond 
not  executed  in  conformity  to  the  act 
was  not  in  point  of  fact  executed  by  the 
corporation  at  all.  See  Pontet  v,  Ba- 
singstoke Canal  Co.,  3  Ding.  N.  C.  433. 
The  illegality  too  must  be  clearly 
shewn,  for  it  is  a  thing  not  to  be  pre- 
sumed upon  a  dubious  state  of  pleading, 
Jones  V.  VVaite,  5  Bing.  N.  C.  350 ;  9 
CI.  &  Fin.  8S,  S.  C. 

With  respect  to  fraud,  that  has  been 
always  considered  pleadable  as  well  as 
illegality,  and  it  is  pleadable  only  and 
cannot  be  given  in  evidence  under  noii 
est  factum,  Edwards  v.  Brown,  1  C.  &. 
Jerv.  307.  In  a  late  case  at  N.  P., 
Lord  Abingerheld  that  where  the  party 
knows  the  effect  of  what  he  executes, 
proof  that  it  was  executed  in  conse- 
quence of  previous  fraud  is  not  evidence 
under  a  plea  of  fraud.  Mason  v.  Ditch- 
bourne,  1  M.  &  Rob.  460.  A  new  trial 
was  moved  for,  and  the  Court  of  Exche- 
quer made  the  rule  absolute  in  order 
that  the  question  might  be  more  dis- 
tinctly raised,  ibid,  in  notis,  2  C.  M.  & 
R.  720,  n. 

[Where  it  is  sought  to  invalidate  a 
deed  on  the  ground  of  fraud,  evidence  of 
a  consideration  different  from  that  ex- 
pressed may  be  given  for  the  purpose  of 
supporting  the  deed.  Gale  v.  William- 
son, 8  M.  &  W.  405;  Pott  v.  Tod- 
hunter,  2  Col.  C.  C.  76.] 


It  seems,  that  fraud  could  not  be  pleaded,  or  given  in  evidence  at  common 
law,  as  a  defence  to  an  action  on  a  specialty,  unless  it  attached  directly  to 
the  execution  of  the  instrument,  and  not  merely  to  the  transaction  in  which 
the  instrument  originated.  A  grantor  or  obligor  might,  therefore,  avoid  his 
ovrn  deed  by  showing,  that  it  was  misread,  or  its  purport  falsely  declared  at 
the  time  when  it  was  executed ;  Thoroughgood's  case,  2  Coke,  4 ;  Den  v- 
Farlee,  2  Zabriskie,  289;  Jackson  v.  Rayner,  12  Johnson,  469;  The 
Farmers  and  Mechanics'  Bank  v.  Whinfield,  24  Wend.  419 ;  Anthony  v. 
Wilson,  14  Pickering,  303;  The  Chesnut  Hill  Reservoir  Company  v.  Chase, 
14  Connecticut,  123  ;  but  not  that  he  had  been  induced  to  execute  it,  by  frau- 
dulent representations,  as  to  the  nature  or  value  of  the  consideration  on 
which  it  is  founded;  Vrooman  v.  Phelps,  2  Johnson,  177;  Dale  v.  Roose- 
velt, 9  id.  307  ;  Dorr  v.  Munsell,  13  id.  430 ;  Franchot  v.  Leach,  5  Cowen, 
506 ;  Stevens  v.  Judson,  4  Wend.  471 ;  Taylor  v.  King,  6  Munford,  358  ; 
Wyck  V.  Macklin,  2  Randolph,  420 ;  Burrows  v.  Alter,  7  Missouri,  424 ; 


428  smith's     LEADINa    CASES. 

Mordecai  v.  Tankerly,  1  Alabama,  100 ;  Donaldson  v.  Barton,  4  Dev.  &  Bat. 
435.  Thus  it  was  liekl  in  Stevens  v.  Judson,  4  Wendell,  471,  that  a  plea 
alleging,  that  the  execution  of  the  bond,  on  which  suit  had  been  brought, 
had  been  induced  by  the  fraudulent  misrepresentations  of  the  plaintiff,  was 
bad  after  verdict,  and  that  judgment  must  be  entered  against  the  defendant, 
notwithstanding  a  finding  by  the  jury  in  his  favour.  An  opposite  course 
was  notwithstanding  pursued  in  Massachusetts,  where  it  was  held,  that  a 
contract  vitiated  by  fraud,  cannot  be  enforced  at  law  by  the  guilty  party, 
even  when  it  is  under  seal,  and  when  the  fraud  consists  in  misrepresenta- 
tions as  to  the  consideration,  and  not,  as  in  Thoroughgood's  case,  with 
regard  to  the  purport  of  the  contract  itself;  Bliss  v.  Thompson,  4  Massa- 
chusetts, 92  ;  Boynton  v.  Hubbard,  7  id.  119  ;  Somes  v.  Skinner, 16  id.  348. 
"  Where  fraud  is  proved,  or  admitted,"  said  Story,  J,,  in  Boynton  v. 
Hubbard,  <■'■  no  good  reason  can  be  assigned  why  relief  should  not  be  obtain- 
ed in  a  court  of  law,  although  not  always  in  the  same  way,  in  which  it  might 
be  obtained  in  a  court  of  equity."  And  it  was  subsequently  held  in  Hazard 
V.  Irwin,  that  where  a  sale  is  made,  and  a  bond  given  for  the  purchase- 
money,  fraud  in  the  sale  is  a  good  answer  to  an  action  on  the  bond. 

A  .similar  view  prevails  in  Virginia,  and  some  other  parts  of  the  Union ; 
Chew  V.  Moffitt,  6  Munford,  120 ;  Tomlinson  v.  Mason,  6  Kandolph,  169. 
And  the  rigor  with  which  the  common  law  enforced  obligations  under  seal, 
has  been  mitigated  in  many  of  the  states  by  statute,  and  fraud,  or  failure  of 
consideration,  rendered  a  good  defence  to  a  sealed  instrument;  Case  v. 
Boughton,  11  Wend.  108  ;  Grreathouse  v.  Dunlap,  3  M'Lean,  803  ;  Leonard 
V.  Bates,  1  Blackford,  172. 

Whatever  may  be  the  effect  of  a  seal  at  common  law,  when  the  transac- 
tion is  fraudulent  as  between  the  parties,  it  cannot  give  effect  to  any  trans- 
action which  contravenes  the  general  policy  of  the  law.  A  deed  may, 
therefore,  be  avoided  in  all  cases  by  showing,  that  it  is  founded  upon  an 
illegal  consideration ;  Bruce  v.  Lex,  4  Johnson,  210 ;  Boyle  v.  Cooper,  2 
Murphy,  286  ;  or  that  it  was  executed  in  violation  of  some  rule  of  common 
or  statute  law;  Fox  v.  Mensch,  3  Watts  &  Sergeant,  444. 

All  defences  to  a  specialty  founded  on  the  transaction  in  which  it  was 
given,  and  collateral  to  the  specialty  itself,  must  be  set  forth  specially, 
and  nothing  can  be  given  in  evidence  under  the  plea  of  non  est  factum, 
which  does  not  defeat,  or  dispi'ove  the  execution  of  the  instrument;  Great- 
house  V.  Dunlap,  3  M'Lean,  303.  Illegality,  or  fraudulent  failure  of  con- 
sideration must,  therefore,  be  specially  pleaded,  whether  the  defence  be  made 
under  the  common  or  statute  law;  Taylor  v.  King,  6  Munford,  358;  Chew 
V.  Moffit,  id.  120;  Tomlinson  v.  Mason,  6  Hand.  169;  Huston  v.  Williams, 
3  Blackford,  170 ;  The  Commissioners  of  the  Poor  v.  Harrison,  1  Nott  & 
M'Cord,  554 ;  The  United  States  v.  Sawyer,  1  Gallison,  87. 

And  it  would  even  appear,  that  if  the  defendant  admit  of  sealing  and 
delivery  of  the  instrument,  and  seek  to  avoid  their  effect  by  showing, 
that  they  were  induced  by  a  fraudulent  statement  at  the  time  of  execu- 
tion, he  must  set  forth  his  defence  in  full  on  the  record,  and  cannot  take 
advantage  of  it  under  the  general  issue ;  Edwards  v.  Brown,  1  Cr.  &  J.  307 ; 
Thoroughgood's  case.  The  law  was,  however,  held  the  other  way  in  Van 
Valkenbergh  v.  llouk,  12  Johns.  337,  where  it  was  said,  that  the  defendant 
might  prove  under  7ion  est  factum,  that  one  instrument  had  been  fraudu^ 


COLLINS     V.    BLANTERN.  429 

lently  substituted  for  another  at  the  time  of  execution,  because  this  would 
show,  that  his  assent  had  never  been  legally,  or  actually  given  to  the  former. 
And  it  was  said  in  like  manner  by  Story,  J.,  that  the  existence  of  fraud  or 
undue  influence  had,  in  common  with  lunacy,  rendered  the  deed  wholly 
void,  and  might,  therefore,  be  given  in  evidence  under  the  plea  of  non  est 
factum.     The  point  was  not,  however,  actually  decided  on  either  occasion. 

All  matters  which  would  entitle  the  defendant  in  an  action  brought  on  a 
specialty,  to  relief  in  a  court  of  equity,  will  be  a  good  defence  in  a  court  of 
law  in  Pennsylvania,  where  both  systems  of  jurisprudence  are  administered 
by  the  same  tribunals,  through  the  medium  of  legal  forms.  Fraud  or  fail- 
ure of  consideration  may,  therefore,  cither  be  specially  pleaded  to  a  suit 
brought  on  a  bond,  or  taken  advantage  of  at  the  trial,  under  a  plea  of  payment, 
with  notice  of  the  special  matter  to  be  given  in  evidence ;  Stubb  v.  King, 
14  Sergeant  &  Rawle,  20G.  In  Carpenter  v.  Groff,  5  Sergeant  &  Rawle, 
1G2,  this  doctrine  was  applied  where  the  bond  had  been  obtained,  through 
the  fraudulent  misrepresentations  of  the  obligee  ;  and  in  Solomon  v.  Kimmel, 
5  Binney,  232,  where  the  consideration  failed  in  consequence  of  the  failure 
of  title  to  the  land,  for  which  the  bond  Avas  given. 

Previously  to  this,  the  law  had  been  authoritatively  established,  in  the 
case  of  Baring  v.  Sbippen,  2  Binney,  154,  and  want  of  consideration  and 
fraud  on  the  part  of  the  obligee,  at  the  time  of  the  delivery  of  the  bond, 
held  a  valid  defence  against  a  subsequent  assignee,  who  brought  suit  in 
his  own  name  under  the  provisions  of  a  local  enactment.  There  has  con- 
sequently been  but  little  occasion  in  Pennsylvania,  to  discuss  what  would 
be  good  common  law  pleas  to  a  bond,  and  few  cases  are  to  be  found  on  the 
subject.  Every  thing  which  ex  ajquo  et  bono,  should  prevent  the  obligee 
from  recovering,  if  not  capable  of  being  pleaded  under  the  rules  of  the 
common  law,  may  be  taken  advantage  of,  either  under  the  plea  of  payment, 
with  notice  of  the  special  matter  to  be  given  in  evidence,  or  by  the  aid  of  a 
special  plea,  which,  if  not  good  in  law,  will  yet,  if  set  forth  with  sufficient 
precision,  be  supported  by  the  courts  on  equitable  grounds.  The  law  of 
South  Carolina  seems  to  be  substantially  on  the  same  footing;  Caldbirn  v. 
Matthews,  2  Richardson,  386  ;  Gray  v.  Haukinson,  1  Bay,  278  ;  The  State 
V.  Gallard,  2  id.  11;  Adams  v.  Wylie,  1  Nott  &  M'Cord,  78;  Mears  v. 
Barkett,  2  Hill,  657 ;  Ptaysdale  v.  Thomas,  M'Mullan,  335. 

II. 


430  smith's   leading   cases. 


[=472]      ===MITCIIEL   V.    REYNOLDS. 

niL.  1711,  B.  R. 

[reported  1    p.  ^YILLIAMS,  181.(a)] 

A  bond  or  promise  to  restrain  oneself  from  trading'  in  a  particular  place,  if  made 
upon  a  reasonable  consideration,  is  good.  Secus,  if  it  be  on  no  reasonable 
consideration,  or  to  restrain  a  man  from  trading  at  all. 

Debt  upon  a  bond.  The  defendant  prayed  oyer  of  the  condition,  wbich 
recited,  that  whereas  the  defendant  had  assigned  to  the  plaintiff  a  lease  of 
a  messuage  and  bakehouse  in  Liquorpond  Street,  in  the  parish  of  St.  An- 
drew's, Holborn,  for  the  term  of  five  years  :  now  if  the  defendant  should 
not  exercise  the  trade  of  a  baker  within  that  parish,  during  the  said  term, 
or,  in  case  he  did,  should  within  three  days  after  proof  thereof  made,  pay 
to  the  plaintiff  the  sum  of  fifty  pounds,  then  the  said  obligation  to  be  void. 
Quihus  lectis  et  auditis,  he  pleaded,  that  he  was  a  baker  by  trade,  that  he 
had  served  an  apprenticeship  to  it,  ratione  cvjim  the  said  bond  was  void  in 
law,  per  quod  he  did  trade,  prout  ei  hene  licuit.  AVhcreupon  tbe  plaintiff 
demurred  in  law. 

And  now,  after  this  matter  had  been  several  times  argued  at  the  bar,  Par- 
ker, C.  J.,  delivered  the  resolution  of  the  court. 

The  general  question  upon  this  record  is,  whether  this  bond,  being  made 
in  restraint  of  trade,  be  good  ? 

And  we  are  all  of  opinion,  that  a  special  consideration  being  set  forth  in 
the  condition,  which  shows  it  was  reasonable  for  the  parties  to  enter  into  it, 
the  same  is  good  ;  and  that  the  true  distinction  in  this  case  is,  not  between 
promises  and  bonds,  but  between  contracts  ivifh  and  zvithout  consideration; 
and  that  wherever  a  sufiicient  consideration  appears  to  make  it  a  proper  and 
a  useful  contract,  and  such  as  cannot  be  set  aside  without  injury  to  a  fair 
contractor,  it  ought  to  be  maintained  ;  but  with  this  constant  diversity,  viz. 
where  the  restraint  is  general  not  to  exercise  a  trade  throughout  the  king- 
dom, and  where  it  is  limited  to  a  particular  place  ;  for  the  former  of  these 
must  be  void,  being  of  no  benefit  to  either  party,  and  only  oppressive,  as 
shall  be  shown  by  and  by. 

The  resolutions  of  the  books  upon  these  contracts  seeming  to  disagree,  I 
will  endeavour  to  state  the  law  upon  this  head,  and  to  reconcile  the  jarring 
opinions;  in  order  whereunto,  I  shall  proceed  in  the  following  method. 
1st.   Give  a  general  view  of  the  cases  relating  to  the  restraint  of  trade. 
2ndly.  Make  some  observations  from  them. 

(a)  10  Mod.  27.  85.  130.     Fort  29G.     Resolution  of  the  court  of  B.  R. 


MITCHEL     V.     REYNOLDS.  431 

Srdly.  Shew  the  reasons  of  the  diflferencos  which  arc  to  be  found  in  these 
cases ;  and 

4thly.  Apply  the  whole  to  the  case  at  bar. 

As  to  the  cases,  they  are  either  first,  of  involuntary  restraints  against,  or 
without,  a  man's  own  consent;  or  secondly,  of  voluntary  restraints  by  agree- 
ment of  the  parties. 

Involuntary  restraints  may  be  reduced  under  these  heads, 

1st.  Grants  or  charters  from  the  crown. 

2ndly.  Customs. 

3dly.  By-laws. 

Grants  or  charters  from  the  crown  may  be, 

1st.  A  new  charter  of  incorporation  to  trade  generally,  exclusive  of  all 
others,  and  this  is  void.  8  Co.  121. 

2ndly.  A  grant  to  particular  persons  for  the  sole  exercise  of  any  known 
trade;  and  this  is  void,  because  it  is  a  monopoly,  and  against  the  policy  of 
the  common  law,  and  contrary  to  Magna  Charta.  11  Co.  84. 

3dly.  A  grant  of  the  sole  use  of  a  new  invented  art,  and  this  is  good, 
being  indulged  for  the  encouragement  of  ingenuity  ;  but  this  is  tied  up  by 
the  statute  of  21  Jac.  1,  cap.  3,  s.  6,  to  the  term  of  fourteen  years ;  for 
after  that  time  it  is  presumed  to  be  a  known  trade,  and  to  have  spread 
itself  among  the  people,  (f) 

Restraints  by  custom  are  of  three  sorts, 

1st.  Such  as  are  for  the  benefit  of  some  particular  persons,  who  are 
alleged  to  use  a  trade  for  the  advantage  *of  a  community,  which  are  rjji-i-.T-i 
goods,  8  Co.  125.  Cro.  Eliz.  803.  1  Leon.  142.  Mich.  22  H.  6,  L '•^''^-^ 
614.     2  Bulst.  195.     1  Roll.  Abr.  561. 

2dly.  For  the  benefit  of  a  community  of  persons  who  are  not  alleged, 
but  supposed  to  use  the  trade,  in  order  to  exclude  foreigners. (|)  Dyer, 
279,  b.  W.  Jones,  162.  8  Co.  121.  11  Co.  52.  Carter,  68,  114,  held 
good. 

3dly.  A  custom  may  be  good  to  restrain  a  trade  in  a  particular  place, 
though  none  are  either  supposed  or  alleged  to  use  it;  as  in  the  case  of  Rip- 
pon.     Register,  105,  106. 

Restraints  of  trade  by  by-laws  are  these  several  ways. 

1st.  To  exclude  foreigners ;  and  this  is  good,  if  only  to  enforce  a  prece- 
dent custom  by  a  penalty.  Carter,  68.  114.  8  Co.  125. («)  But  where 
there  is  no  precedent  custom,  such  by-law  is  void.  1  Roll.  Abr.  364.  Hob. 
210.  1  Bulst.  11,  3  Keb.  808. (i)  But  the  case  in  Keble  is  misreported; 
for  there  the  defendants  did  not  plead  a  custom  to  exclude  foreigners,  but 
only  generally  to  make  by-laws,  which  was  the  ground  of  the  resolution  in 
that  case. 

2dly.  All  by-laws  made  to  cramp  trade  in  general,  are  void.  Moor,  576. 
2  Inst.  47.     1  Bulst.  11. 

3dly.  By-laws  made  to  restrain  trade,  in  order  to  the  better  government 

(t)  See  the  further  regulations  introduced  by  st.  5  &,  G  VV.  4,  c.  83 ;  2  &  .3  V  c.  57  ;  7 
&  8  V.  c.  69. 

(t)  ResUaintsof  this  kind,  whether  by  custom  or  by  law,  are  now  abolislicd  in  all 
boroughs  by  st.  .S  &  6  W.  4,  c.  76,  s.  14.     This  act  does  not  affect  London. 

(a)  Wolley  v.  Idle,  4  Burr.  1951. 

(6)  Vide  Harrison  v.  Godman,  1  Burr.  12.    Ilesliclh  v.  Draddock,  3  Burr.  1S5G. 


432  smith's  leading  oases. 

and  regulation   of  it,  arc  good,  in   some  cases,(rj  viz.  if  they  are  for  the 
benefit  of  the  place,  and  to  avoid  public  inconveniences,  nuisances,  &c.     Or 
for  the  advantage  of  the  trade,  and  improvement   of  the  commodity.      Sid. 
284.     Ilaym.  288.     2  Keb.  27.  873,  and  5  Co.  G2,  b.,  which  last  is  upon 
the  by-law  for  bringing  all  broad-cloth  to  Blackwell-hall,  there  to  be  viewed 
and  marked,  and  to  pay  a  penny  per  piece  for  marking;  this  was  held  a  rea- 
sonable by-law ;  and  indeed  it  seems  to  be  only  a  fixing  of  the  market ;  for 
one  end  of  all  markets  is,  that   the  commodity  may  be  viewed ;  but  then 
they  must  not  make  people  pay  unreasonably  for  the  liberty  of  trading  there. 
In  2   Keb.  309,  the  recent  case  is  upon  a  by-law  for  restraining  silk- 
throwsters  from  using  more  than  such  a  certain  number  of  spindles,  and  there 
the  by-law  would  have  been  good,  if  the  reasons  given  for  it  had  been  true. 
Voluntary  restraints  by  agreement  of  the  parties  are  either, 
1st.  Greneral,  or 

2dly.  Particular,  as  to  places  or  persons. 
r*1^41       *  Greneral  restraints  are  all  void,  whether  by  bond,  covenant  or 
L         -I  promise,  &c.,  with  or  without  consideration,  and  whether  it  be  of 
the  party's  own  trade,  or  not.     Cro.  Jac.  596.     2  Bulst.  136.    Allen,  67. 

Particular  restraints  are  either,  1st.  without  consideration,  all  which  are 
void  by  what  sort  of  contract  soever  created.  2  H.  5,  5.  Moor,  115,  242. 
2  Leon.  210.  Cro.  Eliz.  872.  Noy,  98.  Owen,  143.  2  Keb.  377.  March, 
191.  Show.  2.  (not  well  reported.)  2  Saund.  155. 
Or  2dly,  particular  restraints  are  with  consideration. 
Where  a  contract  for  restraint  of  trade  appears  to  be  made  upon  a  good 
and  adequate  consideration,  so  as  to  make  it  a  proper  and  useful  contract,  it 
is  good.  2  Bulst.  136.  Rogers  v.  Parry.  Though  that  case  is  wrongly 
reported,  as  appears  by  the  roll  which  I  have  caused  to  be  searched,  it  is  B. 
R.  Trin.  11  Jac.  1.  Rot.  223.  And  the  resolution  of  the  judges  was  not 
grounded  upon  its  being  a  particular  restraint,  but  upon  its  being  a  particu- 
lar restraint  with  a  consideration,  and  the  stress  lies  on  the  words,  as  the 
case  is  here,  though,  as  they  stand  in  the  book,  they  do  not  seem  material. 
Noy,  98.  W.  Jones.  13  Cro.  Jac.  596.  In  that  case,  all  the  reasons  are 
clearly  stated,  and,  indeed,  all  the  books,  when  carefully  examined,  seem  to 
concur  in  the  distinction  of  restraints  general,  and  restraints  particular,  and 
with  or  without  consideration,  which  stands  upon  very  good  foundation ; 
Volenti  11011  Jit  injuria:  a  man  may,  upon  a  valuable  consideration,  by  his 
own  consent,  and  for  his  own  profit,  give  over  his  trade ;  and  part  with  it  to 
another  in  a  particular  place. 

Palm.  172.  Bragg  v.  Stanner.  The  entering  upon  the  trade,  and  not 
whether  the  right  of  action  accrued  by  bond,  promise  or  covenant,  was  the 
consideration  in  that  case. 

Vide  March's  Rep.  77,  but  more  particularly  Allen's  67,  where  there  is 
a  very  remarkable  case,  which  lays  down  this  distinction,  and  puts  it  upon 
the  consideration  and  reason  of  the  thing. 

Secondly,  I  come  now  to  make  some  observations  that  may  be  useful  in 
the  understanding  of  these  cases.     And  they  are, 

1st.  That  to  obtain  the  sole  exercise  of  any  known  trade  throughout  Eng- 
land, is  a  complete  monopoly,  and  against  the  policy  of  the  law. 

(c)  Wannell  v.  Chamber  of  tlie  City  of  London,  1  Stra.  675.  The  King  v.  Harrison,  3 
Burr.  1322.    Pierce  v.  Bartram,  Cowp.  269. 


MITCHEL     V.     REYNOLDS.  433 

*  2dlj.  That  when  restrained  to  particular  places  or  persons,  (if  r^jci^c-i 
lawfully  and  fairly  obtained),  the  same  is  not  a  monopoly.  L 

Bdly.  That  since  these  restraints  may  be  by  custom,  and  custom  must 
have  a  good  foundation,  therefore  the  thing  is  not  absolutely,  and  in  itself, 
unlawful. 

4thly.  That  it  is  lawful  upon  good  consideration  for  a  man  to  part  with 
his  trade. 

5lhly.  That  since  actions  upon  the  case  are  actions  injuriarum,  it  has 
been  always  held,  that  such  actions  will  lie  for  a  man's  using  a  trade  contrary 
to  custom,  or  his  own  agreement ;  for  there  he  uses  it  injurtomli/. 

Cthly.  That  where  the  law  allows  a  restraint  of  trade,  it  is  not  unlawful  to 
enforce  it  with  a  penalty. 

7thly.  That  no  man  can  contract  not  to  use  his  trade  at  all. 

Sthly.  That  a  particular  restraint  is  not  good  without  just  reason  and  con- 
sideration. 

Thirdly,  I  proposed  to  give  the  reasons  of  the  differences  which  we  find 
in  the  cases ;  and  this  I  will  do, 

1st.  With  respect  to  involuntary  restraints,  and 

2dly.  With  regard  to  such  restraints  as  are  voluntary. 

As  to  involuntary  restraints,  the  first  reason  why  such  of  these,  as  are 
created  by  grants  and  charters  from  the  crown  and  by-laws,  generally,  are 
void,  is  drawn  from  the  encouragement  which  the  law  gives  to  trade  and 
honest  industry,  and  that  they  are  contrary  to  the  liberty  of  the  subject. 

2dly,  Another  reason  is  drawn  from  Magna  Charta,  which  is  infringed  by 
these  acts  of  power;  that  statute  says,  nullus  liber  homo,  ^c,  disseisetur  de 
libera  tenemento  vel  libertatibus,  vel  liberis  consuetudinibus  suis,  &c.,  and 
these  words  have  been  always  taken  to  extend  to  freedom  of  trade. 

But  none  of  the  cases  of  customs,  by-laws  to  enforce  these  customs,  and 
patents  for  the  sole  use  of  a  new  invented  art,  are  within  any  of  these 
reasons ;  for  here  no  man  is  abridged  of  his  liberty,  or  disseised  of  his  free- 
hold ;  a  custom  is  lex  loci,  and  foreigners  have  no  pretence  of  right  in  a  par- 
ticular society,  exempt  from  the  laws  of  that  society ;  and  as  to  new  invented 
arts,  nobody  can  be  said  to  have  a  right  to  that  which  was  not  in  being  be- 
fore ;  and  therefore  it  is  but  a  reasonable  reward  to  ingenuity  and  uncommon 
industry. 

*  I  shall  show  the  reason  of  the  differences  in  the  cases  of  vol-  ^,^p-, 
untary  restraint.  L         J 

1st.  Negatively. 

2dly.   Affirmatively. 

I.  Necjativeli/  ;  the  true  reason  of  the  disallowance  of  these  in  any  case, 
is  never  drawn  from  Magna  Charta;  for  a  man  may,  voluntarily,  and  by  his 
own  act,  put  himself  out  of  the  possession  of  his  freehold ;  he  may  sell  it,  or 
give  it  away  at  his  pleasure. 

2dly.  Neither  is  it  a  reason  against  them,  that  they  are  contrary  to  the 
liberty  of  the  subject;  for  a  man  may,  by  his  own  consent,  for  a  valuable 
consideration,  part  with  his  liberty;  as  in  the  case  of  a  covenant  not  to  erect 
a  mill  upon  his  own  lands.  J.  Jones,  13  Mich.  4  Ed.  8,  57.  And  when 
any  of  these  are  at  any  tiaie  mentioned  as  reasons  upon  the  head  of  volun- 
tary restraints,  they  are  to  be  taken  only  as  general  instances  of  the  favour 
and  indulgence  of  the  law  to  trade  and  industry. 

Vol.  l— 28 


434  smith's   leading   cases. 

odl}-.  It  is  not  a  reason  against  them,  that  they  are  against  law,  I  mean, 
in  a  proper  sense,  for  in  an  improper  sense  tliey  are. 

All  the  instances  of  conditions  against  law  in  a  proper  sense,  are  reducible 
under  one  of  these  heads, 

1st.  Either  to  do  something  that  is  malum  in  se,  or  malum  prohibitum.. 
1  Inst.  206. 

2dly.  To  omit  the  doing  of  something  that  is  a  duty.     Palm.  172.   Hob. 

12,  Norton  v.  Sims. 

3dly.  To  encourage  such  crimes  and  omissions.    Fitzhcrb.  tit.  Obligation, 

13.  Bro.  tit.  Obligation,  34.     Dyer,  118. 

Such  conditions  as  these,  the  law  will  always,  and  without  any  regard  to 
circumstances,  defeat,  being  concerned  to  remove  all  temptations  and  induce- 
ments to  those  crimes;  and  therefore,  as  in  1  Inst.  206,  a  feoffment  shall  be 
absolute  for  an  unlawful  condition,  and  a  bond  void.  But  from  hence  I 
would  infer, 

1st.  That  where  there  may  be  a  way  found  out  to  perform  the  condition, 
without  a  breach  of  the  law,  it  shall  be  good.  Hob.  12.  Cro.  Car.  22. 
Perk.  228. 

2dly.  That  all  things  prohibited  by  law  may  be  restrained  by  condition ; 
and  therefore  these  particular  restraints  of  trade,  not  being  against  law,  in  a 
l-^-.__-.  proper  sense,  *as  being  neither  mala  in  se,  nor  mala  prohihita, 
I-  -I  and  the  law  allowing  them  in  some  instances,  as  in  those  of  customs 
and  assumpsits,  they  may  be  restrained  by  condition. 

II.  Affirmativeli/ ;  the  true  reasons  of  the  distinction  upon  which  the 
judgments  in  these  cases  of  voluntary  restraints  are  founded  are,  1st.  the 
mischief  which  may  arise  from  them,  1st.  to  the  party,  by  the  loss  of  his 
livelihood,  and  the  subsistence  of  his  family;  2dly.  to  the  public,  by  depriv- 
ing it  of  a  useful  member. 

Another  reason  is,  the  great  abuses  these  voluntary  restraints  are  liable 
to ;  as  for  instance,  from  corporations,  who  arc  perpetually  labouring  for 
exclusive  advantages  in  trade,  and  to  reduce  it  into  as  few  hands  as  possible; 
as  likewise  from  masters,  who  are  apt  to  give  their  apprentices  much  vexa- 
tion on  this  account,  and  to  use  many  indirect  practices  to  procure  such  bonds 
from  them  lest  they  should  prejudice  them  in  their  custom,  when  they  come 
to  set  up  for  themselves. 

3dly.  Because,  in  a  great  many  instances,  they  can  be  of  no  use  to  the 
obligee;  which  holds  in  all  cases  of  general  restraint  throughout  England; 
for  what  does  it  signify  to  a  tradesman  in  London,  what  another  does  at  New- 
castle ?  and  surely  it  would  be  unreasonable  to  fix  a  certain  loss  on  one  side, 
without  any  benefit  to  the  other.  The  Roman  law  would  not  enforce  such 
contracts  by  an  action.     See  Puff.,  lib.  5,  c.  2,  sect,  3.  21  H.  7,  20. 

4thly.  The  fourth  reason  is  in  favour  of  these  contracts,  and  is,  that 
there  may  happeri  instances  wherein  they  may  be  useful  and  beneficial,  as 
to  prevent  a  town  from  being  overstocked  with  any  particular  trade  :  or  in 
case  of  an  old  man,  who  finding  himself  under  such  circumstances  either  of 
body  or  mind,  as  that  he  is  likely  to  be  a  loser  by  continuing  his  trade,  in 
this  case  it  will  be  better  for  him  to  part  with  it  for  a  consideration,  that  by 
selling  his  custom,  he  may  procure  to  himself  a  livelihood,  which  he  might 
probably  have  lost,  by  trading  longer. 

5thly.  The  law  is  not  so  unreasonable  as  to  set  aside  a  man's  own  agree- 


I 


MITCH  EL     V.     REYNOLDS.  435 

ment  for  fear  of  an  uncertain  injury  to  him,  and  fix  a  certain  damage  upon 
another;  as  it  must  do,  if  contracts  with  a  consideration  were  made  void. 
Barrow  v.  Wood,  March  Rep.  77.  Mich.  7  Ed.  3,  65.  Allen,  67.  8  Co. 
121. 

*But  here  it  may  be  made  a  question,  that  suppose  it  does  not  ^#-1781 
appear  whether  or  no  the  contract  be  made  upon  good  considera-  L  J 
tion,  or  be  merely  injurious  and   oppressive,  what  shall   be   done  in   this 


case 


i?e,sp.  I  do  not  see  why  that  should  not  be  shown  by  pleading ;  though 
certainly  the  law  might  be  settled  either  way  without  prejudice;  but  as  it 
now  stands  the  rule  is,  that  wherever  such  contract  stat  indlffe renter,  and, 
for  aught  appears,  may  be  either  good  or  bad,  the  law  presumes  it  prima 
fiicie  to  be  bad,  and  that  for  these  reasons : 
1st.   In  favour  of  trade  and  honest  industry. 

2ndly.  For  that  there  plainly  appears  a  mischief,  but  the  benefit  (if  any) 
can  be  only  presumed ;  and  in  that  case,  the  presumptive  benefit  shall  be 
overborne  by  the  apparent  mischief. 

Srdly.  For  that  the  mischief  (as  I  have  shown  before)  is  not  only  private, 
but  public. 

4th]y.  There  is  a  sort  of  presumption,  that  it  is  not  of  any  benefit  to  the 
obligee  himself,  because,  it  being  a  general  mischief  to  the  public,  every 
body  is  affected  thereby;  for  it  is  to  be  observed,  that  though  it  be  not 
shown  to  be  the  party's  trade  or  livelihood,  or  that  he  had  no  estate  to  sub- 
sist on,  yet  all  the  books  condemn  those  bonds,  on  that  reason,  viz.,  aa 
taking  away  the  obligor's  livelihood,  which  proves  that  the  law  presumes  it; 
and  this  presumption  answers  all  the  difl[iculties  that  are  to  be  found  in  the 
books. 

As,  1st,  That  all  contracts,  where  there  is  a  bare  restraint  of  trade  and 
no  more,  must  be  void ;  but  this  taking  place,  only  where  the  consideration 
is  not  shown,  can  be  no  reason  why,  in  cases  where  the  special  matter 
appears,  so  as  to  make  it  a  reasonable  and  useful  contract,  it  should  not  be 
good  ;  for  there  the  presumption  is  excluded,  and  therefore  the  courts  of 
justice  will  enforce  these  latter  contracts,  but  not  the  former.    , 

2ndly.  It  answers  the  objection,  that  a  bond  does  not  want  a  considera- 
tion, but  is  a  perfect  contract  without  it ;  for  the  law  allows  no  action  on  a 
7iudum  pactum,  but  every  contract  must  have  a  consideration,  either 
expressed,  as  in  assumpsits,  or  implied,  as  in  bonds  and  covenants,  but  these 
latter,  though  they  are  perfect  as  to  the  form,  yet  may  be  void  as  to  the 
matter;  as  in  a  covenant  to  stand  seised,  *which  is  void  without  a  rt-|-Tn-i 
consideration,  though  it  be  a  complete  and  perfect  deed.  L 

ordly.  It  shows  why  a  contract  not  to  trade  in  any  part  of  England, 
though  with  consideration,  is  void ;  for  there  is  something  more  than  a  pre- 
sumption against  it,  because  it  can  never  be  useful  to  any  man  to  restrain 
another  from  trading  in  all  places,  though  it  may  be  to  restrain  him  from 
trading  in  some,  unless  he  intends  a  monopoly,  which  is  a  crime. 

4thly.  This  shows  why  promises  in  restraint  of  trade  have  been  held 
good;  for  in  those  contracts,  it  is  always  necessary  to  show  the  considera- 
tion, so  that  the  presumption  of  injury  could  not  take  place,  but  it  must  be 
governed  by  the  special  matter  shown.  And  it  also  accounts  not  only  for 
all  the  resolutions,  but  even  all  the  expressions  that  are  used  in  our  books 


436  SMITH'^     LEADING     CASES. 

in  these  cases ;  it  at  least  excuses  tlie  vehemence  of  Judge  Hull  in  2  H.  5, 
fol.  quinto;  for  suppose  (as  that  case  seems  to  be)  a  poor  weavei-,  having 
just  met  with  a  great  loss,  should,  in  a  fit  of  passion  and  concern,  be 
exclaiming  against  his  trade,  and  declare  that  he  would  not  follow  it  any- 
more, &c.,  at  which  instant,  some  designing  fellow  should  work  him  up  to 
such  a  pitch,  as,  for  a  trifling  matter,  to  give  a  bond  not  to  work  at  it  again, 
and  afterwards,  when  the  necessities  of  his  family  and  the  cries  of  his  chil- 
dren send  him  to  the  loom,  should  take  advantage  of  the  forfeiture,  and  put 
the  bond  in  suit ;  I  must  own,  I  think  this  such  a  piece  of  villainy,  as  is 
hard  to  find  a  name  for;  and  therefore  cannot  but  approve  of  the  indigna- 
tion that  judge  expressed,  though  not  his  manner  of  expressing  it.  Surely 
it  is  not  fitting  that  such  unreasonable  mischievous  contracts  should  be 
countenanced,  much  less  executed  by  a  court  of  justice. 

As  to  the  general  indefinite  distinction  made  between  bonds  and  promises 
in  this  case,  it  is  in  plain  words  this,  that  the  agreement  itself  is  good,  but 
when  it  is  reduced  into  the  form  of  a  bond,  it  immediately  becomes  void; 
but  for  what  reason  see  3  Lev.  241.  Now,  a  bond  may  be  considered  two 
ways,  either  as  a  security,  or  as  a  compensation;  and, 

1st.  Why  should  it  be  void  as  a  security?  Can  a  man  be  bound  too  fast 
from  doing  an  injury?  which  I  have  proved  the  using  of  a  trade  contrary 
to  custom  or  promise,  to  be. 

r*19m  *2ndly.  Why  should  it  be  void  as  a  compensation?  Is  there 
L  -^  any  reason  why  parties  of  full  age,  and  capable  of  contracting,  may 
not  settle  the  quantum  of  damages  for  such  an  injury?  Bract,  lib.  3,  c. 
2,  s.  4. 

It  would  be  very  strange,  that  the  law  of  England,  that(^a)  delights  so 
much  in  certainty,  should  make  a  contract  void,  when  reduced  to  certainty, 
which  was  good,  when  loose  and  uncertain ;  the  cases  in  March's  Rep.  77, 
191,  and  also  Show.  2,  are  but  indifi'erently  reported,  and  not  warranted  by 
the  authorities  they  build  upon. 

1st  Object.  In  a  bond  the  whole  penalty  is  to  be  recovered,  but  in 
assumpsit  only  the  damages. 

Resp.     This  objection  holds  equally  against  all  bonds  whatsoever. 

2ud  Object.  Another  objection  was,  that  this  is  like  the  case  of  an  infant, 
who  may  make  a  promise  but  not  a  bond,  or  that  of  a  sheriff"  who  cannot 
take  a  bond  for  fees. 

Req).  The  case  of  an  infant  stands  on  another  reason,  viz.,  a  general 
disability  to  make  a  deed,  but  here  both  parties  are  capable ;  neither  is  it 
the  nature  of  the  bond,  but  merely  the  incapacity  of  the  infant,  which 
makes  a  bond  by  him  void,  since  there  a  surety  would  be  liable ;  but  it  is 
otherwise  here. 

Also  the  case  of  a  sheriff"  is  very  diff"erent;  for  at  common-law  he  could 
take  nothing  for  doing  his  duty,  but  the  statute  has  given  him  certain 
fees:  but  he  can  neither  take  more,  nor  a  chance  for  more,  than  that  allows 
him. 

3rd  Object.  It  was  further  objected,  that  a  promise  is  good,  and  a  bond 
void,  because  the  former  leaves  the  matter  more  at  large  to  be  tried  by  a 
jury;  but  what  is  there  to  be  tried  by  a  jury  in  this  case? 

(")  Post,  Grantham  v.  Gordon,  CI4. 


M  I  T  C  II  E  L    V.     REYNOLDS.  437 

i?e.«p.  1st.  It  is  to  be  tried  whether  upon  consideration  of  the  circum- 
stances the  contract  be  good  or  not  ?  and  that  is  matter  of  law,  not  fit  for  a 
jury  to  determine. 

2ndly.  It  is  to  ascertain  the  damages;  but  cui  lono  (say  they)  should 
that  be  done  ?     Is  it  for  the  benefit  of  the  obligor  ? 

Resp.  Certainly  it  may  be  necessary  on  that  account,  for  these  rea- 
sons : — 

1st.  A  bond  is  a  more  favourable  contract  for  him  than  a  promise  ;  for 
the  penalty  is  a  re-purchase  of  his  trade  ascertained  before-hand, (^(f)  and  on 
payment  thereof  he  *shall  have  it  again;  he  may  rather  choose  to  p,*iQ-|-| 
be  bound  not  to  do  it  under  a  penalty,  than  not  to  do  it  all.  L 

2ndly.      However  it  be,  it  is  his  own  act. 

Srdly.  He  can  suffer  only  by  his  knavery,  and  surely  courts  of  justice 
are  not  concerned  lest  a  man  should  pay  too  dear  for  being  a  knave. 

4thly.  Restraints  by  custom  may  (as  I  have  proved)  be  enforced  with 
penalties  which  are  imposed  without  the  party's  consent;  nay,  by  the  injured 
party  without  the  concurrence  of  the  other;  and  if  so,  then  d  fortiori  he 
may  bind  himself  by  a  penalty. 

Object.  It  may  perhaps  be  objected,  that  a  false  recital  of  a  considera- 
tion in  the  condition  may  subject  a  man  to  an  inconvenience,  which  the  law 
so  much  laboui's  to  prevent. 

Eesp.  But  this  is  no  more  to  be  presumed  than  false  testimony,  and  in 
such  a  case  I  should  think  the  defendant  might  aver  against  it ;  for  though 
the  rule  be,  that  a  man  is  estopped  from  averring  against  anything  in  his 
own  deed,  yet  that  is,  supposing  it  to  be  his  deed;  for  where  it  is  void,  it  is 
otherwise,  as  in  the  case  of  a  usurious  contract.^ 

The  application  of  this  to  the  case  at  bar  is  very  plain.  Here  the  parti- 
cular circumstances  and  consideration  are  set  forth,  upon  which  the  court  is 
to  judge,  whether  it  be  a  reasonable  and  useful  contract. 

The  plaintiff  took  a  baker's  house,  and  the  question  is  whether  he  or  the 
defendant  shall  have  the  trade  of  this  neighbourhood  ?  The  concern  of  the 
public  is  equal  on  both  sides. 

What  makes  this  the  more  reasonable  is,  that  the  restraint  is  exactly  pro- 
portioned to  the  consideration,  viz.,  the  term  of  five  years. 

To  conclude.  In  all  restraints  of  trade,  where  nothing  more  appears,  the 
law  presumes  them  bad;  but  if  the  circumstances  are  set  forth,  that  pre- 
sumption is  excluded,  and  the  court  is  to  judge  of  those  circumstances,  and 
determine  accordingly;  and  if  upon  them  it  appears  to  be  a  just  and  honest 
contract,  it  ought  to  be  maintained. 

For  these  reasons,  we  are  of  opinion,  that  the  plaintiff  ought  to  have  judg- 
ment. 


"The  general  rule  is,  that  all  re-  This  is  the  rule  which  islaid  clown  r:f.|g2i 
straiiits  of  trnde,  vvhicli  the  law  so  much  *in  the  famous  case  of  Mitchel  v.  '-  '  -■ 
favours,  if  nothing  more  appear,  are  b;id.     Reynolds,  which  is  well  reported  in  1  P. 


{a)  Sed  vide  Elardy  v.  Martin,  1  Bro.  Cha.  Rep.  419,  nole. 
t  Accord.  Collins  v.  BItiiitern,  aiilo,  p.  154,  el  notus. 


438 


smith's  leading  case 


Wms.  ISl,  in  which  Lord  Macclesfield 
Inok  such  great  pains,  and  in  which  all 
the  cases  and  arguments  in  relation  to 
this  matter  are  thoroughly  weighed  and 
considered:  but  to  this  general  rule 
there  are  some  exceptions;  as,  first,  if 
the  restraint  be  only  particular  in  respect 
to  the  time  or  place,  and  there  be  a  good 
consideration  given  to  the  party  re- 
strained. A  contract  or  agreement  upon 
such  consideration,  so  restraining  a  par- 
ticular person,  may  be  good  and  valid  in 
law,  notwithstanding  the  general  rule, 
and  this  was  the  very  case  of  Mitchel  v. 
Reynolds."  Per  Willes,  C.  J.,  in  the 
Master,  &c.  of  Gunmakers  v.  Fell,  Wil- 
les, 398.  See  Stuart  v.  Nicholson,  3 
Bing.  N.  C.  113.  The  same  principles 
are  recognised  in  the  judgment  of  the 
court  in  Gale  v.  Reed,  8  East,  83,  in  a 
variety  of  cases,  both  previous  and  sub- 
sequent, particularly  in  Chesman  v. 
Nainby,  2  Str.  739 ;  3  Bro.  P.  C.  349, 
which  received  the  successive  decisions 
of  the  King's  Bench,  Common  Pleas,  and 
House  of  Lords.  The  reader  will  find 
all  the  authorities  collected  in  Young  v. 
Timmins,  1  Tyrwh.  226, 1  C.  &  J.  331, 
and  the  rule  to  be  collected  from  them 
all  is  stated  in  that  case  by  Vaughan,  B., 
p.  241,  viz.,  "  any  agreement  by  bond  or 
otherwise  in  general  restraint  of  trade, 
is  illegal  and  void.  But  such  a  security 
given  to  effect  a  partial  restraint  of 
trade  may  be  good  or  bad,  according  as 
the  consideration  is  adequate  or  inade- 
quate." In  order,  therefore,  that  a  con- 
tract in  restraint  of  trade  may  be  valid 
at  law  (for  even  then  equity  is  loth  to 
enforce  it  specifically,  if  the  terms  be  at 
all  hard,  or  even  complex,  Kimberly  v. 
Jennings,  1  Sim.  340,  though  in  some 
cases  it  will  do  so,  per  V.  C,  Kemble  v. 
Kean,  G  Sim.  335  [VVhittaker  v.  Howe, 
3,Beav.  383],)  the  restraint  must  he  first 
partial ;  secondly,  upon  an  adequate,  or 
as  the  rule  now  seems  to  be,  not  on  a 
mere  colourable  consideration ;  and  there 
is  a  third  requisite,  namely,  that  it 
should  be  reasonable,  the  meaning  of 
which  shall  be  presently  considered. 

First,  the  restraint  must  be  partial. 
It  was  decided  so  early  as  the  reign  of 
Henry  V.  ihata  contract  imposing  a  ge- 
neral restraint  on  trade  is  void.  Indeed, 
Hall,  J.,  flew  into  a  passion  at  the  very 
sight  of  a  bond  imposing  such  a  condi- 
tion, and  exclaimed,  with  more  fervour 
than  decency :  "  A  ma  intent  vous  pur- 
res  aver  demurre  sur  luy  que  1'  obliga- 
tion est  voide  eo  que  le  conditione  est 


encounter  common  ley,  el  per  Dieu,  si 
le  plaintifif  fait  icij,  il  irra  al  prison 
tanq  il  ust  fait  fine  au  Roy^  "  The 
law,"  said  Best,  C.  J.,  in  Homer  v.  Ash- 
ford,  3  13ing.  828,  "will  not  permit  any 
one  to  restrain  a  person  from  doing  what 
his  own  interest  and  the  public  welfare 
require  that  he  should  do.  Any  deed, 
therefore,  by  which  a  person  binds  him- 
self not  to  employ  his  talents,  his  indus- 
try, or  his  capital,  in  any  *usc-  r  jjciao  i 
ful  undertaking  in  the  king-  l  '"*'  -I 
dom,  would  be  void.  But  it  may  often  hap- 
pen that  individual  interest  and  general 
convenience  render  engagements  not  to 
carry  on  trade,  or  to  act  in  a  profession, 
in  a  particular  place,  proper."  Such 
partial  restraints  were  upheld  in  Ches- 
man V.  Nainby,  in  Clerk  v.  Comer,  Cas. 
temp.  Hardw.  53,  where  a  bond  was  con- 
ditioned not  to  carry  on  trade  within  the 
city  of  Westminster,  or  bills  of  mortality; 
in  Davis  v.  Mason,  5  T.  R.  118,  and  in 
Bunn  v.  Guy,  4  East,  190,  where  an  at- 
torney bound  himself  not  to  practise 
loithin  London,  and  150  miles  from 
thence.  See  remarks  on  this  case  in 
Bozon  V.  Farlow,  Meriv.  472.  [In  Whit- 
taker  V.  Howe,  3  Beav.  383,  a  case 
which  seems  to  go  further  than  any  other, 
and  the  correctness  of  which  notwith- 
standing the  elaborate  reasoning  where- 
on the  judgment  proceeded  may  perhaps 
be  questioned,  the  agreement  was  by 
attorneys  and  solicitors  not  to  practise 
in  Great  Britain  for  the  space  of  twenty 
years  without  the  consent  of  the  gentle- 
man to  whom  they  had  sold  their  busi- 
ness, and  Lord  Langdale,  M.  R.,  "hav- 
ing regard  to  the  nature  of  the  profes- 
sion, to  the  limitation  of  time,  and  to 
the  decision  that  the  distance  of  100 
miles  does  not  describe  an  unreasonable 
boundary,"  upheld  the  contract.  In  Proc- 
tor v.  Sargent,  2  Man.  &  Gr.  31,  2  Scott, 
N.  R.  289,  S.  C,  the  contract  was  that 
the  defendant,  who  was  about  to  enter 
the  service  of  the  plaintiff,  a  cowkeeper 
and  milkman,  should  not  during  the  ser- 
vice, or  within  two  years  after  quitting 
or  being  discharged  therefrom,  carry  on 
the  business  of  a  cowkeeper,  milkman, 
milkseiler,  or  milk-carrier  within  five 
miles  of  Northampton-square.  In  Ran- 
nie  v.  Irvine,  8  Scott,  N.  R.  674,  7  Man. 
&  Gr.  969,  S.  C,  it  v>'as  against  solicit- 
ing the  custom  of,  or  knowingly  supply- 
ing bread  or  flour  to  any  of  the  custom- 
ers then  dealing  at  a  baker's  shop,  the 
lease  and  good-will  of  which  were  sold.] 
In  Leighton   v.  Wales,  3  Mee.  &  W. 


MITCH  EL     V.     REYNOLDS. 


439 


545,  (he  restraint  was  against  running 
any  coach  on  a  particular  road.  In  Gage 
V.  Reed,  8  East,  79,  the  restraint  was 
partial  in  a  difterent  way.  There  the 
defendant  covenanted  not  to  exercise  the 
bu!;iness  of  a  ropemalier  during  his  life, 
except  on  government  contracts,  and  to 
employ  the  plaintiffs  exclusively  to  make 
all  the  cordage  which  should  be  ordered 
of  him  by  his  friends  or  connexions.  The 
plamtiffs  were  to  allow  him  two  shillings 
per  cwt.  on  the  cordage  made  on  his  re- 
commendation for  such  of  his  friends  or 
connexions  whose  debts  should  turn  out 
to  be  good;  and  were  not  to  be  compel- 
led to  furnish  goods  to  any  whom  they 
should  be  disinclined  to  trust.  The 
court  held  this  agreement  good,  consid- 
ering that  they  must  construe  the  whole 
of  it  together,  and  that,  construing  it  to- 
gelher,  it  appeared  not  to  be  the  inten- 
tion of  the  plaintiffs  to  restrain  the  de- 
fendant from  supplying  such  of  his  con- 
nexions as  they  themselves  did  not  think 
fit  to  trust.  In  Ward  v.  Byrne,  5  M.  & 
VV.  561,  a  bond  conditioned  not  to  fol- 
low or  be  employed  in  the  business  of  a 
coal  merchant  for  nine  months  was  held 
void.  [So  was  a  covenant  not  to  carry 
on  the  business  of  a  brewer,  or  merchant, 
or  agent,  for  the  sale  of  ale,  in  S.  or  else- 
where, or  in  any  other  manner  soever  be 
concerned  in  the  said  business  during  a 
term  of  ten  years,  in  Hinde  v.  Gray,  I 
M.  &  Gr.  195,  1  Scott,  N.  R.  123,  S.  C. 
But  perhaps  that  might  now  be  consid- 
ered a  valid  covenant  so  far  as  it  related 
to  S.,  though  void  as  to  the  rest,  Price 
v.  Green,  16  JVI.  &  W.  396.] 

Where  the  restraint  is  partial  in  re- 
spect of  space,  the  proper  way  of  mea- 
suring the  distance  is  to  take  the  nearest 
mode   of   *access    to   the    point 


[*183] 


whence   it   is    to  be   reckoned ; 


Leigh  V.  Hind,  9  B.  &  C.  774,  4  Man, 
&  Kyi.  597,  S.  C. ;  I  by  any  of  the  usual 
public  ways;  Atkyns  v.  Kinnier,  4  E.x- 
chequer,  776.} 

Upon  the  second  point,  namely,  the 
adequacy  of  the  consideration  [some 
confusion,  rather  verbal  than  substan- 
tial, liiid  at  one  time  crept  into  the  judg- 
ments, t!]u>]  it  was  held  in  Young  v. 
Tinitnln.--,  1  Tyrwh.  226,  tliat  where  Ire- 
l:iud  l).-uii(l  himself  to  work  exclusively 
for  rertnin  persons  for  his  and  their  lives, 
they  not  undertaking  to  find  him  full 
employ,  but,  on  the  contrary,  reserving 
to  themselves  liberty  to  employ  others, 
the  contract  was  void  for  want  of  ade- 
quacy of  consideration,  though  it  con- 


tained a  proviso,  under  which  Ireland 
was  allowed  to  take  and  execute  the 
orders  of  persons  residing  in  London,  or 
within  six  miles  thereof.  "If  I  could 
find,"  said  Bayley,  B.,  "any  obligation 
on  the  defendants  to  find  the  bankrupt  a 
supply  of  work  sufficient  to  keep  hiin 
and  his  workmen  in  an  adequate  and  re- 
gular course  of  employ,  that  might  be  a 
good  consideration  for  the  restraint  he 
thus  imposes  on  himself.  Accord.  Wal- 
lis  V.  Day,  2  M.  &  W.  273.  [Pil king- 
ton  V.  Scott,  15  M.  &  W.  657.]  But  if 
no  such  thing  exists,  but,  on  the  contra- 
ry, 1  find  it  possible  that  no  employ 
might,  for  a  considerable  time,  be  given 
to  him,  then  there  is  no  adequate  consi- 
deration." "  The  restraint  on  one  side 
meant  to  be  enforced,"  said  Lord  Ellen- 
borough,  in  Gale  v.  Reed,  8  East,  8P, 
"  should  in  reason  be  co-extensive  only 
with  the  benefits  meant  to  be  enjoyed 
on  the  other." 

In  the  late  case  of  Hitchcock  v.  Coker, 
in  the  Exchequer  Chamber,  in  error  from 
K.  B.,  6  A.  «Sj,  E.  439,  it  was  contended 
that  the  court  could  not  inquire  into  the 
adequacy  of  the  consideration  when  once 
shown  to  possess  some  bona  fide  legal 
value.  That  case  perhaps  turned  less  on 
adequacy  than  reasonableness.  In  the 
course  of  the  argument,  Alderson,  B.,  ob- 
served, that  "  if  the  consideration  were  so 
small  as  to  be  colourable,  the  agreement 
would  be  bad."  In  Leighton  v.  Wales, 
3  M.  &  W.  551,  Parke,  B.,  is  reported  to 
have  said,  that  "  it  is  clear  since  the  case 
of  Hitchcock  v.  Coker,  that  the  court 
cannot  inquire  into  the  extent  or  ade- 
quacy of  the  consideration  ;"  and  in  Ar- 
cher V.  Marsh,  6  A.  &  E.  966,  the  judg- 
ment in  which  was  delayed  to  await  the 
decision  of  Hitchcock  v.  Coker,  the 
Queen's  Bench  finally  pronounced  that 
case  to  have  decided  that  the  parties 
?nust  act  on  their  own  view  as  to  the  ade- 
quacy of  the  compensation.  [And  again 
in  Pilkington  v.  Scott,  15  M.  &  W,  657, 
(where  the  contract  was  not  under  seal) 
the  same  doctrine  was  emphatically  re- 
peated, and  the  law  then  stated  by  Al- 
derson, B.,  may  now  be  considered  set- 
tled, viz.,  that  "if  it  be  an  unreasonable 
restraint  of  trade,  it  is  void  altogether ; 
but  if  not,  it  is  lawful ;  the  only  question 
being  whether  there  is  a  consideration  to 
support  it,  and  the  adequacy  of  the  con- 
sideiation  the  court  will  not  inquire  into, 
but  will  leave  the  parties  to  make  the 
bargain  for  themselves.  Before  the  case 
of  Hitchcock  v.  Coker,  a  notion  prevailed 


440 


SMITHS     LEADING     CASES. 


that  ihe  consideration  must  be  adequate 
to  the  restraint;  that  was  in  truth  the 
law  making  the  bargain,  instead  of  leav- 
ing the  parties  to  make  it,  and  seeing 
oniv  that  it  is  a  reasonable  and  proper 
bargain."  {^ee  also  Hartley  v.  Cum- 
mings,  5  C.  B.  247,  and  Sainter  v.  Fer- 
guson, 7  Id.  710,  which  again  declares 
that  the  adequacy  of  the  consideration  is 
never  to  be  looked  at. } 

If  there  be  objected  to  this  view  an  in- 
consistency with  the  decisions  that  to 
create  a  valid  restraint  of  trade  some 
consideration  is  necessary,  even  in  the 
case  of  a  contract  under  seal,  Hutton  v. 
Parker,  7  Dowl.  739,  (which  in  general 
wants  no  consideration,  Cooch  v.  Good- 
man, 2  Q.  B.  5S()),  the  answer  is  easy; 
it  is  this,  that  consideration  is  here  re- 
q'uired  for  a  different  reason  from  that 
whereon  the  ordinary  law  of  contracts 
without  consideration  rests,  the  reason 
being  that  it  would  be  unreasonable  for 
a  man  to  enter  into  such  a  stipulation 
without  some  consideration,  though  it 
must  be  left  to  his  sense  of  his  own  inte- 
rest to  determine  what  should  be  the 
amount  or  nature  of  that  consideration. 
And  this  appears  to  have  been  the  view 
taken  by  Parke,  B.,  in  Wallis  v.  Day,  2 
M.  &  W.  277,  and  by  the  Court  of  Ex- 
chequer in  Mallan  v.  May,  11  M.  &  VV. 
665,  where  Parke,  B.,  in  delivering  judg- 
ment, recognised  the  proposition  of  Tin- 
dal,  C.  J.,  in  Horner  v.  Graves,  7  Bing. 
744,  that  "contracts  in  restraint  of  trade 
are  in  themselves,  if  nothing  shows  them 
to  be  reasonable,  bad  in  the  eye  of  the 
law;"  and  proceeded  to  add,  that  "there- 
fore if  there  be  simply  a  stipulation, 
though  in  an  instrument  under  seal,  that 
a  trade  or  profession  shall  not  be  carried 
on  in  a  particular  place  without  any  re- 
cital in  the  deed,  and  without  any  aver- 
ments showing  circumstances  which  ren- 
dered such  a  contract  reasonable,  the 
instrument  is  void."  And  it  seems  not 
improbable,  now  that  the  doctrine  o'l  ade- 
quacy of  consideration  is  overturned  by 
Hitchcock  V.  Coker,  and  Archer  v. 
Marbh,  that  several  of  the  contracts 
r^.Qo  ■,  whichformerly wouldhavebeen 
'■  -■    *open  to  the  objection  of  inade- 

quacy of  consideration,  may  be  held  upon 
the  same  grounds  obnoxious  to  that  of 
unreasonableness  :  for  instance,  the  con- 
tract in  Young  v.  Timmins  vvould  pro- 
bably be  held  an  unreasonable  one,  and 
the  decision  sustained  on  that  ground. 
In  the  case  of  a  contract  under  seal,  if 
the  above  observations  be  correct,  it  may 


be  thought  to  follow  that  any  considera- 
tion on  which  a  man  might  reasonably 
act,  though  not  sufficient  to  sustain  a 
promise  not  under  seal,  ought  to  be  held 
to  satisfy  the  rule  acted  on  in  Hutton  v. 
Parker,  provided  always  that  the  deed 
be  not  open  to  either  of  the  other  objec- 
tions mentioned  in  the  note.  But  the 
decisions,  it  must  be  admitted,  do  not  ex- 
pressly warrant  that  conclusion,  and  it  is 
so  hard  to  conceive  of  a  reasonable  con- 
tract of  this  nature  without  some  con- 
sideration, that  the  precise  question  seems 
unlikely  to  arise.] 

Lastly,  it  is  not  sufficient  that  the  res- 
traint should  be  partial,  and  founded  upon 
consideration.  The  agreement  must  be 
reasonable.  "  We  do  not  see  (says  Tin- 
dal,  C.  J.,  in  Horner  v.  Graves,  7  Bingh. 
743,)  how  abetter  test  can  be  applied  to 
the  question,  whether  reasonable  or  not, 
than  by  considering  whether  the  restraint 
is  such  only  as  to  afford  a  fair  proteclion 
to  the  interests  of  the  party  in  favour  of 
whom  it  is  given,  and  not  so  large  as  to 
interfere  with  the  interests  of  the  public. 
Whatever  restraint  is  larger  than  the 
necessary  protection  of  the  party,  can  be 
of  no  benefit  to  either ;  it  can  only  be  op- 
pressive, and,  if  oppressive,  it  is  in  the 
eye  of  the  law  unreasonable.  What- 
ever is  injurious  to  the  interest  of  the 
public  is  void,  on  the  grounds  of  public 
policy.  No  certain  precise  boundary  can 
be  laid  down,  within  which,  the  restraint 
would  be  reasonable,  and  beyond  which 
excessive.  In  Davis  v.  Mason,  5  T,  R. 
118,  where  a  surgeon  had  restrained  him- 
self not  to  practise  within  ten  miles  of 
the  plaintiff's  residence,  the  restraint 
was  held  reasonable  ;  and  in  one  of  the 
cases  150  miles  was  considered  as  not  an 
unreasonable  distance,  where  an  attor- 
ney had  bought  the  business  of  another 
who  had  retired  from  his  profession.  But 
it  is  obvious  that  the  business  of  an  attor- 
ney requires  a  limit  of  a  much  larger 
range,  as  so  much  may  be  carried  on  by 
correspondence  or  by  agents.  And  un- 
less t';e  case  were  such  that  the  restraint 
was  plainly  and  obviously  unnecessary, 
the  court  would  not  feel  itself  justified 
in  interfering.  It  is  to  be  remembered, 
however,  that  contracts  in  restraint  of 
trade  are,  if  nothing  more  appears  to 
sliow  them  reasonable,  bad  in  the  eye  of 
the  law."  In  Horner  v.  Gnves,  an 
agreement  that  the  defendant,  a  surgeon 
dentist,  would  abstain  from  practising 
within  100  miles  of  York,  was  held  void, 
on  the  ground  that  the  distance  rendered 


i 


MITCH  EL     V.     REYNOLDS. 


441 


r*lR'?/1  it  nnrensonable.  ^Instances  in 
[  ia.JoJ  ^^,[jjp[|  (i^g  fjistance  has  been 
held  not  too  larg-e,  and  the  contract  consc- 
qnenliy  reasonable,  may  be  found  in 
Chesman  v.  Nainby,  Clerk  v.  Comer, 
Davis  V.  Mason,  and  Bimn  v.  Guy,  [and 
VVhitaker  v.  Howe],  above  cited.  See 
also  Leighton  v.  Wales,  3  M.  &  W.  545, 
and  Hitchcock  v.  Coker,  6  Ad.  &  Ell. 
4^9,  where  A.  in  consideration  of  B.  em- 
ploying him  as  his  assistant  at  a  salary, 
in  the  business  of  a  chemist,  agreed 
not  to  carry  on  business  within  3  miles 
of  T.,  it  was  urged  that  this  was  unrea- 
sonable, because  not  limited  to  B.'s  life 
or  continuance  in  trade.  Eut  held  good, 
for  per  Tindal,  C.  J.,  "it  does  not  appear 
to  US  unreasonable  that  the  restriction 
siiould  go  so  far  as  to  secure  to  the  mas- 
ter the  enjoyment  of  the  price  or  value 
for  which  the  trade  would  sell,  or  secure 
the  enjoyment  of  tlie  same  trade  to  his 
purchaser,  or  legatee  or  executor.  And 
the  only  effectual  mode  of  doing  so  ap- 
peared to  be  by  making  the  restriction 
of  the  servant's  setting  up  the  trade 
within  the  given  limit  co-extensive  with 
the  servant's  life."  {See  also  Hastings 
V  Whitley,  2  Exch.  611.}  See  Archer 
V.  Marsh,  6  A.  &.  E.  966,  and  Ward  v. 
Byrne,  5  M.  &  W.  548,  where  a  condi- 
tion not  lofolloiD  or  be  employed  in  the 
business  of  a  coal-merchant  for  nine 
months  was  held  unreasonable. 

[In  the  cases  of  Mallan  v.  Mav,  11  M. 
&,  W.  653,  13  M.  &  W.  511,  Green  v. 
Price,  13  M.  &  W.  695,  Price  v.  Green, 
16  M.  &L  W.  346,  but  more  especially  in 
the  highly  instructive  judgment  of  the 
Court  of  Exchequer  in  Mallan  v.  May, 
the  doctrine  of  the  principal  case  was 
much  discussed  and  fully  confirmed.  In 
Mallan  v.  May,  11  M.  &  W.  653,  the 
agreement  was  one  by  which  the  defen- 
dant was  to  become  assistant  to  the  plain- 
lifts  in  their  business  of  dentists  for  four 
years  ;  the  plaintiffs  were  to  instruct  him 
in  the  business;  and  the  defendant  cove- 
nanted not,  after  the  expiration  of  the 
term,  to  carry  on  the  same  business  in 
London  or  in  any  of  the  towns  or  places 
in  England  or  Scotland  where  the  plain- 
tiffs or  the  defendant  on  their  account 
might  have  been  practising  before  the 
expiration  of  the  service.  Parke,  B.,  in 
delivering  the  judgment  of  the  court, 
pointed  out,  that  contracts  for  the  partial 
restraint  of  trade  are  in  fact,  in  many 
cases,  beneficial  to  the  public;  and  he 
instanced  the  case  of  a  tradesman  selling 
his  shop  with  a  contract  not  to  carry  on 


the  trade  in  the  same  place,  which  is  in 
effect  the  sale  of  a  good  will,  "and  offers 
an  encouragement  to  trade  by  allowing 
a  party  to  dispose  of  all  the  fruits  of  his 
industry,"  and  also  that  of  a  manufac- 
turer or  professional  man  taking  an  as- 
sistant into  his  service,  with  astipulation 
that  he  shall  not  carry  on  the  same  busi- 
ness within  certain  limits.  "In  such  a 
case,"  said  his  lordship,  "  the  public  de- 
rives an  advantage  in  the  unrestrained 
choice  which  such  a  stipulation  gives  to 
the  *employer  of  able  assistants,  rxioo^] 
and  the  security  it  affords  that  '-  '  -" 
the  master  will  not  withiiold  from  the  ser- 
vant instruction  on  the  secrets  of  his 
trade  and  the  communication  of  his  own 
skill  and  experience,  from  the  fear  of  his 
afterwards  having  a  rival  in  the  same 
busmess."  And  the  covenant  was,  in 
that  case,  adjudged  to  be  divisible,  and 
to  be  not  an  unreasonable  restriction  so 
far  as  it  related  to  not  practising  in  Lon- 
don, though  it  was  stated  on  the  record 
that  London  had  more  than  a  million  of 
inhabitants ;  and  the  court  doubted  the 
propriety  of  taking  the  comparative  pop- 
ulousness  of  particular  districts,  the  num- 
ber of  men  of  the  same  profession,  the 
habits  ofthe  people  in  the  neighbourhood, 
or  other  like  matter  of  a  fluctuating  and 
uncertain  character  into  consideration, 
and  expressed  an  opinion  "that  it  would 
be  better  to  lay  down  such  a  limit  as 
under  any  circumstances  would  be  suffi- 
cient protection  to  the  interest  of  the 
contracting  party,  and  if  the  limit  stipu- 
lated for  did  not  exceed  that,  to  pronounce 
the  contract  to  be  valid."  On  the  other 
hand,  the  rest  of  the  covenant,  relating 
to  not  practising  in  any  of  the  towns  or 
places  in  England  or  Scotland  where  the 
plaintiff  or  the  defendant  on  their  ac- 
count might  have  been  practising  before 
the  expiration  ofthe  service,  was  holden 
unreasonable  and  void,  as  going  beyond 
what  the  protection  of  the  plaintiff's  in- 
terests could  reasonably  require,  and 
putting  into  their  hands  the  power  of 
preventing  the  defendant  from  practising 
anywhere.  In  Green  v.  Price,  13  M.  &. 
W.  695,  a  perfumer  sold  to  his  co-part- 
ner his  share  of  .the  business  ofthe  firm, 
and  covenanted  not  to  carry  on  the  same 
business  in  the  cities  of  London  and 
Westminster  or  within  601)  miles  from 
the  same  respectively,  binding  himself  to 
performance  in  a  sum  of  £5000  by  way 
of  liquidated  damages,  and  not  of  penalty. 
The  Court  of  Exchequer,  acting  upon  the 
authority  of  Mallan  v.  May,   lield   the 


442 


smith's   leading    cases. 


covenant  valid  as  to  practising  in  London 
and  Westminster,  and  merely  void  as  to 
the  residue,  and  the  defendant  being 
shown  to  have  practised  in  London,  judg- 
ment was  given  for  the  plaintiff'  for  the 
whole  amount  of  the  X5000,  which  judg- 
ment was  affirmed  in  the  Exchequer 
Chamber,  Price  v.  Green,  16  M.  &  W. 
J346.  It  may  be  worth  noticing,  that  in 
Mallan  v.  May,  13  M.  &  W.  511,  the 
word  "London"  in  the  contract  was  con- 
sidered to  mean  the  city  of  London,  that 
being  its  strict  and  proper  meaning,  and 
there  being  nothing  in  the  contract  to 
prevent  its  being  so  construed.  It  seems, 
however,  open  to  explanation  in  each 
case,  in  what  sense  the  word  is  used. 
See  Beckford  v.  Cantwell,  1  Mo.  &  Rob. 
187,  5  C.  &  P.  242,  S.  C. ;  Smith  v. 
Smyth,  10  Bing.  406.  {In  Atkyns  v. 
Kinnier,  4  Exch.  776,  a  covenant  by  a 
surgeon  not  to  practise  nor  reside  at  any 
lime  within  two  and  a  half  miles  of  the 
plaintiff''s  residence  in  London,  was  held 
valid,  and  it  was  delared  to  be  no  objec- 
tion that  the  restriction  continued  during 
the  life  of  the  covenantor,  for  that  might 
enable  the  good  will  of  the  business  to 
become  a  subject  of  sale ;  and  to  the  same 
effect  is  Sainter  v.  Ferguson,  7  C.  B. 
716.} 

Under  the  same  head  as  contracts  in 
restraint  of  trade,  may  be  classed,  those 
by  which  the  services  of  individuals  are 
secured  for  a  specified  time,  or  for  life, 
to  a  particular  master.  There  seems  to 
be  no  objection  to  such  contracts,  even 
when  they  extend  over  the  whole  period 
of  the  life  of  the  servant,  though  in  some 
countries  a  restraint  so  extensive  has  been 
considered  inconsistent  with  individual 
liberty,  and  accordingly  forbidden.  The 
question,  however,  appears  to  have  been 
long  since  settled  in  our  law,  without  re- 
gard toconsiderations  which  seem  to  em- 
brace a  shadow.  See  Wallis  v.  Day,  2  M. 
&  VV.  277.  And  in  Pilkington  v.  Scott,  15 
M.  &  W.  6.57;  and  Hartley  v.  Cummings, 
5  C.  B.  246,  agreements  whereby,  in  sub- 
stance, workmen  engaged  to  serve  for  a 
term  of  years,  certain  persons  or  their 
firm  and  no  others,  at  a  certain  scale  of 
wages,  subject  to  deteruiine  in  the  event 
of  sickness  or  incapacity  of  the  men,  or 
cessation  of  business  by  tiie  employers, 
with  power  to  the  employers  to  dismiss 
the  workmen  in  certain  events,  or  on 
certain  notice,  were  considered  open, 
neither  to  the  objection  of  want  of  mu- 
tuality, or  of  interference  with  public 
policy. 


Hero  maybe  noticed  a  dictum  in  Wal- 
lis V.  Day,  2  M.  &  W.281,  that  accord- 
ing to  15  Vincr,  823,  Master  and  Ser- 
vant, (N.)  5,  "  in  order  to  maintain  an 
action  against  a  person  who  contracts  to 
servo  for  life,  the  contract  must  be  by 
deed."  However,  all  that  was  necessary 
in  Wallis  v.  Day,  was  to  show  that  such 
a  contract  was  not  illegal,  and  not  that 
it  must  be  under  seal,  and  on  reference 
to  the  authority  mentioned  in  the  pas- 
sage from  Viner,  viz  ,  H.  2  II.  4,  fol.  14, 
pi.  12,  the  point  there  really  decided 
will  be  found  to  be,  that  an  action  of  debt 
on  simple  contract  was  not  then,  (as  it  is 
now,  by  3  &,  4  W.  4,  c.  42,  s.  14,  see 
Barry  v.  Robinson,  1  N.  R.  293,)  main- 
tainable against  executors,  and  the  pas- 
sage in  Vineritself  does  not  relate  to  the 
subject  of  Master  and  Servant  general- 
ly, but  to  the  construction  of  the  statute 
of  labourers;  so  that  the  dictum  in 
Wallis  V.  Day  can  hardly  be  considered, 
what  it  seemingly  was  not  intended  to 
be,  an  authority  for  the  proposition  that 
a  contract  to  serve  for  life  must  be  un- 
der seal. 

In  Calder  and  Hebble  Navigation  v. 
Pulling,  14  iM.  &  W.  76,  a  bye-law  of  a 
canal  company  directed  against  Sunday 
trading  and  travelling,  was  held  void 
upon  the  construction  of  the  local  act, 
which,  though  very  general  in  its  terms, 
was  considered  not  to  give  the  company 
any  power  to  restrain  the  traffic  on  the 
canal,  for  the  purpose  of  enforcing  the 
proper  observance  of  religious  duties.] 

On  the  same  reason  with  bonds  and 
contracts  in  restraint  of  trade,  stand 
perpetuities;  attempts  to  create  whicii 
are  never  permitted  by  the  law  to  suc- 
ceed, on  account  of  the  tendency  of  such 
limitations  to  paralyse  trade,  by  shack- 
ling property,  and  preventing  its  free 
circulation  for  the  purposes  of  commerce : 
for  trade  consists  in  the  free  application 
of  labour  to  the  free  circulation  of  pro- 
perty, and  any  restraint  laid  upon  the 
one  would  be  as  injurious  to  its  interests 
as  if  imposed  upon  the  other.  This  doc- 
trine of  perpetuities,  as  it  is  called,  is 
of  comparatively  modern  introduction. 
Its  objects  were  indeed,  at  a  very  an- 
cient period  of  English  law,  in  some 
degree  accomplished  by  a  maxim  which 
is  recognised  by  our  earliest  writers,  viz. 
that  property  has  certain  inseparable  in- 
cidents, among  which  is  the  right  of 
aliening  it  by  the  assurances  appropriat- 
ed by  the  law  to  that  purpose,  of  whicli 
incidents  it  cannot  be  deprived  by  any 


MITCHEL    V.    REYNOLDS. 


443 


private  disposition.  One  of  tlie  earliest 
cases  in  whicii  this  doctrine  was  main- 
tained is  reported  by  Littleton,  sect. 
*720,  who  tells  us  that  "a  certain  Jus- 
tice of  the  Common  Place  dwelling  in 
Kent,  called  Richel,  had  issue  divers 
sons  and  his  intent  was  that  his  eldest 
son  should  have  certain  lands  and  tene- 
ments to  him  and  the  heirs  of  his  body 
begotten,  and,  for  default  of  issue,  the 
remainder  to  the  second  son,  &c.,  and  so 
to  the  third  son,  &c. ;  and  because  he 
would  that  none  of  his  sons  should  alien 
or  make  warrantie  to  bar  or  hurt  the 
others  that  should  be  in  the  remainder, 
&c.,  he  causeth  an  indenture  to  be  made 
to  this  effect,  viz.,  that  the  lands  and 
tenements  were  given  to  his  eldest  son, 
upon  such  condition,  that  if  the  eldest 
son  alien  in  fee,  or  in  fee  tail,  &c.,  or  if 
any  of  the  sons  alien,  &c.,  that  then  their 
estates  should  cease,  and  be  void,  and 
that  then  the  same  lands  and  tenements 
immediately  should  remain  to  the  se- 
cond son,  and  the  heirs  of  his  body  be- 
gotten, et  sic  ultra,  the  remainder  to  his 
other  sons;  and  livery  of  seisin  was 
made  accordingly."  This  device,  how- 
ever, was  held  void ;  and  Mr.  Butler  re- 
marks, in  a  learned  note  to  Co.  Litt. 
379,  b.  the  perusal  of  which  is  strongly 
recommended  to  readers  desirous  of  pur- 
suing this  subject,  that  "this  was  one  of 
the  many  attempts  which  have  been 
made  to  restrain  that  right  of  alienation 
which  is  inseparable  from  the  estate  of 
tenant  in  tail.  The  chief  of  them  are 
stated  in  a  very  pointed  manner  by  Mr. 
Knowler,  1  Burr,  84."  Upon  the  same 
principle,  viz  ,  that  property  cannot  by 
any  private  disposition  be  robbed  of  its 
incidents,  of  which  the  power  of  aliena- 
tion is  one,  proceeds  the  case  put  by  Lit- 
tleton, at  sect.  360,  viz. :  "  Also  if  a 
feoffment  be  made  on  this  condition,  that 
Ihe  feoffee  shall  not  alien  the  land  to  any, 
this  condition  is  void  ;  because,  when  a 
man  is  enfeoffed  of  lands  or  tenements, 
he  hath  power  to  alien  them  to  any  per- 
son, by  the  law.  For,  if  such  a  condi- 
tion should  be  good,  then  the  condition 
should  oust  him  of  all  the  power  which 
the  law  gives  him,  whicii  should  be 
against  reason  ;  and  therefore  such  a 
condition  is  void."  On  which  Lord  Coke 
observes  that  "the  like  law  is  of  a  de- 
vice in  fee  on  condition  that  the  devisee 
shall  not  alien;  the  condition  is  void; 
and  so  it  is  of  a  grant,  release,  confirm- 
ation, or  any  other  conveyance,  whereby 
a  fee  simple  doth  pass;    for  it  is  absurd 


and  repugnant  to  reason  that  he  that 
hath  no  possibility  to  have  the  land  re- 
vert to  him  should  restrain  his  feofTee  in 
fee  simple  of  all  his  power  to  alien  :  and 
and  so  it  is  if  a  man  be  possessed  of  a 
lease  for  years,  or  of  a  horse,  or  of  any 
other  chattel,  real  or  personal,  and  give 
or  sell  his  whole  interest  and  property 
therein,  upon  condition  that  the  donee 
or  vendee  shall  not  alien  the  same,  the 
same  is  void;  because  his  whole  inter- 
est and  property  is  out  of  him,  so  as  he 
hath  no  possibility  of  a  reverter,  and  it 
is  against  trade  and  traffic,  and  bar- 
gaining and  contracting  between  man 
and  man.''''  On  this  doctrine,  viz.,  that 
property  cannot  be  deprived  of  the  power 
of  alienation  legally  incident  to  it,  by 
any  private  disposition,  equity  has  in- 
grafted one  exception,  by  allowing  mar- 
ried women  tobe  restrained  from  aliening, 
by  way  of  anticipation,  property  limited 
to  their  sole  and  separate  use  during  the 
coverture.  The  precise  extent  to  which 
this  equitable  doctrine  may  be  carried 
was  long  in  incerto,and  this  uncertainty 
has  given  rise  to  a  great  deal  of  inter- 
esting discussion,  a  full  account  of  which 
will  be  found  in  a  very  clearly  and  ably 
written  pamphlet  published  by  Mr. 
Hayes,  u  pon  that  subject.  See  no w  Tul- 
lett  v.  Armstrong,  before  the  L.  C,  an 
account  of  which  [in  its  earlier  stages] 
will  be  found  in  the  last  edition  of  Hayes 
on  Conveyancing.  [By  the  judgment  in 
that  case,  and  in  Scarborough  v.  Bor- 
man,  both  reported  4  Myl.  &  Cr.  377, 
the  doctrine  of  equity  respecting  pro- 
perty given  to  the  separate  use  of  a 
woman  with  a  prohibition  against  anti- 
cipation, has  been  definitively  settled 
upon  reasoning  which  applies  equally 
where  the  property  is  a  fee  or  less  estate, 
realty  or  personalty;  see  Baggett  v. 
Meux,  1  Phil.  627.  The  result  of  the 
above  cases  is,  that  where  property  of 
any  kind  is  given  or  settled  to  the  sepa- 
rate use  of  a  woman  for  any  estate,  and 
she  is  prohibited  against  anticipating  it, 
she  will,  although  discoverte  when  the 
gift  or  settlement  takes  effect,  be  effec- 
tually prevented  from  anticipating  the 
property  during  any  subsequent  cover- 
ture to  which  she  may  become  subject. 
Also,  see  Brown  v.  Bamford, '1  Phil. 
620.] 

To  return  the  head  of  Perpetuities. 
It  was  in  time  found  that  the  interests  of 
commerce  were  by  no  means  sufficiently 
guarded  by  the  assertion  of  the  maxim, 
tliat  property  could  not  be  robbed  of  the 


444 


SJIITIIS     LEADING     CASES. 


quality  of  transfcrribility  ;  for  it  would 
have  been  easy  to  limit  particular  es- 
tates in  sucli  a  manner  as  to  postpone 
the  actual  enjoyment  of  tiie  fee  so  long' 
as  to  create  what  would  have  been  vir- 
tually, though  not  nominally,  a  strict 
entail;  had  not  the  cou'ts,  proceeding 
on  the  maxim  of  law,  Quodcunquepro- 
hibelur fieri  ex  directo  pruliibetur  el  per 
obliquum,  established  as  an  inflexible 
rule,  "tliat  though  an  estate  may  be 
rendered  inalienable  during  the  exist- 
ence of  a  life,  or  of  any  number  of  lives 
in  being,  and  twenty-one  years  after; 
Cadell  V.  Palmer,  10  Bing.  140;  or,  pos- 
sibly even,  for  nine  months  beyond  the 
twenty  one  years,  in  case  the  person  ul- 
timately entitled  to  the  estate  should  be 
an  infant  in  ventre  sa  mere  at  the  time 
of  its  accruing  to  him  ;  yet,  that  all  at- 
Pl*"!!  '•*^'"P''S  ^'^  postpone  the  enjoyment 
^  "  ^  *of  the  fee  for  a  longer  period  are 
void;  and  therefore  in  the  famous  case 
of  Spencer  v.  Duke  of  Marlborough,  3 
Bro.  P.  C.  2;^2,  Eden,  404,  where  John 
Duke  of  Marlborough  devised  to  trustees 
and  their  heirs,  to  the  use  of  his  daugh- 
ter for  life,  remainder  to  Lord  Uyalton  for 
life,  remainder  to  trustees  to  preserve  con- 
tingent remainders,  remainder  to  the  first 
and  other  sons  of  Lord  Ryalton  in  tail 
male,  remainder  to  Lord  Robert  Spencer 
for  life,  remainder  to  trustees  to  preserve 
contingent  remainders,  &c.,  remainder 
to  Charles  Spencer  in  the  same  manner; 
and  inserted  a  clause,  empowering'  his 
trustees,  on  the  birth  of  each  son  of 
Lord  Kyalton,  Lords  Robert  and  Charles 
Spencer,  to  revoke  and  make  void  the 
respective  uses  limited  to  their  respec- 
tive sons  in  tail  male,  and  in  lieu  there- 
'of,  to  limit  the  premises  to  the  use  of 
such  sons  for  their  lives,  with  immediate 
remainder  to  the  respective  sons  of  such 
sons  severally  and  respectively  in  tail 
male,  Lord  Northington  declared  the 
clause  void  as  lending  to  a  perpetuity  ; 
and  on  appeal  to  the  Lords,  the  judges 
were  unanimously  of  the  same  opinion. 
See  Cruise's  Digest,  title  32,  c.  23 ; 
Beard  v.  Westcolt,  5  B.  &  A.  tiOl ;  Ca- 
dell v.  Palmer,  ubi  supra;  and  Mr.  But- 
ler's note,  Co.  Litt.  379,  b. 

Lord  Coke  has  laid  it  down,  1  Inst. 
206,  that  "  if  a  feoffee  be  bound  in  a 
bond  that  the  feoffee  and  his  heirs  shall 
not  alien,  this  is  good,  for  he  may  not- 
withstanding alien,  if  he  will  forfeit  his 
bond  that  he  himself  halh  made."  And 
in  Freeman  v.  Freeman,  2  Vern.  233,  a 
father  settled  lands  on  his  son  in  tail, 


and  took  a  bond  from  him  that  he  would 
not  dock  the  entail.  On  a  bill  to  be  re- 
lieved against  this  bond,  the  court  held 
it  good,  because,  if  the  son  had  not 
agreed  to  give  his  bond,  the  father  might 
have  made  him  only  tenant  for  life. 

It  seems,  however,  that  the  above  opin- 
ion of  Lord  Coke  cannot  be  supported  : 
for,  if  a  general  restraint  on  alienation 
be,  as  it  unquestionably  is,  contrary  to 
public  policy,  there  is  no  more  reason  for 
supporting  a  bond  made  to  enforce  it, 
than  for  supporting  a  bond  in  general  re- 
straint of  trade.  And  in  a  case  where 
A.,  having  limited  lands  to  B.  in  tail, 
took  a  bond  from  him  not  to  commit 
waste,  it  was  decreed  to  be  delivered  up 
to  be  cancelled,  the  court  saying  that  it 
was  an  idle  bond.  Jervis  v.  Bruton,  2 
Vern.  251.  So,  where  an  elder  brother 
enfeoffed  his  second  brother  in  tail,  re- 
mainder to  a  younger  brother  in  the  like 
manner,  and  made  each  of  them  enter 
into  a  statute  with  the  other  that  he 
would  not  alien  ;  because  these  statutes 
were  in  substance  to  make  a  perpetuity, 
they  were  ordered  to  be  cancelled  by  the 
Court  of  Chancery,  with  the  advice  of 
Lord  Coke  himself.  Poole's  case,  Moore, 
811). 

It  only  remains  to  remark,  that  trustn 
for  accumulation,  which,  being  thought 
to  partake  of  the  objectionable  nature 
of  perpetuities,  were  formerly  bounded 
by  the  same  limits,  (see  'I'hellusson  v. 
Woodford,  4  Ves.  jun.  227,)  are  now 
regulated  by  a  statute  of  their  own,  39 
&L  40  G.  3,  c.  98,  which  enacts  that  no 
person,  after  the  passing  of  that  act 
(28th  July,  1800),  shall,  by  any  deed  or 
will,  "settle  or  dispose  of  any  real  or 
personal  property  so  and  in  such  manner 
that  the  rents,  issues,  profits,  or  produce 
thereof  shall  be  wholly  or  partially  accu- 
mulated for  any  longer  term  than  for 
the  life  or  lives  of  any  such  grantor  or 
grantors,  settlor  or  settlors,  or  the  term 
of  21  years  from  the  death  of  any  such 
grantor  or  grantors,  settlor  or  testator, 
or  during  the  minority  or  respective  mi- 
norities of  any  person  or  persons  who 
shall  be  living  or  in  ventre  sa  mere  at 
the  time  of  the  death  of  such  grantor, 
devisor,  or  testator,  or  during  the  mino- 
rity or  respective  minorities  only  of  any 
person  or  persons  who  under  the  uses  or 
trusts  of  the  deed,  surrender,  will,  or 
other  assurance  directing'  such  accumu- 
lations, would,  for  the  time  being,  if  of 
full  age,  be  entitled  to  the  rents,  issues, 
profits,  and  produce  of  such  property  so 


MITCHEL    V.  REYNOLDS.                                       445 

directed   to  be  accumulated.      And    in  any  such  conveyance,  settlement,  or  de- 

every   case    where    any   accumulation  vise,  or  to  any  direction   touching-  the 

shall  be  directed  otherwise  than  as  afore-  produce  of  any  timber  or  wood  upon  any 

said,  such  direction  shall  be   null   and  lands  or  tenements,  but   that  all   such 

void,  and  the  rents,  issues,  profits,  and  provisions  and  directions  may  and   shall 

produce  of  such  property  so  directed  to  be  made  and  given  as  if  that  act  had  not 

be   accumulated   shall,  so  long  as  the  passed."     See,   on   the    construction  of 

same  shall   be  directed   to  accumulate  this   statute,  Griffiths  v.   Vere,  -9  Ves. 

contrary  to  the  provisions  of  this  act,  go  jun.  127;  Longden  v.  Simson,  12  Ves. 

r^ifipi  ^^  ^"'^  ^^  received  by  such  *per-  295;  Southampton  v.  Hertford,   2  V.  & 

'-        J  son   or   persons   as  would   have  B.  54;  Marshall  v.  HuIIowny,  2  Swanst. 

been  entitled  thereto,  if  such  accumula-  432;  Haley  v.  Bannister,  4  Madd.  275; 

tion  had  not  been  directed.  Shaw  v.  Rhodes,  1  Myl.  &  Cr  135.    [S. 

"Provided   always,   that   nothing   in  C.  on   appeal,    5  CI.   &  F.   114,  nom. 

that  act  contained  should  e.xtend  to  any  Evans  v.    Hellier;    Pride  v.    Fooks,   2 

provision  for  payment  of  debts  of  any  Beav.  430;   Webb  v.  Webb,   ibid.   493; 

grantor,  settlor,  or  devisor,  or  other  per-  Ellis  v.   Maxwell,  3  id.  587;  Boughton 

son  or  persons,  or  any  provision  for  rais-  v.  .lames,  1  Coll.  26;   A.  G.  v.  Poulden, 

ing  portions  for  any  child  or  children  of  3  Hare,  555;  Elborne  v.  Good,  14  Sim. 

any  person   taking  any  interest  under  165] 


In  Pierce  v.  Fuller,  8  Massachusetts,  223,  a  covenant  with  liquidated 
damages,  by  which  the  defendant,  in  consideration  of  one  dollar,  agreed  not 
to  run  a  stage  between  Boston  and  Providence,  in  opposition  to  the  plaintiff, 
was  decided,  on  demurrer,  to  be  valid :  the  court,  per  Sedgwick,  J.,  said  : 
That  contracts,  to  restrain  ti'ade  in  general,  are  unquestionably  bad ;  but 
that  contracts  for  a  limited  restraint  of  trade,  if  made  on  sufficient  and  rea- 
sonable consideration,  and  under  circumstances  appearing  to  be  fair  and 
honest,  of  which  the  court  are  to  judge,  are  valid  :  if  it  does  not  appear 
whether  the  contract  was  or  was  not  on  good  consideration,  so  that  the  con- 
tract mai/  be  either  good  or  bad,  it  is,  prima  facie,  a  presumption  of  law 
that  the  contract  is  bad,  because  it  is  to  the  prejudice  of  honest  industry, 
and  is  of  apparent  mischief  to  the  public,  and  because  the  injury  to  one 
party  is  certain,  and  the  benefit  only  presumptive;  and  therefore  all  con- 
tracts barely  in  restraint  of  trade,  where  no  consideration  is  shown,  are  bad; 
and  to  make  them  valid,  the  consideration,  and  special  circumstances  induc- 
ing the  arrangement,  must  be  shown  to  the  court,  and  approved  of  by  it. 
In  this  case,  the  agreement  appearing  to  be  a  reasonable  and  honest  one, 
the  court  decided  that  the  consideration  of  one  dollar,  having  been  fixed  and 
adopted  by  the  parties,  as  adequate,  was  sufficient  in  law.  In  Palmer  et  al. 
V.  Stebbins,  3  Pickering,  188,  a  penal  bond  to  enforce  a  similar  restraint 
was  held  good  on  similar  grounds;  and  in  this  case,  Wilde,  J.,  delivering 
the  opinion  of  the  court,  certainly  inclined  to  form  no  very  strong  presump- 
tion against  such  restraints ;  and  see  in  support  of  the  validity  of  limited 
restraints  of  trade ;  Nobles  v.  Bates,  7  Cowen,  307 ;  Pierce  v.  Woodward, 
6  Pickering,  206.  To  be  valid,  the  restraint  must  be  partial,  and  there 
must  be  such  valuable  consideration  for  the  contract,  as  is  necessary  in  other 
contracts;  but  if  the  restriction  as  to  space  be  not  unreasonable,  the  cir- 


446  smith's   leading    cases. 

cnnistancc  that  it  is  indefinite  as  to  time,  does  not  invalidate  the  contract; 
Bowser  V.  Bliss,  7  Blackford,  344,  346. 

In  CliaiDpel  v.  Brockway,  21  "Wendell,  158,  which  was  debt  on  a  penal 
bond,  the  circumstances  of  the  contract  being  similar  to  those  in  Pierce  v. 
Fuller,  except  that  the  consideration  was  large,  the  court  laid  down  the 
same  principles  as  those  above  noted  from  Pierce  v.  Fuller ;  that  contracts 
in  general  restraint  of  trade,  on  whatever  consideration  made,  are  void ; 
that  as  to  contracts  for  a  limited  restraint,  the  courts  start  with  the  presump- 
tion that  they  are  bad;  but  they  will  be  upheld  if  they  are  shown  to 
have  been  made  upon  adequate  consideration,  and  upon  circumstances 
reasonable  and  useful;  and  that  in  such  case  a  penal  bond  is  as  valid  as 
a  covenant  or  promise  :  and  with  regard  to  the  extent  of  the  restraint, 
they  considered  the  rule  to  be,  that  a  restraint  is  reasonable,  if  it  be  not 
larger  than  is  necessary  to  aflFord  a  fair  protection  to  the  other  party  in  the 
enjoyment  of  his  trade,  which  must  depend  mainly  on  the  nature  of  the 
trade  or  business.  In  Ross  v.  Sadgbeer,  id.  166,  in  debt  on  bond,  condi- 
ditioned  that  the  defendant  should  not  exercise  the  business  of  manufactur- 
ing pot  and  pearl  ashes,  &c.,  for  ten  years,  and  within  forty  miles  of  the 
village  of  L.,  the  plaintiff  demurred,  and  the  court  adjudged  the  declaration 
bad,  because  it  showed  no  sufficient  consideration  or  good  reason  for  making 
the  bond ;  and  said,  that  though  the  seal  imported  a  consideration,  so  that 
some  consideration,  and  perhaps  one  indefinitely  large  might  be  implied  from 
the  bond,  yet  it  did  not  aiford  a  presumption  of  such  circumstances  and  rea- 
sons as  are  required  to  uphold  this  sort  of  contract :  they  thought  also, 
that  if  the  bond  did  not  set  forth  the  circumstances,  the  plaintiff  might  have 
averred  them  in  the  declaration,  and,  if  good,  they  would  have  sustained 
the  agreement;  but  on  this  point  they  would  not  pass  definitely.  In 
both  of  these  cases,  doubts  were  expressed  by  Bronson,  J.,  whether  the 
nominal  consideration  in  Pierce  v.  Fuller  was  properly  decided  to  be 
sufficient. 

H.  B.  W. 


[•n87]  ===SIMPSON   V.   HARTOPP. 

MICH.  18  GEO.— 1  C.  B. 
[aEPORTED    AVILLES,    512.] 

Implements  of  trade  are  privileged  from  distress  for  rent,  if  they  be  in  actual  use 
at  the  time,  or  if  there  bo  any  other  sufficient  distress  on  the  premises. 

But  if  tliey  be  not  in  actual  use,  and  if  there  be  no  other  sufKcient  distress  on  the 
premises,  then  they  may  be  distrained  tor  rent. 


SIMPSON    V.     HARTOPP.  447 

The  opinion  of  the  court  was  delivered,  as  follows,  by 

Willes,  Lord  Chief  Justice.  Trover.  This  comes  before  the  court  on  a 
special  verdict  found  at  the  Leicester  assizes,  held  at  Leicester,  on  the  3rd 
of  August,  1743. 

The  plaintiff  declared  against  the  defendant,  for  that  on  tlie  20th  October, 
1741,  he  was  possessed  of  one  frame  for  the  knitting,  weaving,  and  making 
of  stockings,  value  20^.,  as  of  his  own  proper  goods,  and  being  so  possessed, 
he  lost  the  same,  and  that  afterwards,  to  ivit,  on  the  l8th  of  August  1742, 
it  came  to  the  hands  of  the  defendant,  who  knowing  the  same  to  be  the 
goods  of  the  plaintiif  afterwards,  to  loit,  on  the  19th  day  of  the  same  month 
of  August,  converted  the  same  to  his  own  use ;  damage  30i?. 

The  defendant  pleads  not  guilfi/ ;  and  the  jury  find  that  the  plaintiff  on 
the  27th  of  March,  1741,  was  possessed  of  one  frame  for  knitting,  weaving, 
and  making  stockings,  value  8/.  as  his  own  proper  goods.  That  upon  that 
day  he  let  the  said  frame  to  John  Armstrong,  at  the  weekly  rent  of  9f7., 
and  so  from  week  to  week,  as  long  as  they  the  said  Nathaniel  Simpson,  the 
plaintiff,  and  John  Armstrong,  should  please ;  by  virtue  of  which  letting, 
the  said  John  Armstrong  was  possessed  of  the  said  frame,  at  the  said 
rent,  until  the  time  after-mentioned,  when  the  same  was  seized  *as  |-^^„„-, 
a  distress  for  rent  by  the  defendant.  That  the  said  John  Armstrong  L  J 
is  by  trade  a  stocking-weaver,  and  used  the  said  stocking-frame  as  an  instru- 
ment of  his  trade,  and  continued  the  use  thereof,  and  his  apprentice  was 
using  the  said  stocking-frame  at  the  time  thereinafter  mentioned,  when  the 
same  was  seized  by  the  defendant  as  a  distress  for  rent.  That  the  said  John 
Armstrong  held  of  the  defendant  a  certain  messuage  and  tenement  in  the 
parish  of  Woodhouse  and  county  of  Leicester,  by  virtue  of  a  lease  to  him 
the  said  John  Armstrong  thereof  granted  by  the  defendant  under  the  yearly 
rent  of  35?.  for  a  terra  of  years  not  yet  expired,  and  was  in  the  actual  pos- 
session of  the  same  when  the  said  stocking-frame  was  distrained  for  rent  by 
the  defendant.  That  on  the  19th  of  December,  1741,  John  Armstrong  was 
indebted  to  the  defendant  in  53Z.  for  arrears  of  rent  of  the  said  messuage 
and  tenement ;  and  that  the  said  stocking-frame  was  then  upon  the  said 
messuage  in  the  possession  of  the  said  John  Armstrong,  and  that  there  were 
not  goods  or  chattels  by  law  distrainable  for  rent  in  the  said  messuage  with- 
out the  said  stocking-frame  sufficient  to  satisfy  the  said  rent  so  in  arrear,  at 
tlie  time  when  the  said  stocking-frame  was  seized  as  a  distress  for  the  said 
rent.  That  on  the  said  19th  of  December  the  defendant  entered  in  the  said 
messuage  and  tenement,  and  then  and  there  seized  the  said  stocking-frame 
on  the  said  premises  as  a  distress  for  the  said  rent  so  in  arrear,  as  the  said 
John  Armstrong's  apprentice  was  then  weaving  a  stocking  on  the  same 
frame.  And  that  the  defendant  (though  often  requested)  hath  refused  to 
deliver  the  said  stocking-frame  to  the  said  plaintiff,  and  continues  to  detain 
the  same.  The  special  verdict  concludes,  as  usual,  by  submitting  the  mat- 
ter to  the  opinion  of  the  court  whether  the  said  stocking-frame  was  by  law 
distrainable  for  the  said  arrears  of  rent  or  not;  and  if  the  said  court  should 
be  of  opinion  that  it  was  not,  they  assess  the  damages  of  the  plaintiff  at 
8?.,  &c. 

Upon  this  special  verdict  three  questions  arise  : — 

First,  "Whether  a  stocking-frame  has  any  privilege  at  all  as  being  an  in- 


448  smith's  leading  cases. 

strument  of  trade,  or  whether  it  be  genei\illy  distrainable,  for  rent  as  other 
goods  are,  even  though  there  was  suliicicnt  distress  besides, 
r^moi       Secondly,  Though  it  may  be  so  privileged  as  not  to  *be  distrain- 
L     '^   -J  able  if  there  be  other  goods  suflBcient,  yet  whether  or  not  it  may  not 
be  distrained  if  there  be  not  sufficient  distress  besides. 

Thirdly,  Though  it  be  distrainable  either  in  the  one  case  or  the  other  when 
it  is  not  in  actual  use,  yet  whether  or  no  it  has  not  a  particular  privilege  by 
being  actually  in  use  at  the  time  of  the  distress,  as  the  present  case  is. 

I  shall  but  touch  upon  the  two  first  questions,  because  they  are  not  the 
present  case ;  but  yet  it  may  be  proper  to  consider  them  a  little,  to  introduce 
the  third,  which  is  the  very  case  now  in  question. 

There  are  five  sorts  of  things  which  at  common  law  were  not  distrain- 
able : 

1st.   Things  annexed  to  the  freehold. 

2nd.   Things  delivered  to  a  person  exercising  a  public  trade,  to  be  carried, 
wrought,  worked  up,  or  managed  in  the  way  of  his  trade  or  employ, 
ord.  Cocks  or  sheaves  of  corn. 

4th.  Beasts  of  the  plough  and  instruments  of  husbandry. 
5th.  The  instruments  of  a  man's  trade  or  profession. 
The  first  three  sorts  were  absolutely  free  from  distress,  and  could  not  be 
distrained,  even  though  there  were  no  other  goods  besides. 

The  two  last  are  only  exempt  suh  modo,  that  is,  upon  a  supposition  that 
there  is  sufficient  distress  besides. 

Things  annexed  to  the  freehold,  as  furnaces,  millstones,  chimney-pieces, 
and  the  like,  cannot  be  distrained,  because  they  cannot  be  taken  away  with- 
out doing  damage  to  the  freehold,  which  the  law  will  not  allow. 

Things  sent  or  delivered  to  a  person  exercising  a  trade  to  be  carried, 
wrought,  or  manufactured  in  the  way  of  his  trade,  as  a  horse  in  a  smith's 
shop,  materials  sent  to  a  weaver,  or  cloth  to  a  tailor  to  be  made  up,  are 
privileged  for  the  sake  of  trade  and  commerce,  which  could  not  be  carried 
on  if  such  things  under  these  circumstances  could  be  distrained  for  rent  due 
from  the  person  in  whose  custody  they  are. 

Cocks  and  sheaves  of  corn  were  not  distrainable  before  the  statute  2  W. 
&  M.  c.  5,  (which  was  made  in  favour  of  landlords),  because  they  could 
not  be  restored  again  in  the  same  plight  and  condition  that  they  were  before 
r*1Qm  "P*^"^  *^  replevin,  but  must  necessarily  be  damaged  by  being 
L         J  removed. 

Beasts  of  the  plough,  &c.,  were  not  distrainable,  in  favour  of  husbandry 
(which  is  of  so  great  advantage  to  the  nation),  and  likewise  because  a  man 
should  not  be  left  quite  destitute  of  getting  a  living  for  himself  and  his 
family.  And  the  same  reasons  hold  in  the  case  of  the  instruments  of  a 
man's  trade  or  profession. 

But  these  two  last  are  privileged  in  case  there  is  distress  enough  besides; 
otherwise  they  may  be  distrained. 

These  rules  are  laid  down  and  fully  explained  in  Co.  Lit.  47,  a.,  b.,  and 
many  other  books  which  are  there  cited;  and  there  are  many  subsequent 
cases  in  which  the  same  doctrine  is  established,  and  which  I  do  not  mention 
because  I  do  not  know  any  one  case  to  the  contrary. 

From  what  I  have  said  on  this  head,  the  second  question  is  likewise  an- 
swered; for  as  the  stocking-frame  in  the  present  case  could  only  be  privi- 


SIMPSON    V.     II  A  R  T  0  P  P.  449 

leged  as  it  was  au  instrument  of  trade,  we  think  that  it  might  have  been 
distrained  if  it  had  not  been  actually  in  use,  it  being  found  that  there  was 
uot  sufficient  distress  besides.  These  are  the  words  in  Carth.  358,  in  the 
case  of  Viukinstone  v.  Ebden,  "  the  very  implements  of  trade  may  be  dis- 
trained if  uo  other  distress  can  be  taken." 

But  whether  or  no  this  stockiug-frame's  being  actually  in  use  at  the  time 
of  the  distress  gives  any  further  privilege,  is  the  third  and  principal  question 
in  the  present  case.  And  we  are  all  of  opinion  that  upon  this  account  it 
could  not  be  distrained  for  rent,  for  these  two  plain  reasons: 

1st.  Because  it  could  not  be  restored  again  upon  a  replevin  in  the  same 
plight  and  condition  as  it  was,  but  must  be  damnified  in  removing,  for  the 
weaving  of  the  stocking  would  at  least  be  stopped,  if  not  quite  spoiled, 
which  is  the  very  reason  of  the  case  of  corn  in  cocks,  &c. 

2ndly.  Whilst  it  is  in  the  custody  of  any  person,  and  used  by  him,  it  is 
a  breach  of  the  peace  to  take  it.  And  these  are  two  such  plain  and  strong 
rea.ious,  that  even  if  it  were  quite  a  new  case,  I  should  venture  to  determine 
it  without  any  authority  at  all;  but  I  think  that  there  are  several  cases  and 
authorities  which  confirm  this  opinion. 

It  is  expressly  said  in  Co.  Lit.  47,  a.,  that  a  horse  whilst  *a  man  p*-iqi-| 
is  riding  upon  him,  or  an  axe  in  a  man's  hand  cutting  wood,  and  the  L  J 
like,  cannot  be  distrained  for  rent.  In  Bracton,  and  several  other  old  books, 
there  is  a  distinction  made  between  catalla  otiosa  and  things  which  are  in 
use.  It  was  held  in  P.  14  H.  8,  pi.  6,  that  if  a  man  has  two  millstones, 
and  only  one  is  in  use,  and  the  other  lies  by  not  used,  it  may  be  distrained 
for  rent.  In  Read's  case,  Cro.  Eliz.  594,  it  was  holden  that  yarn  carrying 
on  a  man's  shoulders  to  be  weighed  could  not  be  distrained  any  more  than 
a  net  in  a  man's  hand,  or  a  horse  on  which  a  man  is  riding.  So  in  Moor, 
214,  The  Viscountess  of  Bindon's  case,  it  is  said  that  if  a  man  be  riding 
on  a  horse,  the  horse  cannot  be  distrained,  but  if  he  hath  another  horse,  ou 
which  he  rides  sometimes,  this  spare  horse  may  be  distrained. 

I  could  cite  many  other  cases  to  the  same  purpose,  but  I  think  that  these 
arc  sufficient  to  support  a  point  which  has  so  strong  a  foundation  in  reason, 
especially  since  there  is  but  one  case  seems  to  look  the  contrary  way,  which 
is  the  case  6f  Webb  v.  Bell,  1  Sid.  440,  where  it  was  holden  that  two  horses 
and  the  harness  fastened  to  a  cart  loaden  with  corn  might  be  distrained  for 
rent.  But  in  the  first  place,  I  am  not  clear  that  this  case  is  law;  and  besides, 
it  is  expressly  said  in  that  case  that  a  horse  upon  which  a  man  was  riding 
cannot  be  distrained  for  rent;  and  therefore  a  qucere  is  made  whether  if  a 
man  had  been  on  the  cart  the  whole  had  not  been  privileged,  which  is  suf- 
ficient for  the  present  purpose,  it  being  found  that  the  stocking-frame  was 
to  be  in  the  actual  use  of  a  man  at  the  time  when  it  was  distrained. 

For  these  reasons,  and  upon  the  strength  of  these  authorities,  we  are  all 
of  opinion  that  this  stocking-frame,  the  apprentice  being  actually  weaving  a 
stocking  upon  it  at  the  time  when  it  was  distrained,  was  not  distrainable  for 
rent,  even  though  there  were  no  other  distress  on  the  premises,  and  therefore 
judgment  must  be  for  the  plaintiff. 


Vol.  I.— 29 


450 


smith's  leading   cases. 


This  is  usually  cited  as  a  leading 
case,  uiienever  a  qucslion  arises  respeci- 
iuj^  the  exeniptioii  of  property  froin  dis- 
tress, and  deservedly  so,  for  it  would  be 
difficult  to  find  a  clearer  summary  of  the 
authorities,  as  they  existed  at  the  lime 
when  it  was  decided,  than  is  contained 
in  tlic  judgment  of  the  Lord  Chief  Jus- 
tice. "It  is,"  said  Buller,  J.,  4  T.  R. 
r)GS,  "a  case  of  great  authority,  because 
it  was  twice  argued  at  the  bar;  and  Lord 
r*IQ21  Chief  Justice  Willes  took  infinite 
■-  ^  pains  to  *trace  with  accuracy 
those  things  which  are  privileged  from 
distress." 

There  are,  according  to  his  lordship, 
five  sorts  of  property  privileged  from 
distress  for  rent  by  the  common  law,  and 
to  these  the  judgment  in  the  principal 
case  authorizes  us  to  add  a  sixth.  The 
list  then  will  stand  thus: — 

Things  ahsolutcly  inivileged  at  com- 
mon law. 

1.  Tilings  annexed  to  the  freehold. 

2.  Things  delivered  to  a  person  exer- 
cising a  public  trade ,  to  be  carried, 
wrought,  worked  up,  or  nrannaged  in 
the  way  of  his  trade  or  employ. 

3.  Cocks  and  sheaves  of  corn. 

4.  Tilings  in  actual  use. 

With  respect  to  the  first  class,  viz. 
jixtures.  It  was  always  held  for  clear 
law,  that  they  were  not  dislrainable,  for 
the  reason  stated  by  the  Chief  Justice; 
see  4  T.  R.  567;  and  there  is  a  distinc- 
tion in  this  respect  between  a  distress 
and  an  execution;  for,  under  the  latter, 
fixtures,  which  would  be  removable  by 
the  defendant,  as  between  him  and  his 
lessor,  may  be  seized;  Poole's  case,  1 
Sal.  3G8.  See  3  Atk.  13,  3  B.  &  C. 
30S  ;  [Place  v.  Fagg,  4  Man.  &  Ry. 
277]:  and  so  may  growing  corn.  Ibid., 
though  neither  the  tenant's  fixtures,  nor 
the  growing  corn,  would  at  common  law 
have  been  dislrainable,  [Darby  v.  Harris, 
1  Q.  B.  69.^ ;  Dalton  v.  Whitten,  3  Q. 
B.  961].  However,  as  respects  the 
growing  corn,  the  law  is  now  altered  by 
St.  11  G,  2,  c.  19,  s.  8,  which  enacts 
that  landlords  or  their  bailiffs,  or  other 
persons  empowered  by  them,  may  dis- 
train corn,  grass,  or  other  product  grow- 
ing on  any  pari  of  the  land  demised. 
The  words  other  product  have  been  ex- 
plained to  apply  only  to  other  product 
of  a  nature  similar  to  the  things  speci- 
fied, that  is  to  say,  product  to  which 
the  process  of  ripening,  and  being  cut, 
gathered,  made,  and  laid  up  when  ripe, 
is  incidental.  Therefore,  trees  or  slirubs 


growing  in  a  nursery  ground  are  not 
dislrainable  under  this  statute.  Clark 
V.  (jaskarth,  8  'J'aunl.  43L  See,  too, 
the  further  qualifications  introduced  by 
56  G.  3,  cap.  50,  sec.  6,  and  see  Wright 
V.  Dewes,  1  A.  &  E.  641 ;  and  see  1  iVI. 
&L  Wels.  448.  In  a  late  case  in  the  Court 
of  Exchequer,  where  A.  T.  had  grant- 
ed to  B.  H.  an  annuity,  charged  on  cer- 
tain premises,  and  empowered  him  to 
distrain  for  the  arrears,  and  "  to  detain, 
manage,  sell,  and  dispose  of  the  dis- 
tresses in  the  same  manner,  in  all 
respects,  as  distresses  for  rents  reserved 
upon  leases  for  years,  and  as  if  the  said 
annuity  was  a  rent  reserved  ujion  a  lease 
for  years,"  the  court  thought  that  these 
words  did  not  empower  the  grantee  to 
distrain  growing  crops,  but  only  con- 
ferred upon  him  the  powers  given  to 
landlords  by  slat.  2  W.  &  M.  cap.  5. 
Miller  v.  Green,  2  Tyrwh.  1,  2  C.  &,  J. 
143,  8  Bing.  92.  [See  Johnson  v.  Faulk- 
ner, 2  Q.  B.  923.] 

2d.  Things  delivered  to  a  person  ex- 
ercising  a  public  trade  to  be  carried, 
ivrought,  loorked  up,  or  managed  in  the 
way  of  Ids  trade  or  employ.  That  this 
class  of  property  is  exempt  from  distress 
has  never  been  questioned.  See  Gisbourn 
V.  Hurst,  Salk.  249;  1  Inst.  47,  a.;  [and 
Gibson  v.  Ireson,  3  Q,.  B.  39,  in  which  the 
meaning  of  the  phrase  "  public  trade" 
was  discussed.]  But  the  dispute  has 
always  been  in  ascertaining  whether  the 
goods  in  each  particular  case,  were  so 
circumstanced  as  to  fall  within  it.  The 
examples  commonly  cited  as  being  clear- 
ly within  the  rule,  are  those  of  cloth 
bailed  to  a  tailor  to  make  a  garment,  or 
a  horse  standing  in  a  smith's  shop  to  be 
shod  ;  so,  too,  goods  of  the  principal  in 
the  factor's  hands  cannot  be  distrained 
by  the  factor's  landlord;  Gilman  v.  El- 
ton, 3  B.  &  B.  75  ;  for  the  advancement 
of  trade  as  much  requires  that  goods 
should  be  placed  in  a  factor's  hands  for 
sale,  as  in  a  carrier's  for  carriage;  and, 
on  the  same  principle,  goods  deposited 
for  safe  custody  in  a  warehouse  or  a 
wharf  would  not  be  dislrainable  for  rent 
due  in  respect  thereof  Thompson  v. 
Mashiter,  1  Bingh.  2S3.  Mathias  v. 
Mesnard,  2  C.  &  P.  353.  Lately,  also, 
it  has  been  decided  that  goods  deposited 
on  the  premises  of  an  auctioneer,  for  the 
purpose  of  sale,  are  privileged  from  a 
distress  for  rent  due  in  respect  of  those 
premises;  Adams  v.  Grane,  3  Tyrwh. 
326;  1  C.  &  M.  390;  for,  to  use  the 
words  of  Bayley,  B.,  "  Interest  reipub- 


SIMPSON     V.     HARTOPP. 


451 


liccB  to  bring'  buyers  and  sellers  too-e- 
ther  at  fixed  places,  where  goods  may  be 
brought  for  the  purposes  of  sale  and  ex- 
change.    This  privilege  is,  therefore,  of 
great  importance  to  the  owners  of  goods, 
who  should  not  be  exposed  to  the  risk  of 
losing   them,    from   the   default  of  the 
parties  on  whose  premises  they  may  be 
deposited  for  that  purpose."     [And  the 
Court  of  Queen's  Bench  have  applied 
the  same  law  to  the  case  of  a  commis- 
sion agent.     Finden  v.  M'Laren,  6  Q. 
B.  891.]     In  Brown  v.  Shevill,  2  Adol. 
P^,Qo-|  &,  Ell.  138,  a  beast  was  *sent  to 
L         J  the  premises  of  VVoodham,  to  be 
slaughtered,    and    after    it    had    been 
slaughtered,  the  carcass  was  seized  for 
rent  due  by  Woodham.     The  Court  of 
King's  Bench  held  that  it  was  not  dis- 
trainable.     This  species  of  privilege,  as 
is  remarked  by  Bayley,  B.,  in  his  judg- 
ment  in  Adams  v.  Grane,  "has   been 
from  time  to  time  increased  in  extent, 
according   to  the    new  modes  of  deal- 
ing established  between  parties  by  the 
change  of  time  and  circumstances,  one 
of  which  modern  modes  of  dealing  is  the 
case  of  a  factor."     His  lordship,  in  the 
same  case,  cites  and  approves  an  obser- 
vation made  by  Mr.  J.  Blackstone,  in  his 
Commentaries,    that    "the    exemption 
from  liability  to  distress,  in  a  case  of  this 
sort,  occasions  no  hardship,  because  the 
privilege    is    generally     applicable    to 
goods  which  no  man  could  possibly  sup- 
pose to  be  the  property  of  the  individual 
from  whom  the  rent  is  due."     In  Mus- 
pratt  V.  Gregory,  1  M.  &.  Wels.  633,  it 
was  held  by  the  Exchequer,  Parke,  B., 
dissentiente,  and  confirmed   in  Error,  3 
Mee.  &  W.  678,  that  a  barge,  which  a 
person  meaning  to  purchase  salt  sent  to 
the  Salt-works  to  carry  it  home,  was  not 
privileged    from  distress  for  the  arrears 
of  a  rent-charge.     Vide  tamen,as  to  the 
case  of  a  carriage  actually  containing 
privileged  goods.     Rede  v.  Barley,  Cro. 
Eliz.596;  Gisbourn  v.  Hurst,  Salk.  243. 
[The  same  court  subsequently  held  in 
Joule  V.  Jackson,  7  M.  &  W.  450,  that 
brewers'    casks    left   according    to    the 
usage  of  trade  on  a  publican's  premises 
with  beer  were  not  privileged.] 

In  the  case  of  Francis  v.  Wyatt,  1  Bl. 
R.  483,  3  Burr.  1498,  the  court  seemed 
strongly  inclined  to  think  that  a  carri- 
age standing  in  the  yard  of  a  livery 
stable  was  distrainable  for  rent  due  to 
his  landlord  by  the  keeper  of  the  livery 
stable  ;  [and  that  opinion  was  approved 
and  acted  upon  in  Parsons  v.  Gingell,  4 


C.  B.  545.     And  in  Wood  v.  Clarke,  1 
Tyrwh.  314,  1  C.  &  J.  4S4,  it  was  held 
that,  though    materials  delivered   by  a 
manufacturer  to  a  weaver,  to  be  by  him 
manufactured  at   his  own   home,   were 
privileged    from    distress   for   rent   due 
from  the   weaver  to  his  landlord,  [See 
Gibson  v.  Ireson,  3  Q.  B.  39.]  yet  that  a 
frame  or  other  machinery  delivered  by 
the   manufacturer  to  the   weaver  along 
with  the   materials,  for  the  purpose  of 
being  used  in  the  weaver's  house  in  the 
manufacture  of  such  materials,  was  not 
privileged,     unless    there    were    other 
goods   upon    the    premises   sufficient  to 
satisfy  the  rent  due.     "  This  ciise,"  said 
Lord  Lyndhurst,  delivering   the  judg- 
ment of  the  court,  "does  not  turn  upon 
the  privilege  of  a  workman  with  respect 
to  the   implements  and    maciiinery   by 
which   his  trade  is  to  be  carried  on,  but 
upon  the  privilege  of  the  person  by  whom 
the  workman  is  employed.     The  plain- 
tiffs, who  were  the  employers,  furnished 
the  workman  not  only  with  the  materia's 
on  which  he  was  to  work,  but  also  wilh 
the  machinery  by   which  the   materials 
were  to  be  worked  up.     The  question  is 
as  to  the  extent  of  the  employer's  privi- 
lege, whether  it  is   confined  to  the  ma- 
terials which  he  supplies,  or  applies  also 
to  the  machinery  by  which  the  vvorking- 
up  is  effected.     It  appears  to  us  that  it 
is  confined  to  the  materials,  and  does  not 
include  the  machinery."    ..."  None 
of  the   cases  go  beyond  this:  that  the 
material  to  be  worked  up  is  privileged; 
that  the  conveyance  by  which  it  is  car- 
ried to  and  from   the  place  of  manufac- 
ture is  privileged  ;  that  it  is  privileged 
in  the  hands  of  the  carrier  while  Ii6  is 
carrying  it,  in  the  hands  of  the  factor  to 
whom  it  is  consigned,  and  in  the  hands 
and  warehouse  of  a  wharfinger,  where 
it  is  lodged  and  deposited  by  the  factor. 
There  is  no  case  or  dictum  that  the  nia- 
chinery  by  which  it   is  to  be  manufac- 
tured is  included  in  the  privilege."  This 
decision  is  approved  in  Fenton  v.  Logan, 
9  Bing.  676. 

[As  to  the  mode  of  pleading  this  class 
of  exemption  see  Gibson  v.  Ireson,  3  Q,. 
B.  39] 

3.  Cocks  and  sheaves  of  corn. 
See  Wilson  v.  Ducket,  2  Mod.  61. 
The  reason  for  this  exemption  was,  that 
the  distress  being  at  common  law  merely 
a  pledge,  thinii'S  were  held  not  to  be  dis- 
trainable which  could  not  be  restored  in 
the  same  plight  as  they  were  in  at  the 
time  of  taking  them.     But  by  2  W,  & 


452 


SMITHS     LEADING     CASES. 


M.  c.  5,  8lie;ivG.s  or  cocks  of  coin,  or 
loose  corn  and  liay  lyiriij  upon  nny  part 
of  the  land  cliarged  with  the  rent,  may 
be  seized,  secured,  and  locked  np  in  the 
place  where  found,  in  the  nature  of  a 
distress,  until  replevied;  but  the  same 
must  not  be  removed,  to  the  damage  of 
the  owner,  from  such  place;  and  the 
landlord  has,  as  it  would  seem,  no  op- 
tion, but  must  sell  at  the  expiration  of 
live  days,  per  Parke,  B.,  1  M.  &,  Wels. 
448.  [The  benefit  of  this  statute,  at  all 
events  since  4  Geo.  2,  c.  23,  s.  5,  ex- 
tends to  the  grantee  of  a  rent  charge, 
though,  according  to  Miller  v.  Green, 
above  cited,  st.  11  G.  2,  c.  19,  s.  8,  docs 
not.  Johnson  v.  Faulkner.  2  Q,.  B.  923.] 

4.    Things  in  actual  use. 

These,  as  the  text  informs  us,  are  pri- 
vileged in  order  to  prevent  the  breach 
of  the  peace  which  might  be  occasioned 
by  an  attempt  to  distrain  them.  [See 
Field  v.  Adames,  12  A.  &  E.  652,  where 
a  replication  that  the  things  were  in 
actual  use  was  held  good  ;  and  Bond 
V.  Kennington,  1  Q.  B.  G79,  where 
it  was  bad  for  want  of  sufficient  aver- 
inenls.] 

The  above  four  sorts  of  property  are 
the  only  sorts  where  absolute  freedom 
from  distress  could  be  deduced  from 
Simpson  V.  Hartopp;  it  is,  however, 
proper  to  observe,  that  there  are  two 
other  descriptions  of  goods  absolutely 
privileged  from  distress  at  common  law  : 
1st,  Animals  /erce  nalurcB,  and  other 
things,  wherem  no  valuable  property  is 
[-;^.,y,-|  in  any  person.  Finch,  176;  *Bro. 
L  ^^'*-'  Abr.,  Property,  pi.  20;  Com.  Di. 
Dist  C;  Keilway,  30,  b. ;  Co.  Lit.  47, 
a. ;  1  Rolle's  Abr.  666.  But  deer  in  an 
enclosed  ground  [not  being  a  park]  do 
not  tall  within  this  exemption,  Davies 
V.  Powell,  Willes,  47.  2ndly,  Things 
in  the  custody  of  the  law,  such  as  pro- 
perty already  taken  damage  feasant  or 
in  execution,  llnst.  47,  a. ;  Gilb.  I)ist. 
cd.  1757,  p.  44;  Eaton  v.  Southby,  Wil- 
les, \'M  ;  Peacock  v.  Purvis,  2  B.  &,  B. 
;362;  Wright  v.  Dewes,  1  Ad.  &  El. 
641.  [Goods  seized]  by  the  messenger 
under  a  fiat,  are  not  considered  to  be  in 


custodia  legis,  for  this  purpose,  Briggs 
V.  Sowry,  8  .M.  &  W.  729.] 

Next  with  respect  to  property  con- 
ditionally privileged.  Ot  this  the  Chief 
Justice  enumerates  two  classes: 

1.  Beasts  of  the  plough  and  instru- 
ments of  hu.sbandry.  [See  Davies  v. 
Aston,  1  C.  B.  746.] 

2.  The  instruments  of  a  man's  trade 
or  profession. 

These  two  species  of  property  arc 
privileged,  provided  that  there  be  other 
distress  upon  the  premises.  Seel  Inst. 
47,  a.,  b.,  Fenton  v,  Logan,  9  Bingh. 
676;  Gorton  v.  Falkner,  4  T,  R.  565. 
It  is,  however,  settled  that  beasts  of  the 
plough  may  be  distrained  for  poor  rates, 
though  there  are  other  distraiiiable 
goods  on  the  premises,  more  than  sufH- 
cient  to  answer  the  value  of  the  demand, 
Hutchins  v.  Chambers,  1  Burr.  579. 
This  decision  proceeded  on  the  analogy 
between  such  a  distress  and  an  execu- 
tion. It  must  further  be  observed,  with 
respect  to  things  privileged  sub  modo, 
that,  even  though  there  be  a  sufficient 
distress  besides,  yet  if  that  distress  cou- 
.sist  of  growing  crops,  which  are  only 
dislrainable  by  statute,  and  are  not  imme- 
diately productive,  the  landlord  is  not 
bound  to  avail  himself  of  it,  but  maydi.s- 
train  the  things  privileged  sub  modo, 
Pigott  V.  Birlles,  1  M.  &  Wels.  44h 
And  possibly  the  principle  of  this  deci- 
sion may  hereafter  be  thought  to  extend 
to  every  case  of  a  distress  given  by  sta- 
tute but  not  liable  to  precisely  the  same 
rules  of  treatment  as  a  distress  at  com- 
mon law. 

To  the  above  exceptions  it  may  be 
well  to  add,  that  if  a  landlord  either  ex- 
pressly or  uiipliedly  consent  that  chattels 
placed  by  a  stranger  on  the  tenant's  land 
shall  be  exempt  from  his  distress,  it 
appears  from  Horsford  v.  Webster,  5 
Tyrwh.  409,  1  C.  M.  &  R.  696,  S.  C. 
that  he  will  be  a  trespasser  if  he  detain 
them.  In  that  case  Parke,  B.,  difl^'ered 
from  the  rest  of  the  court,  conceiving 
that  the  consent  was  not  made  out  un- 
der the  circumstances.  [See  Walsh  v. 
Rose,  6  Bing.  638.] 


The  general  rule  is,  that  all  chattels  found  on  the  demised  premises 
during  the  term,  are  liable  to  a  distress  for  rent  due  the  landlord,  whether 
they  are  the  property  of  the  tenant  or  of  a  stranger;  Kissler  v.  M'^Couachj, 
1  llawle,  435,;  Shearer  v.  M'Growen,  13  Wend.  250;  Stevens  v.  Lodge,  7 


SIMPSON    V.     IIARTOPP.  453 

Blackford,  59 ;  Harris  v.  Boggs,  5  id.  489 ;  Haskins  v.  Paul,  4  ILilstcd, 
113;  llecves  v.  M'Kentie,  1  Bailey,  497;  Herrie  v.  Wickliam,  G  Leigh, 
236;  Elford  v.  Clark,  2  Brevard,  88.  But  there  are  certain  exceptions  to 
this  rule,  arising  either  from  the  nature  or  position  of  the  chattels  them- 
selves, or  from  the  circumstances  under  Avhich  they  have  been  brought 
within  the  reach  of  the  distress. 

The  most  general  ground  on  which  property  is  exempted  from  the  right 
of  distress,  is  founded  on  the  nature  of  the  right  itself,  which  originally  went 
no  further  than  to  entitle  the  landlord  to  take  and  withhold  possession,  as  a 
means  of  compelling  the  payment  of  the  rent,  and  contemplated  a  return  to  the 
tenant  as  soon  as  the  rent  was  paid.  Hence  nothing  could  be  distrained  which 
was  insusceptible  of  being  restored  in  the  same  plight  as  when  taken.  And 
although  the  law  has  now  made  a  power  of  sale,  as  incident  to  a  distress,  yet 
this  has  not  altered  the  relations  between  the  parties,  because  the  tenant  may 
still  replevy  or  redeem  the  goods  before  they  are  sold;  Griven  v.  Bland,  3 
Blackford,  G4;  Darby  v.  Harris,  1  Q.  B.  895.  Thus,  it  was  held,  in  Given  v. 
Bland,  that  cocks  and  sheaves  of  corn  are  not  distrainable,  because  they 
cannot  be  removed  and  restored  without  loss.  And  in  Morley  v.  Pencombe, 
2  Exchequer,  101,  the  carcases  of  slaughtered  animals  were  held  within  the 
same  principle,  as  being  manifestly  incapable  of  being  kept  for  any  time 
without  putrefaction. 

Fixtures  are  emphatically  within  the  operation  of  this  principle,  because  a 
large  part  of  their  value  necessarily  consists  in  their  adaptation  to  the  place 
where  they  are  erected,  and  the  special  purpose  for  which  they  are  used. 
And  as  they  are,  moreover,  attached  to  the  land,  and  part  of  the  free- 
hold, they  have  the  character  of  realty  rather  than  of  personalty,  and  are 
not  within  the  definition  of  things  distrainable.  Hence,  nothing  is  better 
settled,  than  that  they  cannot  be  taken  down  or  removed  by  the  landlord 
for  the  purpose  of  a  distress,  even  where  they  are  of  such  a  character  as  to 
be  removable  by  the  tenant  at  the  end  of  the  term,  or  to  pass  to  the  exe- 
cutor, and  not  to  the  heir ;  Darby  v.  Harris,  1  Q.  B.  895  ;  Reynolds  v. 
Shuler,  5  Cowen,  323.  If,  however,  their  connexion  with  the  realty  be 
severed  for  any  other  than  a  temporary  purpose,  and  with  a  view  to 
replace  them,  they  will  acquire  the  character  of  chattels,  and  as  such  may 
be  distrained  by  the  landlord  on  the  premises,  or  off  them,  if  fraudulently 
removed  by  the  tenant ;  Reynolds  v.  Shuler. 

Goods  may  also  be  exempt  from  distress,  in  consequence  of  the 
peculiarity  of  their  position,  which  renders  a  distress  improper,  or 
inconvenient.  Goods  in  actual  use  cannot,  therefore,  be  distrained,  be- 
cause the  attempt  to  exercise  the  right  of  distress  under  such  circum- 
stances, might  give  rise  to  a  breach  of  the  peace,  and  the  private  right  is 
consequently  postponed  to  considerations  of  general  policy.  Thus,  in 
Field  V.  Adames,  1  A.  &  E.  449,  a  replication  that  the  horse  and  wagon 
distrained,  were  in  the  actual  possession  of  the  plaintiff,  and  in  use  by  him 
at  the  time  of  the  distress,  was  held  sufficient  to  show  that  the  distress  was 
wrongful,  although  a  similar  replication  was  held  insufficient  in  Bunch  v. 
Kennington,  1  Q.  B.  679,  with  regard  to  a  dog,  apparently  because  use  docs  not 
imply  manual  possession  in  the  one  case  as  it  does  in  the  other.  And  it  is  well 
settled,  that  goods  which  have  been  seized  under  an  execution  or  attach- 


454  smith's    leading   cases. 

raent,  are  in  the  custody  of  the  law,  and,  therefore,  beyond  the  reach  of  a 
distress;  Hamilton  v.  Reedy,  3  McCord,  38  ;  Pierce  v.  Scott,  4  W.  &;  S. 
344  •  and  this  doctrine  was  applied  in  ^Milliken  v.  Selye,  G  Hill,  623,  to 
goods  seized  under  a  writ  of  replevin,  but  left  on  the  premises.  This  ex- 
emption will  enure  in  favour  of  a  purchaser  under  the  execution  ;  Peacock 
V.  Purvis,  2  Brod.  &  Bing.  362,  notwithstanding  the  omission  of  the  sheriff 
to  pay  a  year's  rent  to  the  landlord,  agreeably  to  the  provisions  of  the  statute 
8  Anne,  c.  14 ;  Wharton  v.  Naylor,  12  Q.  B.  673 ;  but  may  be  forfeited 
by  a  failure  to  remove  the  goods  from  the  premises,  within  a  reasonable 
time  after  the  sale;  Gilbert  v.  Moody,  17  Wend.  354. 

The  exemptions  from  distress,  hitherto  considered,  are  founded  upon  the 
nature  or  position  of  the  property  exempted,  and  apply  equally,  whether  it 
belongs  to  the  tenant  or  a  third  person.  But  there  is  another  ground  of 
exemption,  which  only  applies  where  the  goods  of  third  persons  are  placed 
in  the  hands  of  the  tenant,  in  the  way,  or  for  the  purposes  of  his  trade  or 
business.  This  right  of  exemption  is  well  established,  both  in  this  country 
and  England,  although  the  courts  here  apply  it  in  some  cases,  which  are 
held  not  to  admit  of  its  application  there,  (supra.) 

It  is  held  in  both  countries,  that  goods  sent  to  a  manufacturer  in  the  way 
of  his  business  ;  Haskins  v.  Paul,  4  Halsted,  13,  or  deposited  with  a  factor, 
or  auctioneer,  for  sale,  are  within  this  exception;  Connah  v.  Hale,  23 
W^end.  462 ;  Himely  v.  Wyatt,  1  Bay,  102 ;  Walker  v.  Johnson,  4  M'Cord, 
552 ;  and  the  same  thing  has  been  held  as  to  merchandise  deposited  in  a 
warehouse  for  safekeeping,  and  not  for  sale  ;  Owen  v.  Boyle,  22  Maine,  47 ; 
Brown  v.  Sims,  17  S.  &  R.  138.  So  far  the  English  and  American  decisions 
accord  with  each  other.  But  in  deciding  the  case  of  Brown  v.  Sims,  Gibson, 
C.  J.,  expressed  the  opinion,  that  where  the  landlord  is  aware  that  the  course 
of  the  tenant's  business  must  necessarily  put  him  in  possession  of  the  goods 
of  third  persons,  he  ought  not  to  be  allowed  to  distrain  them  for  rent. 
It  was  accordingly  held,  in  Riddle  v.  Welden,  5  Wharton,  9,  that  the  effects 
of  a  boarder  in  a  lodging-house,  could  not  be  seized  for  the  rent  due  by  the 
keeper  of  the  house ;  and  it  was  said  that  every  thing  put  on  rented  premises 
by  a  customer  in  the  way  of  the  tenant's  business,  is  exempt  from  distress. 
It  was  held,  in  like  manner,  in  Youngblood  v.  Lowry,  2  M'Cord,  39,  that  a 
horse  placed  in  the  hands  of  a  livery -stable  keeper,  in  the  way  of  his  busi- 
ness, was  not  liable  to  a  distress. 

The  goods  of  a  lodger  in  a  boarding-house  are  exempted  from  distress, 
in  New  York,  by  the  provisions  of  the  Revised  Statutes.  But  it  was 
held,  in  Stone  v.  Matthews,  1  Hill,  575,  that  these  provisions  do  not  apjDly, 
where  the  goods  are  in  the  use  and  occupation  of  the  keeper  of  the  house, 
with  the  consent  of  the  lodger.  The  Court  of  Errors  subsequently  differed 
in  opinion  on  this  point,  and  the  case  was  finally  reversed  on  another;  Stone 
v.  Matthews,  7  Hill,  428. 

It  is  generally  admitted,  that  the  purpose  with  which  goods  are  deposited 
in  the  hands  of  a  tenant,  will  not  protect  them,  unless  it  be  one  which 
accords  with  the  course  of  his  business,  instead  of  being  peculiar  to  the 
transaction  in  which  the  deposit  is  made;  Bevan  v.  Crooks,  7  W.  &  S.  452. 
But  in  Connah  v.  Hale,  23  Wend.  462,  the  right  of  exemption  was  held  to 
be  sufficiently  made  out,  by  showing,  that  although  the  tenant  was  a  wine- 


OMICHUND     V.     BARKER.  455 

merchant,  he  was  in  the  habit  of  receiving  goods  for  storage  and  sale  on 
commission,  and  appropriated  a  room  in  his  store  especially  to  that  pur- 
pose. 

H. 


*OMICHUND    V.    BARKER  [==195] 

IL.  18  GEO.  2.— IN  CHANCERY. 

[REPORTED  WILLES,  538.] 

The  depositions  of  witnesses  professing  the  Gentoo  religion,  who  were  sworn 
according  to  the  ceremonies  of  their  religion,  taken  under  a  commission  out  of 
Chancery,  admitted  to  be  read  as  evidence. 

Several  persons  resident  in  the  East  Indies,  and  professing  the  Gentoo 
religion,  having  been  examined  on  oath  administered  according  to  the  cere- 
monies of  their  religion,  under  a  commission  sent  there  from  the  Court  of 
Chancery,  it  became  a  question  whether  those  depositions  could  be  read  in 
evidence  here :  and  the  Lord  Chancellor  conceiving  it  to  be  a  question  of 
considerable  importance,  desired  the  assistance  of  Lee,  Lord  Chief  Justice, 
B.  R.,  Willes,  Lord  Chief  Justice,  C.  B.,  and  the  Lord  Chief  Baron  Parker, 
who,  after  hearing  the  case  argued,  were  unanimously  of  opinion  that  the 
depositions  ought  to  be  read. 

The  case  is  shortly  reported  in  1  Wils.  84,  and  more  fully  in  1  Atk.  21. 
The  following  opinion  was  delivered  by  Willes,  Lord  Chief  Justice,  C.  B 
"  I  could  satisfy  myself  by  merely  saying  that  as  to  the  present  question  I 
am  of  the  same  opinion  as  the  Lord  Chief  Baron;  but  as  this  is  in  a  great 
measure  a  new  case,  as  it  is  a  question  of  great  importance,  and  as  so  much 
has  been  said  by  the  counsel  on  both  sides,  I  believe  it  will  be  expected 
that  I  should  give  my  reasons  for  the  opinion  which  I  am  going  to  give, 
though  in  the  course  of  my  argument  I  must  necessarily  touch  upon  many 
things  that  have  been  already  better  expressed  by  the  Lord  Chief  Baron. 

Though  it  be  necessary  only  to  give  my  opinion  whether  the  depositions 
taken  in  the  present  case  can  be  read  or  not,  *yet  it  may  be  proper,  p*-iQo-| 
in  order  to  come  at  this  particular  question,  in  the  first  place  to  ■- 
ennsidcr  the  general  question,  whether  an  infidel,  I  mean  one  who  is  not  a 
Christian,  for  in  that  sense  Lord  Coke  certainly  meant  it,  can  be  admitted 
as  a  witness  in  any  case  whatsoever.  If  I  thought  with  my  Lord  Coke  that 
he  could  not,  I  must  necessarily  be  of  opinion,  that  the  depositions  in  the 
present  case  could  not  be  read  as  evidence.    On  the  other  hand,  if  I  thought 


456  SMITU'S     LEADING     CASES. 

tbat  infidels,  in  all  cases  and  under  all  circumstances,  ought  to  be  admitted 
as  witnesses,  the  consequence  would  be  as  strong  the  other  way,  that  these 
depositions  ought  to  be  read.  But  if  I  should  be  of  opinion  (and  I  shall 
certainly  go  no  further)  that  some  infidels,  in  some  cases  and  under  some 
circumstances,  may  be  admitted  as  witnesses,  it  will  then  remain  to  be 
considered,  whether  these  infidels,  who  are  examined  in  the  cause  under  the 
circumstances  in  which  they  appear  in  this  court,  are  legal  witnesses  or 
not. 

As  to  the  general  question.  Lord  Coke  has  resolved  it  in  the  negative, 
Co.  Lit.  6,  b.,  that  an  infidel  cannot  be  a  witness;  and  it  is  plain  by  this 
word  "  infidel"  he  meant  Jews  as  well  as  Heathens,  that  is,  all  who  did  not 
believe  the  Christian  religion.  In  2  Inst.  507,  and  many  other  places,  he 
calls  the  Jews  infidel  Jews ;  and  in  the  4  Inst.  155,  and  in  several  other 
passages  of  his  books,  he  makes  use  of  this  expression^  infidel  pagans,  which 
plainly  shows  that  he  comprised  both  Jews  and  Heathens  under  the  word 
infidels;  and,  therefore,  Serjeant  Hawkins  (though  a  very  learned  pains- 
taking man)  is  plainly  mistaken  in  his  History  of  the  Pleas  of  the  Crown, 
2  vol.  p.  434,  where  he  understands  Lord  Coke  as  not  excluding  the  Jews 
from  being  witnesses,  but  only  heathens.  But  Lord  Chief  Justice  Halo 
understood  this  in  another  sense  in  that  remarkable  passage  of  his,  which  I 
shall  mention  more  particularly  by-and-by.  I  shall,  therefore,  take  it  for 
granted  that  Lord  Coke  made  use  of  the  word  infidels  here  in  the  general 
sense;  and  that  will,  I  think,  greatly  lessen  the  authority  of  what  he  sajs  ; 
because  long  before  his  time,  and  of  late,  almost  ever  since  the  Jews  have 
returned  into  England,  they  have  been  admitted  to  be  sworn  as  witnesses. 
Bui,  I  think,  the  counsel  for  the  defendant  seemed  to  mistake  the  reason 
upon  which  Lord  Coke  went.  For  he  certainly  did  not  go  upon  this  reason, 
r*lQ7l  ^^^^^  ^^  infidel  could  not  take  a  *Christian  oath,  and  that  the  form  of 
L  -'  the  oath  cannot  be  altered  but  by  act  of  parliament;  but  upon  this 
reason,  though,  I  think,  a  much  worse,  that  an  infidel  was  not  fide  dignus, 
nor  worthy  of  credit;  for  he  puts  them  in  company  and  upon  the  level  with 
stigmatized  and  infamous  persons.  And  that  this  was  his  meaning  appears 
more  plainly  by  what  he  says  in  Calvin's  case,  7  Co.  17,  b.,  that  "  all  infi- 
dels are  in  law  perpetual  enemies ;  for  between  them,  as  with  the  devils, 
whose  subjects  they  are,  and  the  Christians,  there  is  perpetual  hostility, 
and  can  be  no  peace.  For  as  the  apostle  saith,  2  Cor.  6,  v.  15 ;  '  quae  con- 
ventlo  Cliristi  cum  Belial?  Quse pars  Jideli  cum  ivJidcU?  Injideles  sunt 
Ghristi  et  C hristianorum  inimici.'  And  herewith  agreeth  the  book  in  12 
H.  8,  fol.  4,  where  it  is  holden  that  a  pagan  cannot  maintain  any  action  at 
all."  But  this  notion,  though  advanced  by  so  great  a  man,  is,  I  think,  con- 
trar}'  not  only  to  the  scripture  but  to  common  sense  and  common  humanity. 
And  I  think  that  even  the  devils  themselves,  whose  subjects  he  says  the 
heathens  are,  cannot  have  worse  principles  ;  and  besides  the  irreligion  of  it, 
it  is  a  most  impolitic  notion,  and  would  at  once  destroy  all  that  trade  and 
commerce,  from  which  this  nation  reaps  such  great  benefits.  We  ought  to  be 
thankful  to  Providence  for  giving  us  the  light  of  Christianity,  which  he  has 
denied  to  such  great  numbers  of  his  creatures  of  the  same  species  as  our- 
selves. We  are  commanded  by  our  Saviour  to  do  good  unto  all  men,  and 
not  only  unto  those  who  are  of  the  household  of  faith.  And  St.  Peter 
saith,  Acts  10,  v.  34,  35,  that  ^' God  is  no  respecter  of  persons,  but  in  every 


OMICIIUND    V.     BARKER.  457 

nation  lie  that  feareth  him  and  worketh  righteousness  is  accepted  with  him." 
It  is  a  little  mean  narrow  notion  to  suppose  that  no  one  but  a  Christian  can 
be  an  honest  man.      God  has  implanted  by  nature  on  the  minds  of  all  men 
true  notions  of  virtue  and  vice,  of  justice  and  injustice,  though  heathens 
perhaps   more   frequently  act   contrary    to  those   notions  than   Christians, 
because  they  have  not  such  strong  motives  to  enforce  them.     But,  as  St. 
Peter  says,  there  are  in  every  nation  men  that  fear  God  and  work  righteous- 
ness;  such  men  are  certainly  fide  di(jni,  and  very  proper  to  be  admitted  as 
witnesses.    I  will  not  repeat  what  was  said  by  Sir  George  Treby,  in  the  case 
of  monopolies,  in   the   State  Trials,  vol.  7,  p.  402,  of  this  notion  of  Lord 
Coke's,  and  which  was  cited  *by  one  of  the  counsel;  but  I  think  i-jkigg"] 
that  it  very  well  deserves  every  epithet  that  he  has  bestowed  on  it.  L         J 
I  have  dwelt  the  longer  upon  this  saying  of  his,  because  I  think  it  is  the 
only  authority  that  can  be  met  with  to  support  this  general  assertion  that 
an  infidel  cannot  be  a  witness.     For  though  it  may  be  founded  upon  some 
general  sayings  in  Bracton,  Fleta,  and  Briton,  and  other  old  books,  those  I 
think  of  very  little  weight,   and  therefore  shall  not  repeat   them;    first, 
because  they  are  only  general  dicta ;  and  in  the  next  place  because  these 
great  authors  lived  in  very  bigoted  popish  times,  when  we  carried  on  very 
little  trade,  except  the  trade  of  religion,  and  consequently  our  notions  were 
very  narrow,  and  such  as  I  hope  will  never  prevail  again  in  this  country. 
As  to  what  is  said  by  that  great  man  the  Lord  Chief  Justice  Fortescue,  in 
his  book  De  Laudibus,  b,  26,  that  witnesses  are  to  be  sworn  on  the  Holy 
Evangelists ;   he  is  speaking  only  of  the  oath  of  a  Christian,  and  plainly 
had  not  the  present  question  at  all  in  his  contemplation.     To  this  assertion 
of  my  Lord  Coke's,  besides  what  I  have  already  said,  I  will  oppose  the 
practice  of  this  kingdom,  before  the   Jews  were  expelled  out  of  it  by  stat. 
18  E.  1.     For  it  is  plain,  both  from  Madox's   History  of  the  Exchequer, 
p.  167  and  174,  and  from  Seld.  vol.  2,  p.  1469,  that  the  Jews  here,  in  the 
time  of  King  John  and  Henry  the  Third,  were  both  admitted  to  be  wit- 
nesses, and  likewise  to  be  upon  juries  in  causes  between  Christians  and 
Jews,  and  that  they  were  sworn  upon  their  own  books  or  their  own  roll, 
which  is  the  same  thing.     I  will  likewise  oppose  the  constant  practice  here 
almost  ever  since  the  Jews  have  been  permitted  to  come  back  again  into 
England ;  viz.,  from  the  19  Car.  2,  (when  the  cause  was  tried  which  is 
reported  2  Keble,  314,)  down  to  the  present  time,  during  which  I  believe 
not  one  instance  can  be  cited  in  which  a  Jew  was  refused  to  be  a  witness, 
and  to  be  sworn  on  the  Pentateuch.     To  this  assertion  I  shall  likewise  op- 
pose the  very  great  authority  of  Lord  Hale,  2  vol.  279.     And  though  this 
has  often  been  mentioned  by  the  counsel,  it  is  so  full  of  law,  of  good  sense, 
and  the  spirit  of  Christianity,  that  I  think  it  cannot  be  repeated  too  often  : 
decies  rcpetita placebit.     ''It  is  said  by  Lord  Coke,  that  an  infidel  is  not  to 
be  admitted  as  a  witness ;  the  consequence  of  which  would  be  that  a  Jew, 
who  only  *own3  the  Old  Testament,  could  not  be  a  witness.     But  p^-ioq-i 
I  take  it,  that  although  the  regular  oath,  as  it  is  allowed  of  by  the  L         -' 
laws  of  England,  is  tactis  sacrosanctis  Dei  Evangeliis,  which  supposeth  a 
^man  to  be  a  Christian,  yet  in  cases  of  necessity,  as  in  foreign  contracts  be- 
tween merchant  and  merchant,  which  are  many  times  transacted  by  Jewish 
brokers,  the  testimony  of  a  Jew  tacto  lihro  legls  Mosaicce  is  not  to  be  rejected, 
and  is  used,  as  I  have  been  informed,  amongst  all  nations.     Yea,  the  oaths 


458  smith's   leading   cases. 

of  idolatrous  infidels  have  been  admitted  by  the  municipal  laws  of  many 
kingdoms,  especially  si  juraverint  per  verum  Dcum  creatorem  ;  and  special 
laws  are  instituted  in  Spain  touching  the  forms  of  the  oaths  of  infidels ;  vid. 
Covarruviam,  tom.  1,  p.  1,  de  Juramcnti.  forma."  And  he  mentions  a  case 
where  it  would  be  very  hard  if  such  an  oath  should  not  be  taken  by  a  Turk 
or  Jew,  which  he  holds  binding;  ''for  possibly  he  might  think  himself  un- 
der no  obligation  if  he  were  sworn  according  to  the  usual  form  of  the  Courts 
of  England  :  but  then  it  must  be  agreed  that  the  credit  of  such  testimony 
must  be  left  to  the  jury."  Upon  this  citation  of  Lord  Hale,  out  of  Coy^ir- 
ruviam,  I  shall  say,  once  for  all,  that  I  do  not  lay  any  great  stress  on  the 
citations  out  of  the  civil  law  books ;  not  only  because  I  think  the  present 
case  does  not  want  them,  but  likewise  because  they  only  show  that  there 
are  particular  laws  and  edicts  in  other  countries  which  determine  this  ques- 
tion there ;  and,  therefore,  they  are  not  so  applicable  to  the  present  case, 
since  it  is  not  pretended  that  there  is  any  act  of  parliament  which  has  settled 
this  matter.  This  use  indeed,  and  this  only,  can  be  made  of  these  citations, 
to  show  that  the  opinion  of  the  legislature  in  other  countries  has  been  for 
admitting  this  sort  of  evidence. 

The  last  answer  that  I  shall  give  to  this  assertion  of  Lord  Coke's,  as  ex- 
plained in  Calvin's  case,  are  his  own  words  in  his  4th  Inst.  p.  155.  ''Fccdus 
pact's  or  commercii,"  saith  he,  "though  not  niiUiti  auxilii,  may  be  stricken 
between  a  Christian  prince  and  infidel  pagan  ;  and  as  these  leagues  are  to 
be  established  by  oath,  a  question  will  arise  whether  the  infidel  or  pagan 
prince  may  swear  in  this  case  by  false  gods,  since  he  thereby  oifendeth  the 
true  Grod  by  giving  worship  to  false  gods.  This  doubt,"  saith  he,  "  was 
r*900~l  "^^"^^^  by  Publicola  to  St.  Augustine,  who  thus  resolveth  the  *same  : 
■-  -^  '  He  that  taketh  the  credit  of  him  who  sweareth  by  false  gods  not 
to  any  evil  but  good,  he  doth  not  join  himself  to  that  sin  of  swearing  by 
devils,  but  is  partaker  with  those  lawful  leagues,  wherein  the  other  keepeth 
his  faith  and  oath  :  but  if  a  Christian  should  anyways  induce  another  to 
swear  by  them,  he  should  grievously  sin.  But  seeing  that  such  deeds  are 
warranted  by  the  word  of  God,  all  incidents  thereto  are  permitted.'  "  This 
is,  I  think,  as  inconsistent  as  possible  with  his  notion  that  an  infidel  is  not 
Jide  di</nus,  and  a  full  answer  to  what  he  said  in  Calvin's  case  on  this  head  j 
and,  therefore,  I  shall  leave  him  here,  having,  I  think,  quite  destroyed  the 
authority  of  his  general  rule,  that  none  but  a  Christian  ought  to  be  admit- 
ted as  a  witness. 

I  shall  now  proceed  to  explain  the  nature  of  an  oath,  which  will,  I  think, 
contribute  very  much  towards  the  determination  of  the  general,  as  well  as 
the  present  question.  If  an  oath  were  merely  a  Christian  institution,  as 
baptism,  the  sacrament,  and  the  like,  I  should  be  forced  to  admit  that  none 
but  a  Christian  could  take  an  oath.  But  oaths  were  instiuted  long  before 
Christianity  was  made  use  of  to  the  same  purposes  as  now,  were  always 
held  in  the  highest  veneration,  and  are  almost  as  old  as, the  creation.  Jura- 
mentuni,  according  to  Lord  Coke  himself,  7iiJiil  alitid  est  quam  Deum  in 
testem  vocare;  and,  therefore,  nothing  but  the  belief  of  a  Grod,  and  that  he 
will  reward  and  punish  us  according  to  our  deserts,  is  necessary  to  qualify- 
a  man  to  take  the  oath.  We  read  of  them,  therefore,  in  the  most  early 
times.  If  we  look  into  the  sacred  history,  we  have  an  account  in  Genesis, 
c.  26,  V.  28  and  31 ;  and  again  Genesis,  c.  31,  v.  53,  that  the  contracts 


OMICHUNDV.    BARKER.  459 

between  Isaac  and  Abimelech,  and  between  Jacob  and  Laban,  were  eon- 
firmed  by  mutual  oaths ;  and  yet  the  contracting  parties  were  of  very  dif- 
ferent religions,  and  swore  in  a  different  form.  It  would  be  endless  to  cite 
the  places  in  the  Old  Testament  whei-e  mention  is  made  of  taking  an  oath 
upon  solemn  occasions,  and  how  great  a  reverence  was  always  paid  to  it.  I 
shall  only  take  notice  of  three  :  one  in  Numb.  30,  2,  "  He  that  sweareth  an 
oath  bindeth  his  soul  with  a  bond ;"  another  in  Deut.  c.  6,  v.  13,  "  Thou 
shalt  fear  the  Lord  thy  God,  and  swear  by  his  name  ;"  and  another,  Psalms 
15,  V.  5,  where  a  righteous  man  is  described  in  this  *manner,  <'  One  p^nA-i  -i 
who  sweareth  unto  his  neighbour  and  disappointeth  him  not,  though  L  J 
it  were  to  his  own  hindrance." 

From  the  passages  of  the  New  Testament,  where  mention  is  made  of  an 
oath,  it  is  plain  that  it  continued  to  be  used  in  the  same  manner,  and  to  be 
had  in  the  same,  if  not  greater  veneration,  after  the  coming  of  our  Saviour. 
The  nature  of  an  oath  was  not  at  all  altered,  only  as  the  promise  of  rewards 
and  punishments  in  another  world  was  then  more  clearly  revealed,  the  ob- 
ligation of  an  oath  grew  much  stronger,  and  those  who  were  really  Chris- 
tians were  under  a  greater  apprehension  of  breaking  it.  "  An  oath  for  con- 
firmation," saith  St.  Paul,  "  is  an  end  of  all  strife."  .Heb.  c.  16.  And  I 
cannot  forbear  mentioning  one  passage  more  out  of  the  New  Testament,  to 
show  what  great  reverence  was  paid  to  an  oath,  even  by  the  most  wicked 
men ;  and  under  what  great  apprehensions  they  were  of  breaking  it.  It  is 
in  Matt.  c.  14,  v.  6  to  9,  and  it  is  related  in  the  same  manner  by  St.  Mark, 
c.  6,  V.  23  to  26,  that  Herod  having  sworn  to  Herodias,  whatsoever  she 
asked  of  him  he  would  give  it  her,  though  he  was  exceeding  sorry  when  she 
asked  of  him  the  head  of  St.  John  the  Baptist,  yet  for  his  oath's  sake,  and 
the  sake  of  them  who  sate  with  him,  he  would  not  reject  her.  And  I  can- 
not help  likewise,  in  this  place,  though  a  little  out  of  course,  taking  notice 
of  what  is  said  by  Lactantius  on  this  subject,  that  some  in  his  time,  who 
were  so  very  wicked  as  not  to  be  afraid  even  of  committing  murder,  yet  had 
such  a  veneration  for  an  oath,  and  such  a  dread  of  being  foresworn,  that 
when  purged  upon  their  oath,  they  durst  not  deny  the  fact. 

If  we  look  into  profane  authors,  we  shall  find  pretty  much  the  same  ac- 
count of  an  oath.  I  shall  mention  only  two  or  three  of  the  most  ancient 
and  best  of  them.  It  appears  in  several  places  in  Homer,  that  not  only  his 
heroes,  but  likewise  his  gods,  whom  he  represents  as  gods  of  the  second 
rank  subject  to  one  supreme  being,  frequently  confirmed  their  promise  or 
threats  with  an  oath,  and  they  were  then  looked  upon  as  unalterable.  In 
two  places  in  Hesiod,  the  one  in  his  book  De  Generatione  Deoriim,  and  the 
other  in  another  book,  it  is  said  that  horrible  misfortunes  and  punishments 
will  befal  those  who  swear  falsely.  So  in  the  beginning  of  Pythagoras's 
Golden  Verses,  considering  an  oath  as  very  sacred  and  as  a  sort  of  religious 
Avorship.  And  Hierocles,  who  is  very  large  in  his  comment  on  this  passage, 
says  *an  oath  was  looked  upon  by  the  ancient  fathers  as  one  of  the  ^cooi 
most  solemn  acts  of  religion.  I  shall  conclude  with  Cicero,  who  L  "  "J 
never  speaks  of  an  oath  but  with  the  greatest  reverence,  and  as  the  strongest 
tie  which  can  be  laid  upon  men.  Nullum  vinculum  (says  he)  ad  astrin- 
gendam  fidem  majorcs  nostri  arctius  jurejurando  credidernnt.  To  these 
great  authorities  I  shall  only  beg  leave  to  add  the  sentiments  of  two  modern 
writers,  but  writers  of  very  great  credit ;  I  mean  Grotius  de  Jure  Belli  et 


460  smith's   leading  cases. 

Pacts,  lib.  2,  c.  13,  s.  1.  His  words  are,  Apud  omncs  populos  et  ah  omni 
CEVO  circa  polUcltationcs  promissa  et  contractus  maxima  semper  vis  fait 
juri^juramU.  And  Tillotson's  Sermons,  vol.  i.  p.  241,  where  he  says  that 
"  It  is  the  general  practice  of  mankind,  which  has  universally  obtained  in 
all  ages  and  nations,  to  confirm  things  by  an  oath  in  order  to  the  ending  of 
dififorences." 

It  is  very  plain  from  what  I  have  said  that  the  substance  of  an  oath  has 
nothing  to  do  with  Christianity,  only  that  by  the  Christian  religion  we  are 
put  still  under  great  obligations  not  to  be  guilty  of  perjury;  the  forms, 
indeed  of  an  oath  have  been  since  varied,  and  have  been  always  different  in 
all  countries  according  to  the  different  laws,  religion,  and  constitution  of 
those  countries.  But  still  the  substance  is  the  same,  which  is  that  God  in 
all  of  them  is  called  upon  as  a  witness  to  the  truth  of  what  we  say.  Grotius 
in  the  same  chapter,  sect.  10,  says,  forma  jurisjurandi  verbis  dijfert,  re 
convenit.  There  are  several  very  different  forms  of  oaths  mentioned  in 
Selden,  vol.  ii.  p.  1470,  but  whatever  the  forms  are,  he  says,  that  is  meant 
only  to  call  God  to  witness  to  the  truth  of  what  is  sworn;  "sit  Deus  testis," 
"sit  Deus  vindex,"  or  "  ita  te  Deus  adjuvet,"  are  expressions  promiscuously 
made  use  of  in  Christian  countries;  and  in  ours  that  oath  hath  been  fre- 
quently varied,  as  "ita  te  Deus  adjuvet  tactis  sacrosanctis  Dei  Evangelis ;" 
"ita,  <&c.,  et  sacrosancta  Dei  Evangelia  :"  "ita,  &c.,  et  omncs  sancti." 
And  now  we  keep  only  these  words  in  the  oath,  "  so  help  you  God,"  and 
which  indeed  are  the  only  material  words,  and  which  any  heathen  who 
believes  a  God  may  take  as  well  as  a  Christian.  The  kissing  the  book  here, 
and  the  touching  the  bramin's  hand  and  foot  at  Calcutta,  and  many  other 
different  forms  which  are  made  use  of  in  different  countries,  are  no  part  of 
the  oath,  but  are  only  ceremonies  invented  to  add  the  greater  solemnity  to 
r*onR1  ^^"^  taking  of  it,  and  *to  express  the  assent  of  the  party  to  the  oath, 
L  *"  -'  when  he  does  not  repeat  the  oath  itself:  but  the  swearing  in  all 
of  them,  be  the  external  form  what  it  will,  is  calling  God  Almighty  to  be 
a  witness  :  as  is  clear  from  these  words  of  our  Saviour,  in  Matthew,  chap. 
23,  V.  21  and  22,  <' Whoso  sweareth  by  the  temple  sweareth  by  it,  and 
by  him  that  dwelleth  therein;  and  he  that  sweareth  by  heaven  sweareth  by 
the  throne  of  God,  and  by  him  that  sitteth  thereon."  As  to  what  was  said 
by  the  counsel,  that  Christianity  is  part  of  the  law  of  England,  which  is 
certainly  true,  as  it  is  here  established  by  laws;  and  that,  therefore,  to 
admit  the  oath  of  a  heathen  is  contrary  to  the  law  of  England ;  it  appears 
from  what  I  have  already  laid  down  that  there  is  nothing  in  that  argument, 
since  an  oath  is  no  more  a  part  of  Christianity  than  of  every  other  religion 
in  the  world.  There  is  likewise  as  little  in  another  argument,  which  was 
made  use  of,  that  an  oath  cannot  be  altered  but  by  act  of  parliament;  for 
the  form  of  an  assertory  oath  here  hath  been  frequently  varied,  as  I  have 
already  observed.  And  what  Lord  Coke  says  in  the  2  Inst.  479,  and  3 
Inst.  165,  that  an  oath  cannot  be  altered,  nor  a  new  one  imposed,  but  by 
authority  of  parliament,  plainly  relates  only  to  promissory  oaths,  or  oaths 
of  office,  as  those  of  privy  chancellors,  judges,  sheriffs,  and  the  like,  and 
not  at  all  to  oaths  taken  by  witnesses;  As  to  the  passage  mentioned  out  of 
the  State  Trials,  where  the  Lord  Chief  Justice  asked  if  the  witness  were  a 
Christian  or  not,  who  appeared  to  be  otherwise  by  his  mien  and  dress,  and 
was  going  to  take  the  common  oath,  and  as  to  what  was  said  that  Lord  Chief 


O  M  I  C  n  U  N  D    V.     BARKER.  461 

Justice  Eyre  once  refused  to  swear  a  man  on  the  Evangelists,  who  was  not  a 
Christian,  and  that  Lord  Chief  Baron  Gilbert  did  the  same  to  one  who, 
when  asked  whether  he  believed  in  Christ,  declared  that  he  did  not  know 
who  Christ  was ;  very  little  can  be  inferred  from  either  of  these  instances, 
since  it  docs  not  appear  that  the  fact,  to  which  the  witness  was  going  to  be 
sworn,  arose  in  a  foreign  country,  or  that  it  was  a  mercantile  cause,  or  that 
it  was  ever  insisted  on  by  the  counsel  that  the  witness  should  be  examined 
in  any  other  manner  than  in  the  common  form  upon  the  Holy  Evangulists. 
Having  now,  I  think,  sufficiently  shown  that  Lord  Coke's  rule  is  without 
foundation,  either  in  scripture,  reason,  or  law,  that  I  may  not  be  rsonil 
understood  in  too  general  a  sense,  *I  shall  repeat  it  over  again,  that  I  l  ^  -' 
only  give  my  opinion  that  such  infidels  who  believe  a  Grod,  and  that  he  will 
punish  them  if  they  swear  falsely,  in  some  cases  and  under  some  circumstances, 
may  and  ought  to  be  admitted  as  witnesses  in  this,  though  a  Christian  country. 
And,  on  the  other  hand,  I  am  clearly  of  opinion,  that  such  infidels,  if  any 
such  there  be,  who  either  do  not  believe  a  Grod,  or,  if  they  do,  do  not  think 
that  he  will  either  reward  or  punish  them  in  this  world  or  in  the  next,  cannot 
be  witnesses  in  any  case,  nor  under  any  circumstances,  for  this  plain  reason, 
because  an  oath  cannot  possibly  be  any  tie  or  obligation  upon  them.  I 
therefore  entirely  disagree  with  what  is  reported  to  have  been  said  by  Lord 
Chief  Justice  Ley,  in  2  Rol.  Rep.  346,  Tr.  21  Jam.  1,  B.  R.,  that  in  the 
trials  of  matters  arising  beyond  sea  we  ought  to  allow  such  proof  as  they 
beyond  sea  would  allow.  This  would  be  leaving  this  point  on  so  very  loose 
and  uncertain  a  foot,  that  I  cannot  come  into  it;  for  if  this  rule  were  to 
hold,  considering  in  what  a  strange  manner  justice  is  administered  in  some 
foreign  parts,  Grod  knows  what  evidence  must  be  admitted.  Nor  can  I 
agree  with  the  resolution  in  the  case  of  Alsop  v.  Bowtrell,  Cro.  Jac.  541, 
2,  M.  17  J.  1,  B.  R.,  where  it  was  holden,  that  a  certificate,  under  the  seal 
of  the  minister  at  Utrecht,  and  of  the  said  town,  of  the  marriage  of  two  persons 
there,  and  that  they  cohabited  together  as  man  and  wife,  was  a  sufficient 
proof.  To  admit  the  certificate  of  the  minister  of  the  fact  of  the  marriage, 
at  a  place  where  there  is  no  bishop,  might,  perhaps,  be  equal,  and  be  resem- 
bled to  the  certificate  of  the  bishop  here,  which  is  in  some  cases  conclu- 
sive evidence  of  a  marriage.  But  I  am  clearly  of  opinion  that  the  certificate 
of  their  cohabiting  together  ought  not  to  have  been  admitted.  For  our  law 
never  allows  a  certificate  of  a  mere  matter  of  fact,  not  coupled  with  any 
matter  of  law,  to  be  admitted  as  evidence.  Even  the  certificate  of  the  King, 
under  his  sign  manual,  of  a  matter  of  fact,  (except  in  one  old  case  in  Chan- 
cery, Hob.  213,)  has  been  always  refused;  and  it  would  be  strange  if  we 
should  give  greater  credit  to  the  certificate  of  a  minister  at  Utrecht  than  to 
that  of  the  King  himself.  Besides,  it  is  not  the  best  evidence  that  the 
nature  of  the  thing  will  admit,  but  the  proper  and  usual  evidence  of  a  fact, 
arising  beyond  sea,  is  an  affidavit  or  deposition,  *taken  before  a  ^onc-i 
public  notary,  and  certified  to  be  so,  under  the  seal  of  the  place,  or  L  J 
the  principal  officer  of  the  place,  which  has  been  admitted  as  evidence  in 
some  cases,  where  it  would  be  too  expensive,  considering  the  nature  of  the 
cause,  to  take  out  a  special  commission.  Before  I  conclude  this  head,  I 
must  beg  leave  again  to  take  notice  of  what  is  said  by  Lord  Hale,  that  it 
must  be  left  to  the  jury  v/hat  credit  must  be  given  to  these  infidel  witnesses. 
For  I  do  not  think  that  the  same  credit  ought  to  be  given  either  by  a  court 


462  smith's   leading    cases. 

or  a  jury  to  :in  iiifidol  witness  as  to  a  Christian,  who  is  under  much  stronger 
obligations  to  swear  nothing  but  the  truth.  The  distinction  between  the 
competency  and  credit  of  a  witness  is  a  known  distinction,  and  many  wit- 
nesses are  admitted  as  competent,  to  whose  credit  objections  may  be  after- 
wards made.  The  rule  of  evidence  is,  that  the  best  evidence  must  be  given 
that  the  nature  of  the  thing  will  admit.  The  best  evidence  which  can  be 
expected  or  retjuired,  according  to  the  nature  of  the  case,  must  be  received; 
but  if  better  evidence  be  oifered  on  the  other  side,  the  other  evidence,  though 
admitted,  may  happen  to  be  of  no  weight  at  all.  To  explain  what  I  mean : 
suppose  an  examined  copy  of  a  record  (as  it  certainly  may)  be  given  in  evi- 
dence; if  the  other  side  afterwards  produce  the  record  itself,  and  it  appears 
to  be  different  from  the  copy,  the  authority  of  the  copy  is  at  an  end.  To 
come  nearer  to  the  present  ease  :  supposing  an  infidel,  who  believes  a  Grod, 
and  that  he  will  reward  and  punish  him  in  this  world,  but  does  not  believe 
a  future  state,  be  examined  on  his  oath,  as  I  think  he  may,  and,  on  the 
other  side,  to  contradict  him,  a  Christian  is  examined,  who  believes  a  future 
state,  and  that  he  shall  be  punished  in  the  next  world  as  well  as  in  this  if  he 
does  not  swear  the  truth,  I  think  that  the  same  credit  ought  not  to  be  given 
to  an  infidel  as  to  a  Christian,  because  he  is  plainly  not  under  so  strong  an 
obligation. 

I  have  now  done  with  the  general  question.  And  what  I  have  said  upon 
that  must  plainly  show  of  what  opinion  I  am  in  respect  to  the  present  ques- 
tion ;  and,  therefore,  I  shall  be  very  short  as  to  that.  I  think,  after  what 
I  have  already  said,  I  need  say  nothing  more  to  determine  this  point  than 
barely  to  state  the  facts  relating  to  it,  as  they  stand  now  before  the  court. 

.^nr.-,  *  It  is  admitted  that  the  cause  is  concerning  a  mei'cantile  affair, 
L  ~  -^  which  was  transacted  in  a  foreign  heathen  country,  at  Calcutta.  It 
must  be  agreed  that  it  is  greatly  to  the  advantage  of  this  nation  to  carry  on 
a  trade  and  commerce  in  foreign  countries,  and  in  many  countries  inhabited 
by  heathens,  and  particularly  in  this  town,  in  which  we  have  established  a 
factory  for  that  purpose.  A  trade  was  accordingly  carried  on  there  between 
the  plaintiff,  a  heathen  and  subject  of  that  country,  and  a  Christian  mer- 
chant, a  subject  of  England.  It  is  insisted  by  the  plaintiff,  that  the  English 
merchant,  being  greatly  in  his  debt,  withdrew  into  England,  and  conse- 
quently was  not  amenable  to  the  courts  of  justice  in  that  country,  where,  if 
he  could  have  tried  his  cause,  this  evidence,  which  is  now  in  dispute,  would 
have  certainly  been  admitted.  He  followed  his  debtor  into  England,  which 
was  the  only  remedy  that  he  had  left,  and  filed  his  bill  against  him  in  the 
Court  of  Chancery  here.  No  one  will,  I  believe,  now  say  that  he  had  not 
a  right  to  bring  such  a  suit,  or  that  he  is  not  entitled  to  justice.  For, 
though  there  was  such  an  old  notion  in  popish  times,  and  for  some  little 
time  afterwards,  till  the  Reformation  was  fully  established,  that  even  an 
alien  friend,  especially  if  he  were  an  infidel,  could  not  sue  in  a  court  of  jus- 
tice here,  this  most  absurd,  wicked,  and  unchristian  notion  has,  God  be 
thanked,  been  long  since  exploded,  and  will,  I  hope,  never  be  revived  again. 
It  being  admitted  that  he  may  bring  his  suit  here,  and  consequently  that  he 
is  entitled  to  justice,  it  follows  that  he  must  be  at  liberty  to  produce  his 
evidence  here,  in  order  to  make  out  his  case.  And  if  he  produce  his  evi- 
dence, it  must  be  upon  oath ;  for  it  would  be  absurd  to  give  an  infidel  more 
credit  than  a  Christian,  which  we  must  do,  if  an  infidel's  evidence  be  neces- 


OMICHUND     V.     BARKER.  463 

sary,  in  order  to  do  justice,  and  yet  he  cannot  be  examined  upon  oath  :  he 
must,  therefore,  be  examined  upon  oath  in  some  shape  or  other.  In  order 
to  obtain  justice,  the  pLaintiff  in  this  cause  laid  his  case  properly  before  the 
Court  of  Chancery,  and  prayed  a  commission  to  Calcutta;  and  the  Court  of 
Chancery,  I  think,  very  rightly,  and  with  great  justice,  ordered  a  commis- 
sion to  go,  and  that  the  words  <'  on  the  Holy  Evangelists"  should  be  omitted, 
and  the  word  ''solemnly"  inserted  in  their  room  :  and  likewise  very  *pru- 
dently  directed  that  the  commissioners  should  certify  upon  the  return  ^j^qa--! 
of  the  commission,  in  what  manner  the  oath  was  administered  to  the  L  "  J 
witnesses  examined  on  the  commission  ;  and  what  religion  they  were  of. 
The  commissioners  accordingly  returned  that  the  oath  was  administered  to 
the  witnesses  in  the  same  words  as  here  in  England,  which  fully  answers 
the  objection,  (if  there  was  any  thing  in  it,)  that  the  form  of  the  oath  can- 
not be  altered ;  and  they  certified  that  after  the  oath  was  read  and  interpreted 
to  them,  they  touched  the  bramin's  hand  or  foot,  the  same  being  the  usual 
and  most  solemn  manner  in  which  oaths  are  administered  to  witnesses  who 
profess  the  Gentoo  religion,  and  in  the  same  manner  in  which  oaths  are 
usually  administered  to  persons  who  profess  the  Gentoo  religion,  on  their 
examination  as  witnesses  in  the  courts  of  justice,  erected  by  virtue  of  his 
Majesty's  letters-patent  at  Calcutta-  and  they  further  certified  that  the  wit- 
nesses so  examined  were  all  of  the  Gentoo  rejigion.  This  certificate,  I 
think,  fully  answers  the  objection,  that  it  does  not  appear  that  the  witnesses 
believe  a  God,  or  that  he  will  punish  them  if  they  swear  falsely ;  which,  as 

1  have  already  said,  I  admit  to  be  requisite,  absolutely  necessary  to  qualify 
a  person  to  take  an  oath.  I  do  not  at  all  rely  upon  the  books  which  were 
cited,  and  which  give  an  account  of  the  Gentoo  religion.  But  it  is  plain, 
from  the  certificate  itself,  that  they  believe  and  worship  a  God,  and  that  they 
have  priests  for  that  purpose,  which  would  be  of  no  use,  if  they  did  not 
believe  that  he  would  reward  or  punish  them,  according  to  their  deserts. 
The  certificate  likewise  answers  this  objection,  that  the  oath  being  only  read 
ti)  the  witnesses,  it  does  not  appear  that  they  said  or  did  any  thing  which 
sio-nified  their  assent  to  it;  for  touching  the  hand  or  foot  of  the  priest,  after 
these  words,  "so  help  me  God,"  it  being  their  usual  form,  is  as  much  sig- 
nifying their  assent  as  kissing  the  book  is  here,  where  the  party  swearing 
likewise  says  nothing.      And  the  case  cited  by  the  Lord  Chief  Baron,  from 

2  Sid.  6,  Mich.  1657,  plainly  proves  this,  where  Chief  Justice  Glyn  was  of 
"  opinion  that  Doctor  Owen's  holding  up  his  right  hand  was  sufiicient,  without 

touching  the  book.'  And  Lord  Stair,  in  his  institutes  of  the  Laws  of  Scot- 
land, p.  692,  confirms  this,  where  he  says,  "  It  is  the  duty  of  *judges,  j-.^.^,  _-, 
in  taking  the  oaths  of  witnesses  to  do  it  in  those  forms  that  will  most  L  ~  J 
touch  the  conscience  of  the  swearers,  according  to  their  persuasion  and  cus- 
tom ;  and  though  Quakers  and  fanatics,  deviating  from  the  common  senti- 
ments of  mankind,  refuse  to  give  a  formal  oath,  yet,  if  they  do  that  which  is 
materially  the  same,  it  is  materially  an  oath." 

The  only  objection  that  remains  against  admitting  this  evidence  is,  that 
these  witnesses  will  not  be  liable  to  be  indicted  for  perjury;  because  they 
are  not  sworn  supra  sacrosancta  Dei  Evangelia,  which  words,  as  was  insisted, 
are  necessary,  in  every  indictment;  and  therefore,  they  are  not  under  the 
same  necessity  to  swear  truly  as  Christian  witnesses  are.  But  this  objection 
has  been  in  a  great  measure  already  answered  by  the  Chief  Baron,  and  it 


464 


smith's   leading   cases. 


may  receive  two  plain  answers  ;  first  that  these  words,  '^  siq)ra  sacrosancta 
Dei  Evangelia,"  or  "  tactis  sacrosauctis  Dei  Evarif/eliis,"  are  not  necessary 
to  be  in  an  indictment  for  perjury.  Thej'  have  been  omitted  in  many  in- 
dictments against  Jews,  of  which  several  precedents  have  been  laid  before 
us;  and  they  are  not  in  the  precedents  of  such  indictments,  which  I  find  in 
an  ancient  and  very  good  book,  entitled  West's  Siuiboleography  ;  but  it  is 
only  said  there,  '' suj)ra  sacramentum  suum  dixit  et  dcposuit,'^  or  affirmavit 
ct  dqiosuit."  Besides  :  this  argument,  if  it  prove  any  thing,  proves  a  great 
deal  too  much;  for,  if  there  were  any  thing  in  it,  many  depositions  even  of 
Christians  have  been  admitted,  and  many  more  must  be  admitted,  or  else 
there  will  be  a  manifest  failure  of  justice,  where  the  witnesses  arc  certainly 
not  liable  to  be  indicted;  for  when  the  depositions  of  witnesses  are  taken  in 
another  country,  it  frequently  happens  that  they  never  come  over  hither,  or 
if  they  do,  cannot  be  indicted  for  perjury,  because  the  fact  was- committed 
in  another  country.  Those,  therefore,  who  are  plainly  not  liable  to  be  in- 
dicted for  perjury  have  often  been,  and  for  the  sake  of  justice  must  be, 
admitted  as  witnesses,  and  so  there  is  an  end  of  this  objection. 

From  what  I  have  said  it  is  plain  that  my  opinion  is  that  these  depositions 
ou^ht  to  be  read  in  evidence. 


r*-T)Q1  *1'he  rule  of  law  upon  this  sub- 
'-  "  -' ject  was  anciently  supposed  to  be 
that  infidels,  i.  e.,  persons  not  professing' 
the  Cliristian  faith,  were  incompelent  as 
witnesses,  Gilb.  Ev.  142.  The  principal 
case  has,  however,  settled  the  contrary  ; 
and  it  was  ruled  by  Biiller,  J.,  in  R.  v. 
Taylor,  Peake,  11,  that  the  proper  ques- 
tion lo  put  to  a  witness,  in  order  to  ascer- 
tain his  competency  as  to  religious  prin- 
ciple, is,  lohelher  he  believes  in  a  God, 
the  obligation  of  an  oath,  and  a  future 
state  of  retoards  and  punishments.  It 
would  appear,  however,  from  some  of  the 
observations  of  the  Chief  Justice  in  the 
principal  case,  tiiat  it  is  sufficient  if  the 
witness  believe  in  a  God  who  will  reward 
or  punish  liiini;i  tkistoorld.  In  White's 
case,  1  Leach,  430,  the  witness  stated 
that  he  had  heard  there  was  a  God,  and 
believed  that  people  who  told  lies  would 
come  lo  the  gallows,  but  was  ignorant  of 
the  obligation  of  an  oath,  a  future  state 
of  rewards  and  punisliments,  the  exist- 
ence of  another  world,  and  what  became 
of  wicked  people  after  death.  His  testi- 
mony was  rejected.  In  this  case  the 
witness  seems  to  have  had  an  idea  that 
falseliood  would  be  punished  by  God  in 
this  world,  but  not  of  ihe  peculiar  solem- 
nity of  an  oath,  and  of  the  sinfulness  of 
perjury  beyond  tmit  of  any  other  species 
of  falsehood.     [Indeed  it  does  not  appear 


at  p.]]  clearly  from  the  report,  that  tlie 
witness  believed  the  punishment  of  sin, 
even  in  this  world,  lo  be  part  of  God's 
government,  without  which  he  did  not 
fall  within  what  was  said  by  Willis,  C. 
J.,  in  the  principal  case.]  It  has  been 
held  that  where  an  infant  witness  in  a 
criminal  case  appeared  to  have  no  notion 
of  the  obligation  of  an  oath,  the  trial 
might  be  postponed  till  he  should  be  in- 
structed, 1  Leach,  430,  n.  But  it  was 
Iield  differently  where  the  witness  vvas 
an  adult,  and  of  sufficient  intellect. 
Wade's  case,  1  Moo.  C.  C  86.  [Also, 
where  the  child  was  incompetent  to  take 
an  oath,  by  reason  of  lier  tender  years, 
and  not  from  neglected  education,  Pol- 
lock, C.  B  ,  observing  that  "  more  would 
probably  be  lost  in  memory  than  would 
be  gained  in  any  other  way."  His  lord- 
ship, however,  e.vpressly  guarded  liimself 
against  being  supposed  to  lay  down  any 
general  rule,  as  there  might  be  cases 
where  a  postponement  would  be  proper. 
R.  V.  Nichols,  2  Car.  &  Kir.  246.] 

Quakers  and  Moravians  were  formerly 
incompetent  in  criminal  cases,  but  their 
disability  is  now  removed  by  St.  9  G.  4, 
c.  15,  s.  1.  [3  and  4  W.  4.  c.  49,  1  and 
2  V.  c.  77;  as  is  that  of  Separatists  by  3 
and  4  W.  4,  c.  82.]  E.xcommunicated 
persons  were  al='o  incapable  of  giving 
evidence  at  common  law,  but  are  now  by 


O  M  I  C  H  U  N  D    V.     BARKER. 


465 


St.  53  G.  3,  cap.  127,  sect.  3,  exempted  With  respect  to  the  principal  case, 
from  all  civil  disabilities.  [And  this  the  (ollowiiifr  account  of  the  determina- 
seenis  equally  applicable  to  excommuni-  tion  of  the  Chancellor  upon  it  is  extract- 
cation  ipsofaclo,  as  to  that  pronounced  ed  from  1  Wilson,  84.  "  It  was  held  by 
by  an  ecclesiastical  court.  Escott  v.  the  Lord  Chancellor  that  an  infidel,  pa- 
Martin,  4  Moore  (Privy  Council)  104.  gan,  idolater,  may  be  a  witness,  and  that 
Lord  Denman's  Act,  6  &  7  V.  c.  &!5,  re-  his  deposition,  sworn  according  to  the 
moves  the  effect  of  incapacity  from  custom  and  manner  of  the  country  where 
crime;  but  it  has  been  made  a  question  he  lives,  may  be  read  in  evidence."  [See 
whether  its  provisions  extend  to  the  Reg.  v.  Enlremahn,  1  C.  &  M.  248.  1 
courts  Christian.  Sanders  v.  Wigston,  &  2  V.  c.  105.] 
1  Robert.  460.] 


In  the  case  of  Jackson  v.  Gridley,  18  Johnson,  103,  the  competency  of  a 
witness  as  aifected  by  his  religious  creed,  was  made  to  rest  upon  the  ques- 
tion of  his  belief  in  the  existence  of  a  Grod,  and  a  state  of  reward  and  pun- 
i.shment  in  the  world  to  come;  thus  excluding  those  persons  who  confine 
the  operation  of  divine  justice  within  the  limits  of  the  life  of  man  in  this 
world.  The  law  was  held  the  same  way  in  Wakefield  v.  Ross,  5  Mason,  16; 
Curtis  V.  Strong,  4  Day,  51,  and  Atwood  v.  Weston,  7  Connecticut,  66.  In 
the  latter  case,  the  witness  was  excluded  on  the  ground,  that  as  he  believed 
that  all  mankind  would  be  made  happy  immediately  after  death,  no  sanction 
could  be  added  to  his  oath  by  his  faith  in  a  future  state  of  existence.  The 
distinction  was  also  taken  in  argument,  and  supported  by  the  authority  of 
the  court,  that  as  the  important  point  was,  not  what  the  witness  thought  as 
to  the  future  condition  of  others,  but  as  to  his  own,  he  would  have  been 
equally  incompetent,  had  he  believed  himself  to  be  included  among  the 
number  of  the  elect  under  the  doctrine  of  predestination,  irrespectively  of 
the  character  of  his  actions  while  in  this  state  of  existence. 

A  belief  in  God  and  in  a  future  state  of  existence,  was  held  essential  to 
competency,  in  Wakefield  v.  Ross,  5  Mason,  16,  and  Noble  v.  The  People, 
Breesc,  29  ;  but  in  the  latter  case  it  was  held,  that  if  these  points  werq  em- 
braced in  the  creed  of  the  witness,  his  belief  in  future  punishment  was  im- 
material. The  good  sense  of  this  decision  will  be  evident,  on  comparing  it 
with  the  theological  subtlety  of  the  discussion  in  Attwood  v.  Weston. 

As  the  witness  whose  competency  was  in  question  in  Jackson  v.  Gridley, 
had  expressed  his  disbelief  in  the  existence  of  God,  as  well  as  of  a  future 
state,  the  opinion  of  the  court  as  to  the  efi"ect  of  scepticism  on  the  latter 
point,  apart  from  the  former,  must  be  considered  as  a  dictum  rather  than  a 
decision.  It  was  subsequently  held  in  two  cases  at  Nisi  Prius,  reported,  2 
Cowen,  433,  573,  that  a  belief  in  the  existence  of  God  and  providential 
punishment  for  crime,  whether  in  this  world  or  the  next,  is  sufficient  to 
render  a  witness  competent.  In  Butts  v.  Swartwood,  2  Cowen,  432,  Suth- 
erland, J.,  said,  that  the  true  test  of  the  competency  of  a  witness  was, 
"whether  he  believed  in  the  existence  of  a  God,  who  would  punish  him  if 
he  swore  falsely;"  thus  adopting  the  words  of  AViLLls,  C.^,  in  the  case  of 
Omichuud  v.  Barker,  as  the  definition  of  the  law.  Although  this  opinion 
Vol.  I.— 30 


466  smith's  l  k  a  d  I  n  0   cases. 

was  expressed  generally,  the  question,  whether  a  belief  in  a  punishment  con- 
fined to  this  life,  will  be  sufRcicnt,  was  not  raised  on  the  record,  nor  expressly 
decided  by  the  court,  who  merely  held,  that  the  witness  was  rendered  incom- 
petent by  his  disbelief  in  the  eternal  duration  of  future  punishments. 

The  case  of  Cubbison  v.  McCreary,  2  W.  &  S.  262,  set  the  law  at 
rest  on  this  point  in  Pennsylvania,  by  deciding  that  a  belief  in  a  future 
state  of  rewards  and  punishments,  is  not  necessary  to  the  competency 
of  a  witness.  It  was  again  said,  that  the  true  test  of  his  competency  is  the 
existence  of  a  belief  in  a  God,  who  will  punish  him  if  he  swear  falsely.  It 
is  held  in  like  manner  in  most  of  the  other  States  of  the  Union,  that  the 
disbelief  of  a  witness  in  a  future  state,  goes  only  to  his  credibility,  not  his 
competency;  and  that  his  testimony  should  be  admitted,  if  he  believe  in 
the  existence  of  God,  and  in  the  divine  punishment  of  crime;  Hunscom 
V.  Hunscom,  15  Mass.  184;  Brock  v.  Milligan,  10  Ohio,  121;  Blockie 
V.  Brenness,  2  Alabama,  354  ;  The  United  States  v.  Kennedy,  3  McLean, 
175;  Jones  v.  Harris,  1  Strobhart,  150.  But  the  inclination  of  the 
courts  in  most  of  these  cases  seems  to  have  been,  that  unless  a  witness 
believe  that  the  justice  of  God  awards  temporal  or  future  punishment,  he 
is  incompetent  to  testify. 

However  this  may  be,  it  is  well  settled  throughout  the  greater  part  of  this 
country,  that  a  witness  who  has  deviated  so  far  from  the  laws  of  his  moral 
and  intellectual  nature,  as  to  have  lost  his  belief  in  the  existence  of  God, 
cannot  be  allowed  to  give  evidence  in  a  court  of  justice.  The  People  v. 
McGarren,  17  Wend.  460;  Norton  v.  Ludd,  4  New  Hampshire,  444;  Smith 
V.  CofBn,  6  Shepley,  167 ;  Arnold  v.  Arnold,  13  Vermont,  362 ;  Scott  v. 
Hooper,  14  Id.  555.  And  in  Arnold  v.  Arnold,  it  was  said  that  a  witness 
who  does  not  believe  in  a  Divine  existence,  must  be  incompetent,  so  long  as 
the  sanction  of  an  oath,  or  of  some  form  equivalent  to  an  oath,  is  necessary 
to  the  validity  of  evidence.  "1{  the  witness,"  said  the  court  ''does  not 
believe  in  any  Supreme  Governor  of  the  universe,  who  will  reward  virtue, 
and  punish  vice,  there  is  no  mode  known  to  us,  by  which  an  oath  can  be 
made  binding  upon  his  conscience.  If  a  man  sincerely  believe  himself  to 
belong  to  the  highest  order  of  intelligences,  it  may  be  his  misfortune,  and 
not  his  fault ;  but  he  cannot  be  sworn  by  the  greater,  and  if  sworn  at  all, 
he  must  be  allowed  to  swear  by  himself."  It  was  further  said,  that  if  the 
witness  believed  in  God,  it  was  not  necessary  that  he  should  believe  in  a 
future  state  of  existence,  or  in  punishment  in  a  future  life. 

It  has,  notwithstanding,  been  held  in  Virginia,  that  a  scrutiny  into  the 
religious  belief  of  a  witness,  and  still  more  his  disqualification  on  the  ground 
of  his  want  of  belief,  is  a  violation  of  the  constitution  of  that  state,  and  an 
invasion  of  the  freedom  of  opinion  and  equality  of  legal  right,  to  which 
all  men  are  entitled  under  the  letter  and  spirit  of  the  constitution  of  the 
United  States;  Perry  v.  Case,  3  Grattan,  162. 

It  was  held  in  Jackson  v.  Gridley,  that  when  the  past  expressions  of  the 
witness  are  given  in  evidence,  for  the  purpose  of  proving  his  disbelief  and 
excluding  his  testimony,  he  cannot  restore  his  competency,  by  stating  that 
his  views  have  undergone  a  change,  and  that  he  has  become  a  believer.  This 
decision  has  been  followed  in  most  of  the  subsequent  cases;  and  the 
general  rule,  that  a  witness  who  is  shown  to  be  prima  facie  incompetent 
by  extrinsic  evidence,  cannot  be  heard  in  support  of  his  own  competency, 


0  M  I  C  II  U  N  D     V.     BARKER.  467 

tas  been  held  to  apply,  where  the  disqualification  consists  in  his  alleged  want 
of  religious  belief,  as  well  as  when  it  grows  out  of  his  interest  in  the  con- 
troversy; Curtis  V.  Strong,  4  Day,  51 ;  Scott  v.  Hooper,  14  Vermont,  555. 
The  State  v.  Townsend,  2  Harrington,  543 ;  Smith  v.  Coffin,  6  Shepley, 
157;  The  Commonwealth  v.  Wyman,  Thacher's  Crim.  Cases,  191.  It  was 
said  in  these  cases,  that  when  the  question  is  as  to  whether  an  oath  is  bind- 
ing on  the  conscience  of  the  witness,  it  is  absurd  to  swear  him  on  his  voir 
dire,  and  that  his  declarations  not  under  oath,  cannot  rebut  the  case 
made  out  against  him,  and  are  not  admissible  as  evidence  for  any  pur- 
pose. It  is  undoubtedly  true,  that  the  declarations  of  a  person  who 
has  not  been  sworn,  cannot  be  received  as  evidence  of  other  facts,  but 
when  they  ai-e  themselves  material  facts,  and  the  best  evidence  as  to  the 
point  in  controversy,  they  should  be  taken  into  consideration  by  the  court 
and  jury,  whether  brought  forward  directly,  or  through  the  medium  of 
witnesses.  Thus  admissions  made  in  open  court  by  the  parties,  are  as 
much  evidence  of  the  points  admitted,  as  if  they  were  made  antecedently, 
and  proved  by  the  relation  of  those  who  heard  them.  And  where  the  sanity 
of  a  third  person  is  in  issue,  although  his  declarations  out  of  court  may 
undoubtedly  be  given  in  evidence,  yet  his  language  and  statements, 
when  in  court,  not  only  may,  but  ought  to  be  regarded  as  important 
elements  of  decision.  The  same  rule  must  apply,  whether  the  question 
is  as  to  belief  or  sanity,  because  expression  is  in  both  cases  the  best  and 
primary  evidence  of  mental  condition.  If  this  were  not  so,  the  declarations 
of  the  witness  as  to  his  belief,  could  not  be  proved  in  court,  when  uttered 
out  of  it;  for  what  is  not  evidence  in  itself,  cannot  be  made  so  by  the  chan- 
nel through  which  it  is  communicated.  The  whole  question,  therefore,  is 
reduced  to  one  of  two  things  :  either  the  expressions  of  a  party  are  not  ori- 
ginal facts,  representing  his  impressions  or  belief,  and  should  not  be 
received  when  proved  by  the  testimony  of  others,  or  they  do  belong  to  that 
class  of  facts,  and  may  therefore  be  brought  directly  before  the  court,  as  the 
best  evidence  which  the  nature  of  the  case  admits  of.  And  the  argument 
that  no  weight  can  be  given  to  the  statements  of  a  witness,  when  his  com- 
petency is  in  question,  either  proves  too  much,  or  fails  altogether.  For  if  no 
credit  can  be  given  to  his  declarations  when  affirming  his  belief,  why  should 
they  be  credited  when  they  deny  it?  The  only  reason  which  can  be 
assigned  for  believing  his  statements  at  one  time  rather  than  another, 
is  the  diiFerence  of  the  circumstances  under  which  they  are  made.  It 
is  perhaps  true,  that  a  witness  may  be  induced  to  give  a  false  account 
of  his  religious  opinions  at  a  trial,  by  various  motives,  which  would 
not  exist  on  other  and  less  public  occasions.  But  the  influence  of  circum- 
stances, either  on  the  present  or  past  declarations  of  the  witness,  would 
seem  to  go  to  their  credibility,  rather  than  their  competency.  And  it  is 
evident  that  justice  cannot  be  done  in  an  investigation  into  the  mental  con- 
dition either  of  a  party  or  witness,  without  taking  into  view  the  account 
which  he  gives  of  himself  at  the  time,  as  well  as  that  which  he  has  given 
previously.      See  Cubbison  v.  McCreary,  2  W.  &  S.  262. 

H. 


468  smith's   leading    cases. 


[===210]  =^=SCOTT    V.    SHEPHERD. 


EASTER,  13  GEO.  3.-C.  P. 

[reported  2  BLACKSTONE,  892.] 

Trespass  and  aasault  will  lie  for  originally  throwiiifr  a  squib,  which,  after  having 
been  thrown  about  in  self  delence  by  other  persons,  at  last  put  out  the  plaintiff's 
eye. 

Trespass  and  assault  for  throwing,  casting,  and  tossing  a  lighted  squib 
at  and  against  the  plaintiif,  and  striking  him  therewith  on  the  face,  and  so 
burning  one  of  his  eyes,  that  he  lost  the  sight  of  it,  whereby,  &c.  On  not 
guilty  pleaded,  the  cause  came  on  to  be  tried  before  Nares,  J.,  last  sum- 
mer assizes  at  Bridgwater,  when  the  jury  found  a  verdict  for  the  plaintiff 
with  100^.  damages,  subject  to  the  opinion  of  the  court  on  this  case  :  On 
the  evening  of  the  fair-day  at  Milbourne  Port,  28th  October,  1770,  the 
defendant  threw  a  lighted  squih,  made  of  gunpowder,  &c.,  from  the  street 
into  the  market-house,  which  is  a  covered  building  supported  by  arches,  and 
enclosed  at  one  end,  but  open  at  the  other  and  both  the  sides,  where  a  large 
concourse  of  people  were  assembled  :  which  lighted  squib,  so  thrown  by 
the  defendant  fell  upon  the  standing  of  one  Yates,  who  sold  gingerbread, 
&c.  That  one  Willis  instantly,  and  to  prevent  injury  to  himself  and  the 
said  wares  of  the  said  Yates,  took  up  the  said  lighted  squib  from  off  the 
the  said  standing,  and  then  threw  it  across  the  said  market-house,  when  it 
fell  upon  another  standing  there  of  one  Ryal,  who  sold  the  same  sort  of 
wares,  who  instantly,  and  to  save  his  own  goods  from  being  injured,  took  up 
the  said  lighted  squib  from  off  the  said  standing,  and  then  threw  it  to 
another  part  of  the  said  market-house,  and  in  so  throwing  it  struck  the 
plaintiff,  then  in  the  said  market-house,  in  the  face  therewith,  and  the  com- 
r*om  b^stible  matter  then  bursting,  *put  out  one  of  the  plaintiff's  eyes. 
L  ~     -'  Qu.  If  this  action  be  maintainable  ? 

This  case  was  argued  last  term  by  Gli/71,  for  the  plaintiff,  and  Burland 
for  the  defendant :  and  this  Term,  the  Court  being  divided  in  their  judg- 
ment, delivered  their  opinions  seriatim. 

Nares,  J.,  was  of  opinion  that  trespass  would  lie  well  in  the  present  case. 
That  the  natural  and  probable  consequence  of  the  act  done  by  the  defendant 
was  injury  to  somebody,  and  therefore  the  act  was  illegal  at  common  law. 
And  the  throwing  of  squibs  has,  by  statute  W.  3,  been  since  made  a  nui- 
sance. Being  therefore  unlawful,  the  defendant  was  liable  to  answer  for 
the  consequences,  be  the  injury  mediate  or  immediate :    11  Hen.  7,  28,  is 


SCOTT     V.     SHEPHERD.  4G9 

express  that  mains  animus  is  not  necessary  to  constitute  a  trespass. 
So,  too,  1  Stra.  59G.  Hob.  lU.  T.  Jones,  205.  6  Edward  4,  7,  8.  Fitzh. 
Trespass,  110.  The  principle  I  go  upon  is  what  is  laid  down  in  Reynolds 
V.  Clarke,  Stra.  G34,  that  if  the  act  in  the  first  instance  be  unlawful,  tres- 
pass will  lie.  Wherever,  therefore,  an  act  is  unlawful  at  first,  trespass  will 
lie  for  the  consequences  of  it.  So,  in  12  Hen.  4,  trespass  lay  for  stopping 
a  sewer  with  earth,  so  as  to  overflow  the  plaintiff's  land.  In  26  Hen.  8,  8, 
for  going  upon  the  plaintiff's  land  to  take  the  boughs  off  which  had  fallen 
thereon  in  lopping.  See  also  Hardr.  60.  Reg.  108,  95.  6  Ed.  4,  7,  8. 
1  Ld.  Raym.  272.  Hob.  ISO.  Cro.  Jac.  122,  43.  F.  N.  B.  202,  [91  G.] 
I  do  not  think  it  necessary,  to  maintain  trespass,  that  the  defendant  should 
personally  touch  the  plaintiff;  if  he  does  it  by  a  mean,  it  is  sufficient.  Qui 
facit per  aliud  facit  per  se.  He  is  the  person  who,  in  the  present  case, 
gave  the  mischievous  faculty  to  the  squib.  That  mischievous  faculty  re- 
mained in  it  till  the  explosion.  No  new  power  of  doing  mischief  was  com- 
municated to  it  by  Willis  or  Ryal.  It  is  like  the  case  of  a  mad  ox  turned 
loose  in  a  crowd.  The  person  who  turns  him  loose  is  answerable  in  trespass 
for  whatever  mischief  he  may  do.  The  intermediate  acts  of  Willis  and 
Ryal  will  not  purge  the  original  tort  in  the  defendant.  But  he  who  does 
the  first  wrong  is  answerable  for  all  the  consequential  damages.  So  held  in 
King  V.  Huggins,  2  Lord  Raym.  1574.  Parkhurst  v.  Foster,  1  Lord  Raym. 
480.  Rosewell  v.  Prior,  12  Mod.  639.  And  it  was  declared  by  this  court, 
in  Slater  v.  Baker,  *M.  8  Gleo.  3,  2  Wils.  359,  that  they  would  not  p-^oio-j 
look  with  eagle's  eyes  to  see  whether  the  evidence  applies  exactly  or  L  ""  "J 
not  to  the  case ;  but  if  the  plaintiff  has  obtained  a  verdict  for  such  damages 
as  he  deserves,  they  will  establish  it  if  possible. 

Blachstone,  J.,  was  of  opinion  that  an  action  of  trespass  did  not  lie  for 
Scott  against  Shepherd,  upon  this  case.  He  took  the  settled  distinction  to 
be,  that  where  the  injury  is  immediate,  an  action  of  tresjyass  will  lie  ;  where 
it  is  only  consequential,  it  must  be  an  action  on  the  case  :  Reynolds  v. 
Clarke,  Lord  Raym.  1401,  Stra.  634;  Haward  v.  Bankes,  Burr.  1114; 
Harker  v.  Birkbeck,  Burr.  1159.  The  lawfulness  or  wdaiofuhiess  of  the 
original  act  is  not  the  criterion ;  though  something  of  that  sort  is  put  into 
Lord  Raymond's  mouth  in  Stra.  635,  where  it  can  only  mean,  that  if  the 
act  then  in  question,  of  erecting  a  spout,  had  been  in  itself  unlawful,  tres- 
pass might  have  lain  ;  but  as  it  was  a  lawful  act  ("upon  the  defendant's  own 
ground),  and  the  injury  to  the  plaintiff  only  consequential,  it  must  be  an 
action  on  the  case.  But  this  cannot  be  the  general  rule;  for  it  is  held  by 
the  court  in  the  same  case,  that  if  I  throw  a  log  of  timber  into  the  highway 
(which  is  an  unlawful  act),  and  another  man  tumbles  over,  and  is  hurt,  an 
action  on  the  case  only  lies,  it  being  a  consequential  damage ;  but  if  in 
throwing  it  I  hit  another  man,  he  may  bring  trespass,  because  it  is  an 
immediate  wrong.  Trespass  may  sometimes  lie  for  the  consequences  of  a 
lav.-ful  tict.  If  in  lopping  my  own  trees  a  bough  accidentally  falls  on  my 
neighbour's  ground,  and  I  go  thereon  to  fetch  it,  trespass  lies.  This  is 
the  case  cited  from  6  Edw.  4,  7.  But  then  the  entry  is  of  itself  an  imme- 
di;ite  wrong.  And  case  will  sometimes  lie  for  the  consequence  of  an 
unlawful  act.  If  by  false  imprisonment  I  have  a  special  damage,  as  if 
I  forfeit  my  recognizance  thereby,  I  shall  have  an  action  on  the  case ; 
per  PoAVELL,  J.,  11  Mod.  180.      Yet  here  the  original  act  was  unlawful, 


470  smith's   leading   cases. 

and  iu  the  nature  of  trespass.  So  that  lawful  or  unlav:ful  is  quite  out  of 
the  case;  the  solid  distinction  is  between  (//rec^  or  m?nec?ia«c  injuries  on 
the  one  hand,  and  mediate  or  consequential  on  the  other.  And  trespass 
never  lay  for  the  latter.  If  this  be  so,  the  only  question  will  be  whether 
the  injury  which  the  plaintiff  suffered  was  immediate  or  consequenticd  only; 
i-*oio-i  and  I  hold  it  to  be  the  latter.  *The  original  act  was,  as  against 
L  ''  '  J  Yates,  a  trespass ;  not  as  against  llyal  or  Scott.  The  tortious  act 
was  complete  when  the  squib  lay  at  rest  upon  Yates's  stall.  He,  or  any  by- 
stander, had,  I  allow,  a  right  to  protect  themselves  by  removing  the  squib, 
but  should  have  taken  care  to  do  it  in  such  a  manner  as  not  to  endamage 
others.  But  Shepherd,  I  think,  is  not  answerable  in  an  action  of  trespass 
and  assault  for  the  mischief  done  by  the  squib  in  the  new  motion  impressed 
upon  it,  and  the  new  direction  given  it,  by  either  Willis  or  Ryal ;  who  both 
were  free  agents,  and  acted  upon  their  own  judgment.  This  differs  it  from 
the  cases  put  of  turning  loose  a  wild  beast  or  a  madman.  They  are  only 
instruments  in  the  hand  of  the  first  agent.  Nor  is  it  like  diverting  the 
course  of  an  enraged  os,  or  of  a  stone  thrown,  or  an  arrow  glancing  against 
a  tree;  because  there  the  original  motion,  the  vis  imjyressa,  is  continued, 
though  diverted.  Here  the  instrument  of  mischief  was  at  rest,  till  a  new 
impetus  and  a  new  direction  are  given  it,  not  once  only,  but  by  two  succes- 
sive rational  agents.  But  it  is  said  that  the  act  is  not  complete,  nor  the 
squib  at  rest,  till  after  it  is  spent  or  exploded.  It  certainly  has  a  power  of 
doing  fresh  mischief,  and  so  has  a  stone  that  has  been  thrown  against  my 
windows,  and  now  lies  still.  Yet  if  any  person  gives  that  stone  a  new  mo- 
tion, and  does  farther  mischief  with  it,  trespass  will  not  lie  for  that  against 
the  original  thrower.  No  doubt  but  Yates  may  maintain  trespass  against 
Shepherd.  And,  according  to  the  doctrine  contended  for,  so  may  Ryal  and 
Scott.  Three  actions  for  one  single  act !  nay,  it  may  be  extended  in  infini- 
tum. If  a  man  tosses  a  football  into  the  street,  and,  after  being  kicked 
about  by  one  hundred  people,  it  at  last  breaks  a  tradesman's  windows,  shall 
he  have  trespass  against  the  man  who  first  produced  it?  Surely  only  against 
the  man  who  gave  it  that  mischievous  direction.  But  it  is  said,  if  Scott  has 
no  action  against  Shepherd,  against  whom  must  he  seek  his  remedy?  I  give 
no  opinion  whether  case  would  lie  against  Shepherd  for  the  consequential 
damage;  though,  as  at  present  advised,  I  think,  upon  the  circumstances,  it 
would.  But  I  think,  in  strictness  of  law,  trespass  would  lie  against  llyal, 
the  immediate  actor  in  this  unhappy  business.  Both  he  and  Willis  have 
exceeded  the  bounds  of  self-defence,  and  not  used  sufficient  circumspection 
r*-")!!!  ^'^  removing  the  danger  from  themselves.  The  *throwing  it  across 
L  "  -'  the  market-house,  instead  of  brushing  it  down,  or  throwing  [it]  out 
of  the  open  sides  into  the  street  (if  it  was  not  meant  to  continue  the  sport, 
as  it  is  called,)  was  at  least  an  unnecessary  and  incautious  act.  Not  even 
menaces  from  others  are  sufficient  to  justify  a  trespass  against  a  third  per- 
son; much  less  a  fear  of  danger  to  either  his  goods  or  his  person; — nothing 
but  inevitable  necessity;  Weaver  v.  Ward,  Hob.  134.  Dickenson  v.  Wat- 
son, T.  Jones,  205;  Gilbert  v.  Stone,  Al.  35,  Styl.  72.  So  in  the  case  put 
by  Bryan,  J.,  and  assented  to  by  Littleton  and  Cheke,  C  J.,  and  relied  on  in 
Raym.  407,  "  If  a  man  assaults  me,  so  that  I  cannot  avoid  him,  and  I  lift 
up  my  staff  to  defend  myself,  and,  in  lifting  it  up,  undesignedly  hit  another 
who  is  behind  me,  an  action  lies  by  that  person  against  me;  and  yet  I  did  a 


SCOTT    V.     SHEPHERD.  471 

lawful  act  iu  endeavouring  to  defend  myself.  But  none  of  tliese  great  law- 
yers ever  thought  that  trespass  would  lie,  by  the  person  struck,  against  him 
who  first  assaulted  the  striker.  The  cases,  cited  from  the  Register  and 
Hardres  are  all  of  immediate  acts,  or  the  direct  and  inevitable  effects  of  the 
defendant's  immediate  acts.  And  I  admit  that  the  defendant  is  answerable 
iu  trespass  for  all  the  dii'ect  and  inevitable  effects  caused  by  his  own  imme- 
diate act. — But  what  is  his  own  immediate  act  ?  The  throwing  the  squib  to 
Yates's  stall.  Had  Yates's  goods  been  burnt,  or  his  person  injured.  Shep- 
herd must  have  been  responsible  in  trespass.  But  he  is  not  responsible  for 
the  acts  of  other  men.  The  subsequent  throwing  across  the  market-house 
by  Willis  is  neither  the  act  of  Shepherd,  nor  the  inevitable  effect  of  it; 
much  less  the  subsequent  throwing  by  Ilyal.  Slater  v.  Barker  was  first  a 
motion  for  a  new  trial  after  verdict.  In  our  case  the  verdict  is  suspended 
till  the  determination  of  the  court.  And  though  after  verdict  the  court 
will  not  look  with  eagle's  eyes  to  spy  out  a  variance,  yet  when  a  question  is 
put  by  the  jury  upon  such  a  variance,  and  it  is  made  the  very  point  of  the 
cause,  the  court  will  not  wink  against  the  light,  and  say  that  evidence,  which 
at  most  is  only  applicable  to  an  action  on  the  case,  will  maintain  an  action 
of  trespass.  2.  It  was  an  action  on  the  case  that  was  brought,  and  the 
court  held  the  special  case  laid  to  be  fully  proved.  So  that  the  present 
question  could  not  arise  upon  that  action.  3.  The  same  evidence  that  will 
maintain  trespass,  may  also  ^frequently  maintain  case,  but  not  e  con-  ^^^  _.. 
verso.  Every  action  of  trespass  with  a  "per  quod"  includes  an  ^  ^  ^ 
action  on  the  case.  I  may  hring  trespass  for  the  immediate  injury,  and 
snhjoin  a  '''per  quod"  for  the  consequential  damages; — or  may  hring  case 
for  the  consequential  damages,  anrl pass  over  the  immediate  injury,  as  in  the 
case  from  11  Mod.  180,  before  cited. f  But  if  I  bring  trespass  for  an  imme- 
diate injury,  and  prove  at  most  only  a  consequential  damage,  judgment  must 
be  for  the  defendant;  Gates  and  Bailey,  Tr.  6  Geo.  3,  2  Wils.  313.  It  is 
said  by  Lord  Raymond,  and  very  justly,  in  Reynolds  and  Clarke,  "we  must 
keep  up  the  boundaries  of  actions,  otherwise  we  shall  introduce  the  utmost 
confusion."  As  I  therefore  think  no  immediate  injury  passed  from  the 
defendant  to  the  plaintiff  (and  without  such  immediate  injury  no  action  of 
trespass  can  be  maintained,)  I  am  of  opinion  that  in  this  action  judgment 
ought  to  be  for  the  defendant. 

Goidd,  J.,  was  of  the  same  opinion  with  Nares,  J.,  that  this  action  was 
well  maintainable.  The  whole  difficulty  lies  in  the  form  of  the  action,  and 
not  in  the  substance  of  the  remedy.  The  line  is  very  nice  between  case  and 
trespass  upon  these  occasions:  I  am  persuaded  there  are  many  instances 
wherein  both  or  either  will  lie.  I  agree  with  Brother  Nares,  that  wherever 
a  man  does  an  unlawful  act,  he  is  answerable  for  all  the  consequences;  and 
trespass  will  lie  against  him,  if  the  consequence  be  in  nature  of  trespas.s. 
But,  exclusive  of  this,  I  think  the  defendant  inay  be  considered  in  the  s;imc 
view  as  if  he  himself  had  personally  thrown  the  squib  in  the  plaintiff's  face. 
The  terror  impressed  upon  Willis  and  Ilyal  excited  self-defence,  and  deprived 
them  of  the  power  of  recollection.  What  they  did  was  therefore  the  inev- 
itable consequence  of  the  defendant's  unlawful  act.  Had  the  squib  been 
thrown  into  a  coach  full  of  company,  the  person  throwing  it  out  again  would 
not  have  been  answerable  for  the  consequences.  What  Willis  and  Ilyal  did 
t  Wells  V.  Ody,  5  Dowl.  05. 


472  smith's    leading    cases. 

was  by  necessity,  and  the  defendant  imposed  tbat  necessity  upon  them.  As 
to  the  case  of  the  football,  I  think  that  if  all  the  people  assembled  act  in 
concert,  they  are  all  trespassers;  1.  from  the  general  mischievous  intent; 
2.  from  the  obvious  and  natural  consequences  of  such  an  act :  which  rea- 
soning will  equally  apply  to  the  case  before  us.  And  that  actions  of  tres- 
pass will  lie  for  the  mischievous  consequences  of  another's  act,  whether 
r*9iri  *^^^fiil  or  unlawful,  appears  from  their  being  maintained  for  acts 
L  -'  done  in  the  plaintiff's  own  land  :  Hardr.  69 ;  Courtney  v.  Collet,  1 
Lord  Raym.  272.  I  shall  not  go  over  again  the  ground  which  Brother 
Nares  has  relied  on  and  explained,  but  concur  in  his  opinion,  that  this  action 
is  supported  by  the  evidence. 

De  Grey,  C.  J This  case  is  one  of  those  wherein  the  line  drawn  by 

the  law  between  actions  on  the  case  and  actions  of  trespass  is  very  nice  and 
delicate.  Trespass  is  an  injury  accompanied  with  force,  for  which  an  action 
of  trespass  vi  et  armis  lies  against  the  person  from  whom  it  is  received. 
The  question  here  is,  whether  the  injury  received  by  the  plaintiff  arises 
from  the  force  of  the  original  act  of  the  defendant,  or  from  a  new  force  by 
a  third  person.  I  agree  with  my  brother  Blackstone  as  to  the  principles  he 
has  laid  down,  but  not  in  his  application  of  those  principles  to  the  present 
case.  The  real  question  certainly  does  not  turn  upon  the  lawfulness  or 
unlawfulness  of  the  original  act ;  for  actions  of  trespass  will  lie  for  legal 
acts  when  they  become  trespasses  by  accident;  as  in  the  cases  cited  of 
cutting  thorns,  lopping  of  a  tree,  shooting  at  a  mark,  defending  oneself 
by  a  stick  which  strikes  another  behind,  &e. — They  may  also  not 
lie  for  the  consequences  even  of  illegal  acts,  as  that  of  casting  a  log  in  the 
highway,  &c.  But  the  true  question  is,  whether  the  injury  is  the  direct  and 
immediate  act  of  the  defendant :  and  I  am  of  opinion  that  in  this  case  it  is. 
The  throwing  the  squib  was  an  act  unlawful,  and  tending  to  affright  the 
bystander.  So  far  mischief  was  originally  intended;  not  any  particular 
mischief,  but  mischief  indiscriminate  and  wanton.  Whatever  mischief 
therefore  follows,  he  is  the  author  of  it; — Eyreditur  personam,  as  the 
phrase  is  in  criminal  cases.  And  though  criminal  cases  are  no  rule  for  civil 
ones,  yet  in  trespass  I  think  there  is  an  analogy.  Every  one  who  does  an 
unlawful  act  is  considered  as  the  doer  of  all  that  follows ;  if  done  with  a 
deliberate  intent,  the  consequence  may  amount  to  murder;  if  incautiously, 
to  manslaughter;  Fost.  261.  So  too,  in  1  Ventr.  295,  a  person  breaking  a 
horse  in  Lincoln's  Inn  Fields  hurt  a  man ;  held,  that  trespass  lay :  and  2 
Lev.  172,  that  it  need  not  be  laid  scienter.  I  look  upon  all  that  was  done 
subsequent  to  the  original  throwing  as  a  continuation  of  the  first  force  and 
^^,_-,  first  act,  *  which  will  continue  till  the  squib  was  spent  by  bursting. 
L  "  ^  And  I  think  that  any  innocent  person  removing  the  danger  from 
himself  to  another  is  justifiable;  the  blame  lights  upon  the  first  thrower. 
The  new  direction  and  new  force  flow  out  of  the  first  force,  and  are  not  a 
new  trespass.  The  writ  in  the  Register,  95,  a,  for  trespass  in  maliciously 
cutting  down  a  head  of  water,  which  thereupon  flowed  down  to  and  over- 
whelmed another's  pond,  shows  that  the  immediate  act  needs  not  be  instanta- 
neous, but  that  a  chain  of  effects  connected  together  will  be  suflicient.  It 
has  been  urged  that  the  intervention  of  a  free  agent  will  make  a  difference; 
but  I  do  not  consider  Willis  and  Eyal  as  free  agents  in  the  present  ease,  but 


S  C  0  T  T    V.     SHEPHERD. 


47B 


acting  under  a  compulsive  necessity  for  their  own  safety  and  self-preserva- 
tion. On  these  reasons  I  concur  with  Brothers  G-ould  and  Nares  that  the 
present  action  is  maintainable. 

Posted  to  the  plaintiff. 


It  is  perfectly  clear,  that  if  an  injury 
be  done  to  A,,  by  the  immediate  force  of 
B.,  the  former  may  bring  trespass ;  and 
it  is  equally  clear  that  if  the  injury  be 
not  immediate,  but  merely  consequential, 
he  cannot  sue  in  trespass;  and  that  his 
remedy,  if  any,  is  by  action  on  the  case 
for  consequential  damages;  these  two 
propositions  are  well  illustrated  by  the 
case  put  in  the  text  of  a  man  throwing 
a  log  into  the  highway.  If  the  log  strike 
A.  in  its  fall,  he  may  sue  in  trespass ; 
but  if,  after  it  is  lodged,  and  rests  upon 
the  ground,  he  stumble  over  it,  and  so 
receive  an  injury,  case  is  his  only  reme- 
dy. See  Com.  Di.  Pleader  Action  on 
the  case,  (A.)  ibid.  (B.  6; ;  Leame  v. 
Bray,  3  East,  593 ;  Covell  v.  Laming,  1 
Camp.  697;  Chandler  v.  Broughton,  1 
Cr.  &  Mee.  29  ;  3  Tyrwh.  220.  [Hart- 
ley V.  Monham,  3  Q.  B.  701 ;  West  v. 
Nibbs,  4  C.  B.  172,  where  a  mere  de- 
tainer of  goods  (by  locking  them  up, 
and  refusing  access  to  them)  was  held 
to  be  no  trespass.  But  the  continuance 
of  a  trespass,  though  without  fresh  vio- 
lence, is  a  new  trespass ;  thus,  in  the 
case  above  put,  if  the  log  were  thrown 
upon  A.'s  land,  so  as  to  be  a  trespass  to 
the  realty,  he  might,  after  having  re- 
covered damages  in  trespass  for  placing 
it  there,  sue  in  trespass  again  for  its 
continuance.  Holmes  v.  Wilson,  10  A. 
&  E.  .503 ;  Thompson  v.  Gibson,  7  M.  & 
W.  456.  For  there  is  a  legal  obligation 
upon  the  wrong  doer  to  discontinue  a 
trespass  or  remove  a  nuisance  ;  though 
there  is  no  such  obligation  upon  a  tres- 
passer to  replace  what  he  has  destroyed, 
albeit  he  is  liable  in  one  action  of  tres- 
pass to  compensate  in  damages  the  loss 
which  he  has  occasioned.  Clegg  v.  Dear- 
den,  12  Q.  B.  576.] 

However,  although  trespass  lies  wher- 
ever the  injury  done  to  the  plaintiff  re- 
sults from  the  immediate  force  of  the 
defendant,  still  there  are  many  instances 
in  which  the  plaintiff,  though  he  may 
adopt  that  form  of  action,  is  not  bound 
to  do  so,  but  may  sue  in  case.  In  More- 
ton  v.  Hardern,  4  B.  &  C.  224,  the  de- 
claration   stated    that    the   defendants 


drove  their  coach  so  negligently  and 
carelessly  that  the  wheel  ran  with  great 
force  against  the  plaintiff,  whereby  one 
of  his  legs  was  broken.  It  was  proved 
that  one  of  the  defendants  was  person- 
ally driving  when  the  accident  occurred ; 
and  it  was  thereupon  urged  that  the 
action  should  have  been  trespass,  not 
case.  The  court,  however,  decided  that 
the  case  would  lie,  and  Bayley,  J.,  gave 
the  following  historical  account  of  the 
progress  of  the  law  upon  this  subject. 
"  It  was  long,"  said  his  lordship,  "  vexata 
qucBstio,  whether  case  could  be  brought 
when  the  defendant  was  personally  pre- 
sent, and  acting  in  that  which  occasion- 
ed the  mischief  Early  in  my  profes- 
sional experience,  case  was  the  form  of 
action  usually  adopted  for  such  injuries. 
In  Lord  Kenyon's  time  a  doubt  was 
raised  upon  the  point,  and  he  thought 
that,  where  the  act  was  immediately  in- 
jurious, trespass  was  the  only  action  that 
could  be  maintained  for  that  injury. 
Leame  v.  Bray  was  an  action  of  trespass. 
On  the  trial.  Lord  EUenborough  thought 
it  should  have  been  case,  but  on  further 
consideration  this  court  was  of  opinion 
that  trespass  was  maintainable,  but  they 
did  not  decide  that  an  action  on  t!ie  case 
would  have  been  improper.  Looking  at 
the  other  cases  on  the  subject,  it  is  diffi- 
cult to  say  that  an  action  on  the  case  will 
not  lie  for  an  injury  sustained  by  poiHl 
the  negligent  ^driving  of  a  coach,  •-  -' 
though  one  of  the  proprietors  was  the 
person  guilty  of  that  negligence.  In 
Ogle  v.  Barnes,  8  T.  R.  188,  which  was 
an  action  for  negligently  steering  a  ship, 
the  declaration  alleged  that  the  ship  was 
under  the  care  of  Barnes,  one  of  ihe 
defendants,  and  of  certain  servants  of  the 
defendants,  and  that  through  their  negli- 
gence the  injury  was  sustained:  and  it 
was  never  urged  that  the  action  sliould 
have  been  trespass  and  not  case,  because 
one  of  the  defendants  was  on  board,  but 
on  the  ground  of  the  injury  being  imme- 
diate. In  Rogers  v.  Imbledon,  2  N.  R. 
]  17,  which  was  decided  after  Leame  v. 
Bray,  it  was  alleged  that  the  defendant 
was  driving  a  cart,  and  took  such  bad 


474 


SMITHS  LEADING  CASES. 


care  of  the  cart  and  liorso,  that  it  ran 
with  great  force  against  the  plaintiff's 
horse.  'I'o  that  tliere  was  a  demurrer 
upon  the  authority  of  Leame  v.  Bray, 
the  action  being  in  case;  but  the  court 
was  clearly  of  opinion  that  case  would 
]ie,  and  the  demurrer  was  overruled. 
In  Huggett  V.  Montgomery,  2  N.  R. 
440,  although  the  defendant  was  on 
board,  yet  the  ship  was  not  under  his 
immediate  care  and  management,  but 
under  that  of  a  pilot;  and  on  that  ground 
case  was  held  to  be  the  proper  form  of 
action.  It  is  not  necessary  to  :say  that 
trespass  could  not,  in  this  case,  have 
been  sustained  against  Ilardern ;  no 
doubt  that  action  lies  where  an  injury 
is  inflicted  by  the  wilful  act  of  the  de- 
fendant; but  there  is  no  doubt  that  case 
also  lies  where  the  act  is  negligent,  and 
not  wilful."  This  judgment  has  been 
cited  at  some  length,  because  it  contains 
a  complete  history  of  the  progress  of  the 
law  up  to  the  decision  in  Moreton  v.  Hard- 
ern.  The  right  of  the  plaintiff  to  bring 
case,  where  the  act  for  which  he  sues,  al- 
though committed  with  immediate  force, 
is  negligent,  not  wilful,  is  fully  esta- 
blished in  Williams  v.  Holland,  10  Bingh. 
113,  where  all  the  previous  cases  having 
any  bearing  on  the  subject,  will  be  found 
collected  in  the  argument  of  Jones,  Ser- 
jeant. The  declaration  charged  that  the 
defendant  so  carelessly,  unskilfully,  and 
improperly  drove  his  gig,  that  through 
the  carelessness,  negligence,  unskilful- 
ness,  and  improper  conduct  of  the  defend- 
ant, the  said  gig  struck  with  great  vio- 
lence against  the  cart  and  horse  of  the 
plaintiff.  The  jury  having  found  a  ver- 
dict of  guilty  on  the  ground  of  negli- 
gence, it  was  objected  that  the  action 
should  have  been  trespass,  not  case  ;  but 
the  Court  of  Common  Pleas  were  of 
opinion  that  Moreton  v.  Ilardern  had 
"  laid  down  a  plain  intelligible  rule,  that 
where  the  injury  is  occasioned  by  the 
carelessness  and  negligence  of  the  de- 
fendant, the  plaintiff  is  at  liberty  to 
bring  an  action  on  the  case,  notwith- 
standing the  act  is  immediate,  so  long 
as  it  is  not  a  wilful  act."  See  also 
Wheatly  v.  Patrick,  2  Mee.  &,  Welsh. 
651;  and  there  are  other  instances  in 
which  the  plaintiff  has  his  choice  of  case 
and  trespass  as  where  one  man  builds 
his  house  overhanging  that  of  another, 
so  that  the  rain  falls  on  it.  Wells  v.  Ody, 
Judgment  of  Parke,  B.,  1  M.  &  W.  402  ; 
Raine  v.  Alderson,  4  Bing.  N.  C.  702. 
[Fay  v.  Prentice,  1  C.   B.  828.)     It  is, 


however,  clear  from  Leame  v.  Bray,  and 
Chandclor  v.  Broughton,  1  Cr.  &  Mee. 
29,  3  Tyrwh.  220,  that  the  plaintiff  may, 
if  he  please,  bring  trespass,  whenever 
the  injury  is  immediate,  even  though  it 
be  not  wilful;  and  it  is  equally  clear 
that,  where  the  injury,  lohich  forms  the 
gist  of  the  action,  is  both  wilful  and  im- 
mediate, trespass  is  the  only  remedy. 
Savignac  v.  Roome,  6  T.  R.  125 ;  Day 
v.  Edwards,  5  T.  R,  648;  Wheeton  v. 
Woodcock,  7  Dowl.  853,  2  M.  &  W. 
587,  S.  C.  The  words  "  which  forms 
the  gist  of  the  action^'  are  printed  in 
italics,  because  it  is  apprehended  that 
the  proposition  laid  down  by  Blackstone, 
J.,  in  the  text,  p.  21.5,  is  correct,  viz.  that 
wherever  a  trespass  occasions  conse- 
quential damage,  the  trespass  itself  may 
be  waived,  and  case  brought  for  the 
consequential  damage.  See  Wells  v. 
Ody,  5  Dowl.  95;  Raine  v.  Alderson,  4 
Bing.  N.  C.  702 ;  [Chamberlain  v.  Hazle- 
wood,  5  Mee.  &  W.  51-5.]  See,  how- 
ever, the  judgment  of  Parke,  B.,  in 
Weeton  v.  Woodcock,  7  Dowl.  857 ;  5 
M.  &  W.  587,  S.  C.  In  Comyns's 
Digest,  Action  on  the  Case,  (B.  0),  the 
distinction  is  clearly  stated  as  follows, 
viz.  "  So  it  (i.  e.  case)  does  not  lie  for 
a  mere  trespass,  as  for  taking  down  the 
walls  and  pulling  down  the  tiles  from  a 
house,  unless  it  be  alleged  that  the  tim- 
ber was  thereby  rotted,  1  Roll.  104." 

Where  the  defendant  elects  to  sue  in 
case  for  an  immediate  but  negligent  act 
of  violence,  he  must  pay  much  attention 
to  the  wording  of  hisdeclaration,  and  take 
care  to  introduce  no  expressions  which 
import  an  exertion  of  wilful  force.  In 
Day  V.  Edwards,  5  T.  R.  648,  a  declara- 
tion in  case  alleged  that  the  defendant 
"so  furiously,  negligently,  and  impro- 
perly drove  his  cart  and  horse,  that 
through  \.\\e  furious,  negligent,  and  im- 
proper conduct  of  the  defendant,  the 
cart  and  horse  were  driven  against  the 
plaintiff's  carriage."  This  was  held 
bad  on  special  demurrer;  and  is  dis- 
tinguished from  Williams  v.  Holland,  by 
Tindal,  C.  J.,  on  the  ground  that  the 
declaration  imported  wilful  violence,  10 
Bing.  116.  There  is  sometimes  a  good 
deal  of  difficulty  in  determining  whe- 
ther a  count  be  in  case  or  trespass,  see 
Hensvvorth  v.  Fowkes,  4  B.  «Sc  Ad.  461. 
Smith  V.  Goodwin,  Ibid.  413.  Holland 
V.  Bird,  10  Bing.  15.  [Hudson  v.  Nichol- 
son, 5  M.  &  W.437;  Holford  v.  Bailey, 
8  Q.  B.  1000.] 

There  are  other  instances  in  which 


1 


SCOTT    V.     SHEPHERD. 


475 


trespass  ant]  case  lie  concurrently. 
Where  goods  are  tortious]}'  taken  out  of 
the  plaintiff's  possession,  trover,  which  is 
a  form  of  action  on  the  case,  may  be  main- 
tained for  the  conversion,  whicli,  and 
not  the  tortious  taking;  is  then  the  gist 
of  the  action  ;  and  "  if  trover  will  lie 
which  is  only  a  subdivision  of  action  on 
r*2101  ^^^  *case,  why  should  not  case 
'■  -'  also  in  its  more  expanded  form?" 
per  Tindal,  C.  J.,  in  Holland  v.  Bird,  10 
Bing-.  18.  In  that  case  the  form  of  the 
count  was,  that  the  defendant  having' 
distrained  the  plaintift''s  goods  for  rent, 
the  plaintiff  tendered  the  rent  in  arrear 
and  the  cost  of  the  distress,  which  the 
defendant  ought  to  have  accepted  and 
re-delivered  plaintiff's  goods,  but  wrong- 
fully refused  so  to  do :  this  was  held  the 
proper  subject  of  an  action  on  the  case. 
See  on  the  same  point  Cranscombe  v. 
Bridges,  1  B.  it  C.  145.  Smith  v.  Good- 
win, 4  B.  &  Ad.  413.  [West  v.  Nibbs, 
4  C.  B.  Yi'2.  And  a  wrongful  seizure 
under  a  second  distress  was  made  the 
subject  of  an  action  on  the  case  in  Lear 
V.  Caldecott,  4  Q.  B.  123,  Dawson  v. 
Cropp,  1  C.  B.  961.] 

Another  class  of  cases,  and  certainly 
rather  an  anomalous  one,  comprehends 
actions  for  criminal  conversation  and  for 
seduction;  for  both  which  injuries  tres- 
pass and  case  are  held  to  lie  concurrent- 
ly. See  2  T.  R.  167,  6  East,  388.  In 
Woodward  v.  Walton,  2  New  Rep.  476, 
the  declaration  contained  two  counts; 
the  first  stating  that  the  defendant  broke 
and  entered  the  plaintiff's  house,  and 
there  assaulted  and  debauched  his  daugh- 
ter; the  second  omitted  the  breaking 
and  entering  the  dwelling-house,  but 
stated  that  the  defendant  assaulted  and 
debauched  his  daughter,  per  quod  servi- 
iium  amisit.  On  a  motion  to  arrest 
judgment  the  question  was  learnedly 
argued,  and  the  previous  authorities  on 
both  sides  cited  ;  and  the  court,  after 
consideration,  were  of  opinion  that  the 
action  was  rightly  brought.  "  In  actions 
like  the  present,"  said  Sir  J.  Mansfield, 
C.  J.,  delivering  judgment,  "as  far  as 
my  recollection  goes,  the  form  of  the 
declaration  lias  always  been  in  trespass, 
vi  et  urmis  et  contra  pacem.  1  cannot  dis- 
tinguish between  this  action  and  an  ac- 
tion for  criminal  conversation.  If  that  be 
the  subject  of  trespass,  this  must  be  so  too. 
In  the  action  for  criminal  conversation 
r  *''>1Q  1  ^^^  violence  is  not  the  *ground 
^  "  '  -I  of  the  action:  both  in  that  case 
and  this,  if  the  injury  were  committed 


with  violence,  it  would  amount  to  a  rape. 

1  therefore  do  not  see  any  good  reason 
why  either  of  them  should  be  the  subject 
of  an  action  of  trespass.  In  actions  by  a 
master  for  an  assault  on  his  servant,  per 
quod  servitium  amisit,  there  is  no  tres- 
pass against  the  plaintiff;  the  sole  foun- 
dation of  the  action  is  the  loss  of  service. 
Yet  this  also  has  been  considered  as  an 
action  of  trespass.  All  these  cases  are 
the  same  in  principle,  and  fall  within 
the  same  rule."  His  lordship  then  cited 
and  commented  upon  several  of  the  au- 
thorities, and  concluded  by  stating  him- 
self perfectly  satisfied  that  the  injury 
complained  of  was  the  subject  of  an  ac- 
tion of  trespass,  accord.  Dilcham  v.  Bond, 

2  M.  &  S.  436;  Where  Woodward  v. 
Walton  was  recognised,  and  acted  upon  ; 
[and  on  the  same  principle  proceeded 
the  case  of  a  nun  at  Common  Law,  for 
whose  abduction  from  her  cloister  an  ac- 
tion of  trespass  lay  by  her  prioress;  for 
Lord  Coke  informs  us,  2  Inst.  436,  that 
where  a  monk  was  carried  out  of  his 
cloister,  the  Register  had  provided  a 
writ  <Ze  Apostata  Capiendo.  "But  (he 
continues)  that  writ  doth  not  lie  for  a 
nun,  and  therefore  the  common  law  did 
give  an  action  of  trespass  for  taking  her 
away,"  and  he  says  that  the  stat.  of 
West.  2,  c.  34  :  "  Qui  monialem  a,  domo 
sua  abducat  licet  monialis  consentiat, 
&c.,  was  for  further  punishment  only,  2 
Inst.  436.  It  is  clear,  however,  that  for 
both  criminal  conversation  and  seduc- 
tion case  may  be  maintained  as  well  as 
trespass,  Chamberlain  v.  Hazlevvood,  5 
Mee.  &  W.  515,  and  the  same  in  other 
cases  where  the  injury  is  occasioned  by 
an  immediate  act  done  to  the  servant; 
but  where  it  is  of  such  a  character  that 
the  remedy  of  the  servant  would  be  by 
action  on  the  case,  so  likewise  is  that  of 
the  master.  Martinez  v.  Gerber,  3  M. 
&Gr.  88;  3  Sc.  N.  R.  386,  S.  C] 

One  class  of  cases,  illustrative  of  the 
distinction  between  case  and  trespass, 
consists  of  those  in  which  the  subject- 
matter  of  complaint  is  an  arrest.  If  one 
man  maliciously,  and  without  probable 
cause,  procure  another  to  be  arrested 
either  by  civil  or  criminal  process,  that 
is  the  subject-matter  of  an  action  on  the 
case,  for  the  tort  consists  not  in  any  im- 
mediate violence  to  the  plaintiff's  per- 
son, but  in  communicating  an  improper 
direction  to  the  process  of  the  law,  Elsee 
v.  Smith,  1  D.  &  R.  97;  [Brown  v.  Chap- 
man, C.  P.,  T.  1848; "and  it  is  held  that 
trespass  will  not  lie  against  a  man  who 


476 


SMITH    S     LEADTNQ     CASES. 


merely  states  his  case  to  a  court  of  jus- 
tice, in  consequence  of  vvliicli  it  issues 
void  process.  Carratt  v.  Morley,  1  Q. 
R  19;  and  this  however  urg'ent  he  may 
be,  as  tliou<rh  he  say  he  will  take  the 
process  at  liis  peril  or  the  like  and  even 
prepare  it,  provided  he  take  no  part  in 
executing  it,  Cooper  v.  Hardinjj,  7  Q. 
r*oin/  1  S-  09>]  but  if  the  defendant, 
•-  "^  J  *without  having-  recourse  to 
legal  process,  make  the  arrest,  or  assist 
in  making-  it,  of  his  own  autliority,  or 
direct  a  constable  to  make  it,  the  remedy 
is  trespass,  for  in  that  case  he  commits 
an  unwarranted  act  of  violence.  Stone- 
house  v.  Elliott,  6  T.  R.  315;  [West  v. 
Smallwood,  3  M.  &  W.  418;  Green  v. 
Eigie,  5  Q.  B.  99;]  and  so  it  is  if  he 
come  armed  without  void  process,  for 
that  is  as  none,  [Parsons  v.  Lloyd,  3 
Wils.  341;  Carratt  v.  Morley,  1  Q.  B. 
19.]  See  Bates  v.  Pilling,  6  B.  &  C. 
38;  as,  for  instance,  if  it  describe  the 
defendant  by  a  name  by  which  he  is  not 
known,  Finch  v.  Cocken,  .5Tyrwh.  775; 
2  C.  M.  &  R.  19G,  S.  C. ;  [Eloye  v.  Bush, 
2  Scott,  N.  R.  86 ;]  though  it  is  other- 
wise if  the  process  be  merely  irregular, 
for  then  it  stands  good  until  set  aside, 
Riddell  v.  Pakeman,  5  Tyrvvh.  721.  But 
when  set  aside  it  is  as  none;  [see  Col- 
lins V.  Beaumont,  10  Ad.  &  E.  225;] 
and  in  Codrington  v.  Lloyd,  8  Ad.  &  E. 
449,  the  fact  that  it  had  been  set  aside 
was  replied  :  the  attorney  in  such  a  case 
is  liable  as  well  as  the  plaintiff,  ibid.  [It 
is  necessary,  however,  to  show,  in  such 
a  replication,  that  the  writ  was  set  aside 
for  breach  of  faith  or  irregularity,  be- 
cause if  it  were  set  aside  only  for 
ground  of  error,  no  action  would  lie  even 
against  the  party  or  his  attorney";  Pren- 
tice V.  Harrison,  4  Q.  B.  852 ;  see  as  to 
the  mode  of  pleading,  Rankin  v.  De  Me- 
dina, 1  C.  B.  183;  Brown  v.  Jones,  15 
M.  &.  W.  191.  See,  however,  what  was 
said  by  Lord  Abinger,  C.  B.,  in  Small  v. 
Attwood,  3  You.  &  Col.  129.  And  pro- 
cess set  aside  for  irregularity  will  still 
protect  the  officer;  as  will  likewise  pro- 
cess founded  on  a  judgment  which  is 
void  for  want  of  jurisdiction  of  which  he 
has  no  notice,  Andrews  v.  M arris,  1  Q. 
B.  1.  Yet,  even  the  officer  is  not  pro- 
tected where  he  has  notice  of  the  defect 
of  jurisdiction,  Watson  v.  Bodell,  14  M. 
&  W.  57. 

Upon  a  similar  principle  to  that  which 
governs  the  cases  mentioned  above,  it 
is  held  that  trespass  will  not  he  for  suing 
out  execution  and  arresting  thereon  a 


man  discharged  by  an  insolvent  debtors' 
act,  Ewart  v.  Jones,  14  M.  &  W.  774; 
Yearsley  v.  lleane,  14  M.  &  W.  322; 
and  in  such  a  case  there  is,  it  seems,  no 
remedy,  unless  the  arrest  be  made  mali- 
ciously, (Did  without  reasonable  or  pro- 
bable cause.  The  same  law  seems  ap- 
plicable to  the  arrest  of  a  person  who 
has  some  personal  privilege ;  see  Mag- 
nay  V.  Burt,  5Q.  B.  381 ;  whilst,  on  the 
other  hand,  for  the  continuance  of  an 
imprisonment  after  it  has  ceased  to  be 
legal,  trespass  is  the  appropriate,  when 
under  the  circumstances  there  is  any, 
remedy,  ibid.] 

In  Briant  v.  Clutton,  5  Dowl.  GO,  it 
was  held  that  if  defendant  impri.son  plain- 
tiff by  the  process  of  a  superior  court,  and 
plaintiff  bring  trespass,  he  will  make  out 
a  prima  facie  case  by  showing  the  impri- 
sonment in  consequence  of  *de-  r%9iq  I 
fendant's  act;  and  defendant,  '-  ^ 

to  discharge  himself,  must  plead  speci- 
ally, S,  P.  Sowell  V.  Champion,  6  Ad.& 
E.  416,  per  curiam.  [See  Randle  v. 
Little,  6  Q,.  B.  17;  and  where  it  was 
the  regular  course  of  proceeding  of  an 
inferior  court,  for  the  judge  on  a  verdict 
being  found  to  issue  execution,  the  fact 
of  a  plaintiff  bringing  his  plaint  in  that 
court  and  not  countermanding  the  exe- 
cution, was  considered  sufficient  evi- 
dence of  authority  for  executing  it,  to 
render  him  prima  facie  liable  in  trespass 
for  a  levy  regularly  made,  so  as  to  throw 
upon  him  the  onus  of  justifying  under 
the  process  of  the  court  if  he  could. 
Coomer  v.  Latham,  16  M.  &,  W.  713.] 
But  the  necessity  of  pleading  specially 
only  exists  where  the  judgment  has 
been  legally  proceeded  on,  so  as  to  jus- 
tify the  act  done  by  the  officer;  for 
where  the  attorney's  defence  is  that  he 
sued  out  a  legal  writ  on  a  legal  judg- 
ment, and  that  the  sheriff  of  his  own 
lorong  executed  it  illegally,  that  is  a 
defence  under  not  guilty,  Sowell  v. 
Champion,  ubi  supra. 

When  a  count  in  trespass  is  impro- 
perly substituted  for  one  in  case,  or  vice 
versa,  or  when  trespass  and  case  are 
misjoined,  the  mistake  may  be  taken  ad- 
vantage of  on  general  demurrer,  mo- 
tion in  arrest  of  judgment,  or  writ  of 
error.  Savignac  v.  Roome,  6  T.  R.  125 ; 
see  Cowp.407;  1  B.  &P.476;  Weeton 
V.  Woodcock.  7  Dowl.  8-53.  [llolford  v. 
Bailey,  8  Q.  B.  1000  (now,  September, 
1848,  in  the  Exchequer  Chamber  on  a 
writ  of  error.)  When,  however,  a  count 
commences  with  the  statement  of  a  writ 


SCOTT    V.     SHEPHERD.  477 

in  case,  and  contains  a  complaint  whicli  liap.s  good  unless  specially  doinurred  to  ; 
is  the  subject-matter  of  an  action  of  tros-  Hudson  v.  Nicholson,  5  M.  >V.  W.  437; 
pass,  it  is  good  after  verdict,  and  per-     see  Brown  v.  Boorman,  11  CI.  &.  F.  1.] 


The  actions  of  trespass  vi  et  armis,  anJ  trespass  on  the  case,  arc  as  \Yell 
distinguished  in  principle,  as  any  other  two  actions  in  the  law. 

Physical  force,  however  slight,  against  the  person  or  possession  of  ano- 
ther, is,  in  itself,  and  essentially,  without  regard  to  the  motive,  unlawful, 
Siud  is  the  (/ist  or  (/ravcwien  oi  the  action  of  trespass  vi  et  armis.  "The 
criterion  or  trespass,  is,  force  directly  applied  :"  C.  J.  TiLGHMAN,  in  Smith 
and  another  v.  Rutherford  and  another,  2  Sergeant  &  Rawle,  35S. 

Trespass  on  the  case,  is  a  general  remedy,  to  recover  compensation  for 
damages  which  have  resulted  from  the  fraudulent  conduct  of  another;  and 
any  conduct  is  in  law  deemed  a,  fraud,  and  actionable  within  the  scope  of 
this  remedy,  which,  though  not  unlawful  in  itself,  yet  by  its  natural  and 
ordinary  consequences,  injures  any  right  of  the  plaintiff,  without  fault  in  him, 
and  is  not  done  in  the  exercise  or  lawful  pursuit  of  the  defendant's  rights ; 
for  the  law  always  presumes  that  a  man  has  intended  that  which  is  the 
natural  or  reasonable  result  of  his  conduct,  and  which  might,  and  ought  to, 
have  been  foreseen  by  him.  Through  all  the  phases  this  action  assumes, 
its  gist  still  is  fraud :  and  though  it  lies  to  recover  damage  occasioned  by  a 
material  or  physical  tort,  yet  the  force,  or  tortious  act,  itself,  is  not  the  gist 
of  the  action,  as  it  is  in  trespass  vi  et  armis,  but  the  negligence,  careless- 
ness, or  other  fraudulent  conduct  of  the  defendant,  by  which  the  tort  was 
occasioned. 

That  force  is  the  gist  of  trespass,  and  fraud  upon  the  whole  case  between 
the  parties  at  the  time  of  suit  brought,  the  gist  of  case,  is  shown  by  the 
pleadings :  for,  in  the  former  action,  under  the  general  issue,  the  office  of 
which  in  all  actions,  is  to  traverse  that  which  is  the  gravamen  or  substan- 
tial matter  in  the  declaration,  only  the  force,  and  the  defendant's  proper'tij  can 
be  denied,  but  in  the  latter  action  under  the  same  general  issue,  evidence 
of  excuse,  justification,  or  satisfaction  may  be  given.  Gilchrist  v.  Bale,  8 
Watts,  335,  358. 

There  is,  therefore,  an  essential  and  legal  difference  in  the  ground  of  the 
two  actions  :  but  the  choice  between  them  may  often  be  determined  by  the 
nature  and  extent  of  the  compensation  sought.  If  the  act  o^ force,  itself,  be 
made  the  gist  of  the  action,  that  is  to  say,  if  trespass  be  brought,  of  course,  no 
more  can  be  recovered  than  the  equivalent  of  the  injury  which  the  act  in  itself, 
and  at  once,  was;  or,  in  other  words,  the  damage  involved  in  the  act  at  the  time 
of  its  taking  place,  thougli  perhaps  subsequently  developed  ;  (*'  immediate  or 
obviously  probable  consequence;"  Avery  v.  Ray  et  al.,  1  Mass.  1'2.)  Robin- 
son V.  Stokely,  3  Watts,  270  ;  Spigelmoycr  v.  Walter,  3  Watts  &  Ser- 
geant, 540;  Sampson  v.  Coy,  15  Massachusetts,  493.  See  Laing  v.  Colder, 
8  Barr,479,  481 ;  and  Rurdick  v.  Worrall,  4  Barbour's  S.  Ct.  597,  59S. 
But  if  compensation  is  sought  for  some  damage  entirely  collateral,  the  frau- 
dulent conduct  of  the  defendant  on  the  whole  case  must  be  made  the  ground 


478  smith's   leading   cases. 

of  the  action ;  tliat  is,  the  action  must  be  case.  Thus,  in  the  instance  put 
by  Powell,  J.,  in  11  Mod.  180,  if  there  be  false  imprisonment,  suit  may 
be  brought  upon  the  forcible  injury  to  the  person,  and  that  will  be  trespass, 
and  damages  will  be  recovered  to  the  extent  to  which  the  rights  of  person 
have  been  damnified;  but  if  the  detention  have  caused  a  collateral  loss,  as 
by  forfeiture  of  a  recognizance  to  appear,  there  the  fraudulent  detention  is 
the  ground  of  the  action,  and  it  must  be  case.  Sec  the  general  principle 
discussed  in  Cotteral  v.  Cummins  and  another,  S  Sergeants  llawle,  343. 

Force,  in  reference  to  the  action  of  trespass,  it  is  very  justly  remarked  in 
Jordan  v.  Wyatt,  4  Grattan,  151, 153,  "  is  not  merely  actual  force,  but  also 
force  implied  by  law;  and  as  the  law  always  implies  force  where  the  injury 
is  immediate  to  the  person  or  property  of  another,  it  is  obvious,  that  the 
substantial  distinction  is  between  direct  and  immediate  injuries  on  the  one 
hand,  and  those  mediate  or  consequential  on  the  other."  And  <'  the  terms 
<  immediate'  and  '  consequential'  should,  as  I  conceive,"  said  the  judge  in 
that  case,  ''  be  understood,  not  in  reference  to  the  time  which  the  act  occu- 
pies, or  the  space  through  which  it  passes,  or  the  place  from  which  it 
is  begun,  or  the  intention  with  which  it  is  done,  or  the  instrument  or 
agent  employed,  or  the  lawfulness  or  unlawfulness  of  the  act;  but  in  refer- 
ence to  the  progress  and  termination  of  the  act,  to  its  being  done  on  the  one 
hand,  and  its  having  been  done  on  the  othev.  If  the  injury  is  inflicted  by 
the  act,  at  any  moment  of  its  progress,  from  the  commencement  to  the  ter- 
mination thereof,  then  the  injury  is  direct  or  immediate  ;  but  if  it  arises  after 
the  act  has  been  completed,  though  occasioned  by  the  act,  then  it  is  conse- 
quential or  collateral,  or  more  exactly,  a  collateral  consequence."  It  was 
accordingly  held  in  Jordan  v.  Wyatt,  that  where  the  defendant  innocently 
set  fire  to  some  brushwood  on  his  own  land  for  the  purpose  of  clearing  the 
soil,  and  the  fire  escaped  from  control,  and  consumed  some  wood  of  the  plaiu- 
tifi''s,  trespass  was  an  appropriate  remedy,  concurrently  with  case. 

If  there  be  force,  but  not  ne(/Ugeyice,  that  is,  if  the  force  be  wilful,  tres- 
pass is  the  only  remedy.  If  there  be  force,  and  also  neyUyence,  that  is,  if 
the  forcible  act  proceed  from  negligence,  i\xQ  force  may  be  made  the  grava- 
men of  the  action,  and  then  it  must  be  trespass;  (Guille  v.  Swan,  19  John- 
son, 381 ;)  or  the  negligence  may  be  made  the  gist,  and  then  it  must  be 
case ;  (and  this  is  the  point  decided  in  Williams  v.  Holland  ;)  Blin  v.  Camp- 
bell, 14  Johnson,  432 ;  Percival  v.  Hickey,  18  id.  257  ;  McAllister  v.  Ham- 
mond, 6  Cowen,  342  ;  Dalton  v.  Favour,  jr.,  3  New  Hampshire,  4G5  ;  Saflin 
V.  Wilcox,  18  Vermont,  605  ;  Knott  v.  Digges,  G  Harris  &  Johnson,  230; 
Johnson  v.  Castleman  and  Ormsby,  2  Dana's  Kentucky,  377.  Where, 
therefore,  the  injury  is  immediate,  and  is  attributable  to  the  defendant's 
negligence,  trespass  and  case  are  used  as  concurrent  remedies;  Jordan  v. 
AVyatt,  4  Grattan,  151,  158;  Schuer  v.  Veeder,  7  Blackford,  342.  But 
in  some  of  the  states,  it  has  been  decided,  that  under  such  circumstances, 
trespass  is  alone  the  proper  action.  Taylor  v.  Rainbow,  2  Henning  &  Mun- 
ford,  423;  Gates  and  others  v.  Miles,  3  Connecticut,  04;  Case  and  Davis 
V.  Mark,  2  Hammond's  Ohio,  169  ;  Waldron  v.  Hopper,  Coxe,  339  ;  Barnes 
V.  Hurd,  11  Massachusetts,  57.  See,  also,  Vosburgh  v.  Moak  and  others, 
1  Cushing,  453,  456;  Waterman  v.  Hall  et  al.,  17  Vermont,  128,  130. 
No  doubt,  in  principle,  these  last  decisions  are  right,  for  trespass  is  a  writ 
at  common  law  and  of  course,  and  case  is  extraordinary  and  judicial:  but 


SCOTT     V.     S  H  E  P  U  E  R  D.  479 

the  convenience  of  the  latter  for  recovering  all  the  special  and  remote  dam- 
age recommends  it  to  practice. 

If  a  servant,  without  the  authority  or  assent  of  his  master,  commit  a  tort, 
the  servant's  liability  will  be  case  or  trespass,  according  to  the  circum- 
stances j  but  the  master's  will  always  be  case;  unless  the  particular  act 
which  constitutes,  or  comprises,  or  by  physical  necessity  leads  to,  the  tres- 
pass, is  ordered  to  be  done  by  the  principal ;  Sharrod  v.  llailway  Co.,  4 
Exchequer,  580;  Gordon  v.  Rolt,  id.  3G5  ;  Barnes  v.  Ilurd,  11  Massa- 
chusetts, 57  ;  Germantown  R.  11.  Co.  v.  Wilt,  4  AVharton,  143 ;  Duvan  v. 
Melogue,  7  Blackford,  144.  The  master  is  liable  in  case  for  only  those 
wrongs  of  his  servant,  which  result  from  incapacity  and  negligence  in  the 
course  of  his  employment  or  duty,  and  not  for  his  wilful  trespasses  ;  because 
only  those  injuries  which  are  done  in  the  course  of  the  employment,  and  pro- 
ceed from  incompetency,  which  was  a  fault  existing  at  the  time  of  his  appoint- 
ment, and  likely  to  produce  damage,  are  fairly  caused  by  the  master's  em- 
ploying him;  Foster  and  another,  executors,  v.  The  Essex  Bank,  17  Mas- 
sachusetts, 479  :  and  for  the  distinction  between  negligent  and  wilful  acts, 
compare  M<Caw  v.  Kimbul,  4  M'Cord,  220,  with  Schmidt  and  Webb  v. 
Blood  and  Green,  9  Wendell,  2C8  ;  and  see  Hay  v.  The  Cohoes  Company, 
3  Barbour's  S.  Ct.  43,  4G,  and  Brasher  v.  Kennedy,  10  B.  Monroe,  28,  30. 
But  if  the  master  command  or  advise  the  trespass  of  the  servant,  or  make 
himself  in  any  way  accessory,  he  becomes  a  principal  trespasser ;  as  in  the 
case  of  a  sheriflp,  who  is  liable  as  a  principal,  whenever  the  deputy  acting 
under  l^is  authority  is  a  trespasser.  See  Dolph  v.  Ferris,  7  Watts  &  Ser- 
geant, 367. 

Actions  per  quod  servitium  amisit,  for  seduction,  abduction,  or  corporal 
injury,  of  a  child,  are  all  founded  on  the  relation  of  master  and  servant,  and 
not  that  of  parent  and  child;  but  when  the  action  is  grounded  by  proof  of 
some  interest  in  the  service  of  the  child,  the  damages  may  be  swelled  by 
proof  of  incidental  expenses,  and  injury  to  feeling,  though  these  are  not  in 
themselves  substantive  causes  of  action. — The  father  of  a  child  under 
twenty-one,  may  maintain  the  action  though  the  child  does  not  live  with 
him,  because  he  has  a  legal  interest  in  the  service  of  the  child.  Martin  v. 
Payne,  9  Johnson,  387;  Hewitt  v.  Prime,  21  Wendell,  79;  Bartley  v. 
Eichtmyer,  2  Barbour's  S.  Ct.  183;  Boyd  v.  Byrd,  8  Blackford,  113; 
Hornketh  v.  Barr,  8  Sergeant  &  Rawle,  3G;  Helifenstein  v.  Thomas,  5 
Rawle,  209,  212 ;  Anderson  v.  Ryan,  3  Gilman,  583  ;  and  a  guardian  has 
the  same  interest  and  the  same  right  of  action.  Fernsler  v.  Moyer,  3  Watts 
&  Sergeant,  41G.  In  other  cases,  some  evidence  of  a  state  of  servitude 
existing  or  continuing  must  be  given ;  but,  in  case  of  the  father  after  the 
child  is  twenty-one;  of  the  putative  father;  one  in  loco  parentis;  or  the 
mother;  slight  acts  of  service,  or  probably  merely  living  with  the  plaintiff, 
would  be  competent  evidence  of  the  relation :  but  in  case  of  a  mere  stran- 
ger, probably  full  proof  of  a  contract  of  service  is  necessary.  Nickleson  v. 
Stryker,  10  Johnson,  115  ;  Miller  v.  Thompson,  1  Wendell,  447  ;  Ingersoll 
V.  Jones,  5  Barbour's  S.  Ct.  6G2  ;  Villepigue  v.  Shuler,  3  Strobhart,  4G2  ; 
South  V.  Denniston,  2  Watts,  474;  Logan  v.  Murray,  G  Sergeant  &  Rawle, 
175 ;  Moritz  v.  Garnhart,  7  Watts,  302 ;  Wilson  v.  Sproul,  3  Penrose  & 
Watts,  49  ;  dicta  in  Weckerly  v.  Lutheran  Congregation,  3  Rawle,  172,  17G. 
See  Roberts  v.  Connelly,  14  Alabama,  23G.     This  action  may  be  either 


480  smith's  leading   cases. 

trespass ;  Hoover  v.  Ileim,  7  Watts,  G2,  (Joddard  v.  Wagner,  1  M'Cord,  100; 
or  case;  Keam  v.  Kank,  3  Sergeant  &  llawle,  215;  Parker  v.  Elliott,  Gil- 
mer, 33  ;  S.  C.  Munford,  587 ;  Haney  v.  Townsend,  1  M'Cord,  207 ;  see 
the  note  p.  188  to  M'Clure's  Executors  v.  Miller,  4  Hawks,  (N.  Car.)  133. 
lu  lleam  v.  Rank,  and  Wilt  v.  Vickers,  8  Watts,  227,  it  is  indicated  that  if 
the  minor  child  be  living  in  the  father's  house  at  the  time,  trespass  is  the 
more  proper;  but  if  out  of  it,  case  :  and  that  trespass  quare  clausum  fregit 
will  lie  in  the  former  case,  is  held  in  Clough  v.  Tenney,  5  Greenleaf,  446 ; 
and  in  such  action,  it  is  said  in  Schuylkill  Nav.  Co.  v.  Parr,  4  Watts  &  Ser- 
geant, 363,  377,  that  the  plaintifiF  may  give  in  evidence  the  debauching  of 
his  daughter,  under  alia  enormia,  but  not  loss  of  service  or  any  other  matter 
that  would  of  itself  bear  an  action,  for  such  matter,  must  be  stated  specially. 
Sec  Moran  v.  Dawes,  4  Cowcu,  412,  where  the  distinctions  are  considered; 
and  case  held  to  be  always  safe.  It  has  also  been  held  that  for  forcible  ab- 
duction of  a  servant,  trespass  is  more  proper;  for  enticing  a  servant  away, 
case  alone.  Lcgaux  v.  Feesor,  1  Yeates,  586 ;  Jones  &  Gully  v.  Tevis,  4 
Littell,  25. 

For  injury  to  a  servant,  the  old  forms  are  trespass,  upon  the  principle, 
that  the  master  has  an  interest  in  his  servant,  and  possession  of  him,  so  that 
disabling  the  servant  is  a  direct  forcible  injury  to  the  master's  interest  and 
possession  :  and  the  per  quod  servitium  was  necessary  to  be  added,  not  as 
the  allegation  of  a  collateral  and  special  injury,  but  to  show  that  such  was 
the  relation  of  the  parties,  and  so  great  the  injury,  that  the  battery  was  a 
direct  injury  to  the  master's  interest  and  possession  :  but  in  modei'n  times 
the  per  quod  has  generally  been  considered  as  the  allegation  of  a  special  and 
consequential  damage;  in  which  view  case  is  more  appropriate. 

H.  B.  W. 


[*220]  ===COOPER  V.   CHITTY. 


IIIL.  27  GEO.  II.  K.  B. 
[RErORTED,  1  BURR.  20.] 

The  title  of  a  bankrupt's  assignees  relates  back  to  the  Act  of  Bankruptcy;  and 
the  shorifFwho  has  seized  the  goods  of  a  bankrupt  after  the  act  of  bankruptcy, 
but  before  commission,  and  sold  them  after  the  commission  and  assig-nment,  is 
liable  to  the  assignees  in  trover. 

This  cause  was  twice  argued :  it  came  first  before  the  court  on  Monday, 
the  9th  of  June,  1755;  and  again  upon  Tuesday,  the  IGth  instant.     It  was 


COOPER    V.     CniTTY. 


481 


an  action  of  trover,  brought  by  the  assignees  of  William  Johns,  a  bankrupt, 
against  the  sheriffs  of  London,  who  had  taken  and  sold  the  goods  of  Johns, 
iu  execution  under  a  fieri  facias,  which  had  issued  against  Johns,  at  the  suit 
of  one  William  Godfrey. 

On  the  trial  a  special  case  was  settled  : 

Which  case  states,  that  Johns  was  regularly  declared  a  bankrupt  on  the 
8th  of  December,  1753.  And  as  to  the  rest,  the  following  times  and  facts 
were  stated;  viz.,  that  on  the  5th of  December,  1753,  one  Godfrey  obtained 
judgment  in  the  Common  Pleas  against  the  said  Johns;  and  on  the  same 
day  (5th  December,  1753)  execution  upon  the  said  judgment  was  taken  out 
against  him  by  Godfrey,  and  the  goods  seized  by  the  sheriffs,  under  it;  that 
Johns  committed  the  act  of  bankruptcy  on  the  4th  of  December,  1753,  and 
on  the  8th  of  the  same  December,  a  commission  of  bankruptcy  was  taken 
out  against  him ;  and,  on  the  very  same  day,  the  commissioners  of  bank- 
ruptcy executed  an  assignment;  and  afterwards,  viz.,  on  the  28th  of  De- 
cember, a  bill  of  sale  of  the  goods  was  made  by  the  sheriffs.  The  plaintiffs 
are  the  assignees  under  the  commission:  the  defendants  *are  the  p^,^^^-. 
sheriffs  of  London,  who  seized  the  goods  under  the  execution.  ^  ^     -• 

The  point  was,  whether  the  assignees  under  the  commission  of  bankruptcy 
can  maintain  an  action  of  trover  against  the  sheriffs,  who  executed  this  pro- 
cess under  a  regular  judgment  and  execution,  for  seizing  the  goods,  under  a 
fieri  facias,  issued  and  executed  after  the  act  of  bankruptcy  was  committed; 
and  selling  them  after  the  assignment  was  executed. 

The  counsel  who  argued  for  the  plaintiffs  made  two  questions,  viz. : 

1st.  Whose  property  the  goods  were,  when  seized  by  the  sheriffs,  by 
virtue  of  this  fieri  facias  : 

2ndly.  Whose  property  they  were,  when  sold  by  the  sheriffs. 

Ist.  Question.  After  the  act  of  bankruptcy  they  ceased  to  be  the  property 
of  the  bankrupt  himself,  they  said;  wheresover  else  the  property  might  be, 
between  the  act  of  bankruptcy  and  the  assignment. 

This  relation  to  the  act  of  bankruptcy  is  like  that  of  administrations  to 
the  time  of  the  death;  and  they  cited  Kiggil  v.  Player,  1  Salk.  Ill,  as  S. 
P.  with  the  present  case,  exactly. 

The  utmost  that  the  bankrupt  himself  could  be  pretended  to  have  was  a 
special  property,  defeasible  by  the  assignment.  It  is  like  the  case  of  a  dis- 
tress for  rent;  where  the  seizor  may  sell  the  distress,  after  five  days;  but  if 
the  money  be  paid  within  the  five  days,  he  cannot  sell :  so  that,  in  the 
interim,  the  right  is  defeasible. 

Here,  the  plaintiffs  have  declared  as  assignees  under  the  commission  of 
bankruptcy  :  therefore,  their  interest  vests  as  from  the  time  of  the  act  of 
bankruptcy. 

If  the  bankrupt  himself  had  delivered  the  goods  to  a  stranger,  it  had  been 
the  same  thing  :  the  stranger  would  be  answerable  to  the  assignees. 

Sheriffs  execute  process  at  their  peril :  they  are  answerable  civUiter  for 
what  they  do  upon  it.     11  H.  4,  90,  14  H.  4,  25. 

A  man  may,  without  his  own  fault,  be  possessed  of  a  horse  which  has 
been  stolen  :  but  nevertheless  he  is  answerable,  civiliter,  to  the  true  owner 
for  it. 

The    sheriff    had   no    authority  to    take    any    goods    in    execution    but 

YoL.  I.— 31 


482  smith's   leading    cases. 

j-^^j^--.  *the  goods  of  the  defendant :  if  be  docs  take  any  other  goods,  he  is 
L         -la  trespasser. 

In  writs  of  execution,  it  is  at  their  peril  if  they  take  another  man's 
goods.  In  Carthew,  381,  Hallet  v.  Byrt,  it  is  so  laid  down  by  Chief  Justice 
Holt,  expressly. 

Now  these  were  goods  of  the  assignees.  And  they  may  maintain  an 
action,  either  against  the  plaintiff  in  the  cause,  or  the  sheriff,  or  the  vendee 
of  the  goods  :  and  the  sheriff  is  the  properest  person  against  whom  to  bring 
the  action. 

The  gist  of  an  action  of  trover  is  the  conversion :  the  finding  is  not  the 
material  part. 

And  they  cited  several  nisi  prius  cases,  of  actions  brought  by  assignees  of 
bankrupts;  viz. : 

M.  11  G.  1,  trover  by  Vanderhagen  et  al.,  assignees  of  Daniel,  a  bankrupt 
V.  Rewise,  a  serjeant-at-mace  of  the  city  of  London;  S.  P.  with  the  present. 
Lord  Chief  Justice  held  the  action  maintainable. 

The  S.  P.  was  also  before  Chief  Justice  Lee,  in  a  case  of  Bloxholm, 
assignee  of  Mills,  a  bankrupt  v.  Oldham  et  al.,  at  the  sittings  after  Trinity, 
1750,  at  Guildhall :  in  trover  against  a  sheriff,  and  the  former  plaintiff,  and 
the  vendee  (all  of  them  together.)  It  was  objected  "  that  the  sheriff  ought 
to  be  acquitted  :"  but  overruled;  and  verdict  against  all  three. 

The  seizure  there  was  before  the  commission,  but  after  the  act  of  bank- 
ruptcy. 

The  second  question  is,  "  Whose  the  goods  were  at  the  time  of  the  sale." 
The  writ  only  commands  the  sheriff  "  to  sell  the  defendant's  goods  :"  and 
if  he  sells  the  goods  of  another  person  it  is  a  conversion. 

It  is  beyond  doubt  that  the  assignment  has  relation  to  the  act  of  bank- 
ruptcy :  and  the  assignees  stand  in  the  bankrupt's  place  from  that  time.  1 
Ventr.  193,  Monk  v.  Morris  and  Clayton,  proves  this,  and  2  Co.  25. 

Here  then  the  assignees  had  all  the  property  that  the  bankrupt  had,  at 
the  time  of  his  act  of  bankruptcy.  Consequently  the  absolute  dominion 
was  in  them ;  and  the  sheriff  could  not,  after  such  assignment,  sell  them  as 
the  defendant's.  Indeed,  sheriffs  seldom  do,  in  fact,  seil  the  goods  without 
indemnity.  But  the  sheriff  has  here  committed  an  error,  in  selling  them 
at  all :  for  they  were  not  the  defendant's.  He  might,  it  is  true,  have  sum- 
r^ooQi  iiiooed  a  *jury  to  inquire  "  whose  goods  they  were."  But  still, 
L  "  -'  even  their  verdict  cannot  affect  the  right  of  the  true  owner  of  the 
goods. 

The  point  about  relation  backwards  does  not  at  all  effect  the  question  as 
to  the  sale.  For  the  assignment  was  prior  to  the  sale,  though  not  to  the 
seizure. 

And  they  affirmed  that  the  sheriff  not  only  might,  but  even  ought,  in  this 
case,  to  have  returned  "  nulla  bona  ;"  that  would  have  been  the  proper  and 
the  true  return.  And  if  it  had  been  disputed,  he  then  might  have  brought 
the  money  into  court.  There  is  a  case,  of  Rex  v.  Brein,  bailiff,  of  the 
Savoy,  1  Keb,  901,  where  the  goods  were  claimed  under  a  bill  of  sale;  the 
sheriff  returned  "  nulla  hona:"  and  the  money  was  ordered  to  be  brought 
into  court  by  the  sheriff;  and  the  return  to  be  made  agreeable  to  the  event 
of  a  trial  of  the  validity  of  the  pretended  bill  of  sale,  after  such  validity 
should  be  tried  in  an  action. 


COOPER    V.    CniTTY.  483 

In  the  present  case,  the  defendants  knew  of  the  assignment  before  they 
sold  the  goods,  whatever  they  might  do  when  they  seized  them.  And  they 
could  not  possibly  be  obliged  to  sell  them  :  it  is  contrary  to  an  express  act 
of  parliament,  which  vests  the  property  in  the  assignees.  So  that  here  the 
sheriff  has  sold  the  goods,  not  of  the  bankrupt,  but  of  the  assignees. 

And  supposing  that  the  plaintiffs  may  bring  an  action  against  the  plaintiff 
in  the  orignal  action,  or  against  the  vendee  of  the  goods;  yet  they  seem, 
both  of  them,  to  have  better  excuses  than  the  sheriff  has;  and  arc  more 
innocent.  Therefore,  why  should  the  assignees  be  turned  round  to  them, 
when  they  can  undoubtedly  maintain  either  trespass  or  trover  against  the 
sheriffs,  who  have  sold  the  goods,  which  is  a  conversion,  and  will  support  an 
action  of  trover.  That  the  plaintiffs  have  this  election,  to  bring  either  tres- 
pass or  trover,  appears  from  Cro.  Eliz.  824,  Bishop  v.  Lady  Montague,  and 
Cro.  Jac.  50,  S.  C 

Therefore  they  concluded  that  the  action  was  well  brought. 

The  counsel  Avho  argued  for  the  defendants,  the  sheriffs,  agreed  that  the 
matter  would  turn  upon  the  solution  of  the  two  questions  made  by  the  other 
side. 

As  to  the  first  question,  they  said  it  would  be  very  hard  if  this  action 
should  lie  against  the  sheriffs,  and  they  be  put  *to  contravert  the  p^,-,.-,  i-, 
act  of  bankruptcy,  which  is  a  matter  not  at  all  within  their  know-  L  ""'  J 
ledge. 

They  argued  that  the  sheriffs  shall  not  be  considered  as  wrong-doers ; 
and,  to  prove  it,  cited  1  Lev.  95,  Turner  v.  Felgate ;  Raym.  73,  S.  C,  2 
Siderf.  126,  S.  C,  and  1  Keble,  822,  S.  C. ;  1  Lev.  173,  Bailey  v.  Sun- 
ning; 1  Siderf.  271,  S.  C,  and  2  Keble,  32,  33,  S.  C. 

The  only  acts  of  the  sheriffs  that  can  be  considered  as  a  conversion  arc 
the  acts  of  seizure  and  sale. 

Now  they  were  compellable  by  the  writ  of  fieri  facias  to  seize  the  goods 
and  levy  the  debt. 

For  till  the  commission  and  assignment  the  property  was  in  the  bankrupt : 
and  it  did  not  appear  that  a  commission  ever  would  be  taken  out. 

1  Salk.  108.  Cary  v.  Crisp,  is  express  in  point,  "  that  the  property  is  in 
the  bankrupt  till  assignment."  It  was  there  resolved  that  the  property  of 
the  goods  is  not  transferred  out  of  the  bankrupt  till  assignment.  2  Str.  981, 
Brassy  et  al.  v.  Dawson  et  al.  accord. 

1  Lev.  173,  Baily  v.  Bunning.  Judgment  was  for  the  officer ;  he  being 
obliged  to  execute  the  writ,  and  could  not  know  of  the  act  of  bankruptcy, 
or  that  any  commission  would  ever  be  sued  :  and  the  sheriff  was  holden  not 
to  be  liable,  although  he  had  notice  of  the  assignment. 

1  Siderf.  272,  S.  G.     The  taking  was  holden  lawful. 

Comberb.  123,  Lechmere  v.  Thorowgood.  The  officer  shall  not  be  made 
a  trespasser,  by  relation.     3  Mod.  236,  S.  C,  1  Shower,  12,  S.  C. 

The  commission  of  bankruptcy  makes  no  alteration  till  assignment:  and 
after  assignment  there  shall  be  a  relation,  so  fa-r  as  to  avoid  all  mesne  acts 
of  the  bankrupt,  and  even  to  overreach  this  judgment-creditor.  Thus  far 
they  admitted. 

But  they  insisted  that  the  action  ought  not  to  have  been  brought  against 
the  sheriff. 

The  sheriff  is  to  seize,  sell,  and  return  his  writ.     In  proof  of  this  they 


484  smith's    leading   cases. 

cited  2  Ld.  E:.yra.  1072,  1074.  Clerk  v.  Withers,  1  Salk.  322,  323,  S.  C 
(3d  point),  G  Mod.  293,  299,  S.  C,  1  Sidcrf.  20.  Harrison  v.  Bowdcn, 
Cro.  Eliz.  235.  Mountney  v.  Andrews,  1  Ro.  Abr.  Execution,  893.  Letter 
B.  pi.  2.  Dyer,  98,  b.,  and  99,  a.,  s.  57,  and  the  two  cases  there  cited 
P^noi^i  '°  *'^^  margin  :  and  Cro.  Eliz.  597.  *Cliartcr  v.  Peetor.  From 
I-  J  all  which  cases,  it  appears  that  the  sheriff  is  not  liable  to  be  mo- 
lested. 

1  Salk.  321,  Kingsdale  v.  Mann,  proves  that  the  seizure  is  the  essential 
part  of  the  execution:  and  an  execution  is  an  entire  thing;  and  cannot  be 
stopped,  after  it  is  once  begun.     2  Show.  79,  Coekram  v.  Welbye. 

And  after  the  sheriff  had  seized  these  goods,  the  original  plaintiff  (Wil- 
liam Godfrey)  could  oblige  the  sheriff  to  return  his  writ ;  and  yet  upon  the 
principles  advanced,  the  sheriff  must  be  put  under  the  greatest  hardships. 
And  he  had  no  method  to  make  the  assignees  of  the  bankruptcy  to  give  him 
any  assistance  towards  proving  the  act  of  bankruptcy. 

Indeed  the  execution  is  good,  though  the  writ  bo  never  returned.  5  Hep. 
90,  a.,  Hoe's  case  (1st  resolution). 

The  only  return  the  sheriff  could  make,  must  be,  <' that  he  had  levied 
the  money"  (which  could  only  be  by  sale.)  Therefore  he  was  obliged  to 
sell.      Consequently  the  law  will  not  make  him  a  wrong-door  by  selling. 

The  following  cases,  they  said,  were  in  point  for  them,  viz.,  1  Lev.  173, 
Bailey  v.  Bunning ;  2  Keble,  32,  33,  S.  C. ;  1  Siderf.  271,  S.  C.  3  Lev. 
191,  Philips  V.  Thompson;  1  Show.  12,  Lechmere  et  al.  v.  Thorowgood  et 
al;  Comb.  123,  S.  C;  3  Mod.  236,  S.  C.  and  Cole  v.  Davies  et  al.,  1  Ld. 
Raym.  724,  per  Holt,  in  point,  as  against  the  sheriff  most  expressly. 

And  the  present  plaintiff  may  have  an  adequate  and  complete  remedy 
against  the  plaintiff  in  the  original  action. — As  to  the  cases  cited,  the 
gentlemen  who  have  argued  on  the  other  side,  put  it  upon  the  question, 
"  who  bad  the  property  of  the  goods  ?" 

Now  the  property  was  in  the  bankrupt  at  the  time  of  the  execution ;  it 
was  not  in  abeyance;  as  it  is  in  the  case  of  an  administration.  (Which  is 
an  answer  to  the  case  of  Kiggil  v.  Player.) 

The  sheriff  is  not  in  the  case  of  a  stranger;  for  he  was  obliged  to  execute 
and  return  the  writ. 

Indeed  the  sheriff  is  to  execute  the  writ  at  his  peril :  and  Carthew,  381, 
is  so;  the  reason  is,  because  the  sheriff  may  impanel  a  jury,  to  inquire 
<'  whose  the  goods  are."  But  here  there  were  no  means  for  the  sheriff  to 
r*oori  io'l^^'^ify  himself :  the  goods  were  undoubtedly  then  the  goods  of 
L  """  -^  *William  Johns,  even  though  he  had  then  committed  an  act  of  bank- 
ruptcy. 

The  assignees  have  not  a  right  to  recover  the  specific  goods,  but  only 
damages. 

Trespass  will  lie  against  the  plaintiff  in  the  original  action,  even  before  he 
receives  the  money  :  though  trover  indeed  would  not  till  after. 

It  is  not  certain  that  an  action  will  lie  against  the  vendee  of  the  sheriff. 

As  to  Vanderhagen's  case,  it  is  not  sufficiently  clear  how  it  was,  or  wliy  it 
was  determined. 

But  as  to  the  case  of  Bloxham  v.  Oldham,  Mr.  Henley  did  not  -j-insist  on 
the  objection.  "  that  the  action  would  not  lie  against  the  sheriff;"  because  it 
would  not  help  his  client;  for  in  that  case  the  sheriff  and  the  plaintiff  in  the 


COOPER    V.     CniTTY.  485 

original  action  wore  both  of  them  defendants.  And  the  case  of  1  Leo.  173, 
was  not  indeed  by  Lord  C.  J.  Lee,  thought  apposite  lo  that  case;  but  it  was 
not  over-ruled  by  hira.  And  the  goods  were  certainly  the  goods  of  the 
bankrupt  till  assignment. 

fN.  B.  Mr.  Hume,  who  was  counsel  for  the  defendant  in  that  case  of 
Bloxham  v.  Oldham,  agreed,  that  the  objection  against  the  sheriff's 
being  a  defendant,  was  not  insisted  upon  ;  because  the  plaintiff  iu  the 
original  action  (who  was  also  a  co-defendant  with  the  sheriff  there)  had 
indemnified  the  sheriff:  so  that  it  was  really  a  point  quite  immaterial 
to  the  plaintiff  (who  was  at  all  events  liable  to  tlrc  action.) 

They  added,  that  this  was  a  point  of  great  consequence  to  all  sheriffs  and 
officers :  on  the  other  hand,  creditors  cannot  be  injured,  though  sheriffs 
should  be  excusable,  and  the  original  plaintiff  only  should  be  liable  to  the 
action. 

As  to  what  has  been  said  of  security  taken  by  the  sheriff — the  court  can 
take  no  notice  of  a  sheriff's  taking  security;  nor  can  they  suppose  him  con- 
usant of  a  private  unknown  act  of  bankruptcy :  and  it  would  be  very  hard 
if  an  innocent  officer  should  be  hurt  by  retrospection  and  relation. 

They  agreed  that  this  execution  may  be  avoided  as  against  the  original 
plaintiff:  2  Strange,  981,  Brassy  et  al.  v.  Dawson  et  al.,  is  a  proof  that  it 
may.  But  they  denied  *it,  as  to  rendering  the  officer  liable  to  an  f^cfcf'j-, 
action  ;   for  he  is  excusable,  as  appears  from  the  cases  before  cited.     L         J 

As  to  the  second  question. — The  foundation  of  this  action  of  trover,  is 
property  in  the  plaintiff  at  the  time  of  the  seizure,  and  a  tortious  and  illegal 
act  of  conversion  ;  for  without  both  these  circumstances,  this  action  will  not 
lie. 

Now  the  property  is  in  the  bankrupt  till  assignment :  and  the  subsequent 
sale  cannot  make  the  sheriff  a  wrong-doer  by  a  fictitious  relation.  Baym. 
161,  Bilton  V.  Johnson  et  al.  "  The  relation  of  a  teste  shall  not  justify  a 
tort." 

It  is  said  that  "  this  relation  is  given  by  act  of  parliament."  But  there 
are  no  words  in  the  act  of  parliament  that  can  make  the  sheriff  a  wrong-doer. 

If  the  seizure  was  lawful,  the  sale  was  so  too.  2  Ld.  Raym.  1074,  1076, 
Clerk  v.  Withers.  Cro.  Jac.  515,  Sly  v.  Finch.  Cro.  Eliz.  440,  Boucher 
V.  Wiseman,  March  13,  Parkinson  v.  Colliford  et  al.,  executors  of  a  sheriff; 
Cro.  Car.  539.  S.  C.  1  Jones,  430,  S.  C.  Hob.  206,  Speake  v.  Richards. 
Cro.  Eliz.  231,  Mountenay  v.  Andrews.  The  law  considers  the  whole  exe- 
cution as  one  entire  act :  the  intermediate  days  are  only  allowed  for  the  sake 
of  the  sheriff.  Consequently  he  may  execute  the  whole  at  once :  he  may 
seize  and  sell  directly.  The  execution  is  an  entire  thing  and  cannot  be 
stopped,  Cro.  Eliz.  597,  Charter  v.  Peeter;  6  Mod.  293,  Clerk  v.  Withers. 
Therefore  the  officer  shall  be  protected. 

Sunpose  an  action  should  be  brought  against  the  sheriff  for  the  money. 
ILj  might  avail  himself  perhaps  by  special  pleading,  provided  he  was  able  to 
make  out  the  facts  he  should  specially  plead  :  but  how  could  he  be  able  to 
prove  the  act  of  bankruptcy,  trading,  or  assignment?  to  all  which  he  is  an 
entire  stranger.  Therefore  it  would  be  hard  to  suffer  such  an  action  to  be 
maintained  against  him.  But  all  these  matters  are  in  the  privity  of  the  ori- 
ginal plaintiff;  against  whom,  therefore,  the  action  ought  to  be  brought. 

It  is  said,   "  the  sheriff  acts  at  his  peril." 


486  smith's    leading   cases. 

But  it  is  admitted  that  the  method  of  impannelling  a  jury  would  be  no 
protection  to  him. 

The  counsel  for  the  plaintiffs  replied,  that  it  is  stated  "  that  the  assign- 
ment by  the  commissioners  of  bankruptcy  was  previous  to  the  bill  of  sale  by 
the  sheriffs." 

r*9oqi  "^^^  sheriff's  being  always  a  responsible  person,  and  *therefore 
L  "^  -'  most  likely  to  be  made  defendant,  is  the  very  reason  why  he  ought 
to  be  liable  to  the  party  who  has  received  the  injury. 

The  finding,  or  even  the  taking  possession  of  goods  found,  is  no  wrong : 
but  it  is  the  converswn  that  makes  the  person  a  tort-feasor. 

They  admitted  that  the  sheriff  is  not  answerable  for  the  irregularity  of  a 
judgment  (for  he  is  bound  to  execute  the  command  of  the  writ).  But  if  he 
take  the  goods  of  another  person,  instead  of  the  goods  of  the  defendant,  he 
i.s  answerable  for  that. 

It  has  been  said,  indeed,  that  "  they  were  at  that  time  the  goods  of  the 
bankrupt  himself." 

But  be  the  taking  lawful,  or  not  lawful,  yet  here  is  an  actual  conversion, 
an  actual  disposition  of  the  goods;  which  makes  him  a  trespasser  ab  initio. 

It  has  likewise  been  said  that  "  the  court  will  protect  the  sheriff."  But 
the  relation  goes  back  quite  up  to  the  act  of  bankruptcy. 

They  denied  that  the  execution  is  so  entire  that  the  sheriff  cannot  stop  in 
it,  after  seizure  and  before  sale  of  the  goods.  Suppose  the  sheriff  had  con- 
fessedly seized  another  person's  goods,  should  he  be  obliged  to  sell  them  ? 
Dalton's  OflBce  of  Sheriff  says,  "  that  the  shei'iff  may  impanel  a  jury ;  and 
after  that  shall  not  be  answerable."  Now  here  he  might  either  have  impan- 
elled a  jury,  or  have  kept  the  money  in  his  hands,  or  brought  it  into  court, 
till  the  property  of  the  goods  had  been  determined. 

They  admitted  the  general  principle  of  the  cases  cited  on  the  head  of  exe- 
cutions ;  but  denied  the  application  of  them  to  the  present  case.  They  also 
denied  the  principle,  ''  that  a  sheriff  shall  never  be  a  tort-feasor  by  relation  ;" 
for  he  shall  in  some  cases  be  so,  as  where  he  takes  the  goods  with  a  bad 
original  intention. 

As  to  Baily  v.  Bunning,  they  endeavoured  to  distinguish  it.  In  order  to 
which,  they  remarked  that  there  is  no  finding  of  an  actual  conversion,  or  of 
what  could  be  called  so,  by  the  court :  it  is  only  a  demand  and  refusal ; 
which  is  only  evidence  to  a  jury."]"  And  the  opinion  of  the  court  there  went 
upon  the  taking,  which  they  held  to  be  legal ;  whereas  here  is  an  actual  con- 
version stated.  An  action  would  lie,  one  would  think,  against  the  vendee  of 
r*99Q1  ^^^  sheriff  *in  point  of  reason,  and  the  practice  does  strongly  support 
L  it ;  for  nine  in  ten  of  those  actions  are  brought  against  the  vendees 

of  the  sheriff. 

In  the  case  of  Bloxham  v.  Oldham,  there  was  a  very  material  difference, 
"  whether  the  sheriff  should  have  a  verdict  for  him,  or  a  verdict  against 
him:"  for  in  the  one  case,  he  would  receive  costs;  in  the  other,  he  must 
pay  them. 

The  plaintiffs  had  no  right  to  call  upon  the  sheriffs,  till  the  return  of  the 
writ :  and  they  might  then  have  returned  "  nulla  bona."  Therefore  this  is 
not  such  a  hard  case  upon  the  sheriffs,  as  is  suggested.     And  this  is  not  the 

t  See  notes  to  VVilbraliam  v.  Snow,  2  Wms.  Saund.  47  e. 


COOPER     V.     CHITTY.  487 

only  case  where  the  sheriflf  is  to  act  at  his  peril ;  for  in  taking  of  bail,   &c., 
he  must  do  so,  as  well  as  here. 

If  the  sheriff  had  returned  "  nulla  bona,"  the  onus  probaudi  would  have 
lain  upon  the  original  plaintiff. 

In  the  case  of  Turner  v.  Felgatc,  the  sheriff  was  certainly  excusable  by 
virtue  of  his  writ. 

In  the  case  of  Cole  v.  Davies  et  al.,  in  1  Ld.  Raym.  724,  the  goods  were 
sold  before  the  commission  and  assignment.  For  the  case  is  there  put,  of  a 
commission  and  assignment,  both  of  them  subsequent  to  the  sale  of  the 
goods.  The  words  are,  "  If  he  seizes  and  sells,  and  then  a  commission  is 
granted,  and  the  goods  assigned,  the  assignee  may  maintain  trover  against 
the  vendee :  but  no  action  will  lie  against  the  sheriff,  because  he  obeyed  the 
writ." 

But  our  reasoning  in  the  present  case  is  founded  upon  the  sale's  being  an 
unlawful  act. 

In  the  case  of  Brassey  et  al.  v.  Dawson  et  al.,  there  was  no  assignment 
previous  to  the  seizure.  ^ 

They  did  not  deny  that  the  bankrupt  had,  in  the  present  case,  a  sort  of 
property,  a  defeasible  property,  in  him  at  the  time  of  taking  the  goods.  But 
in  the  case  of  Clerk  v.  Withers,  (reported  in  6  Mod.  290,  and  in  1  Salk. 
323,  and  in  2  Ld.  Eaym.  1072,)  the  defendant  in  the  action  had  the  whole 
indefeasible  property  in  him ;  and  the  sheriff  ought  to  have  gone  on  :  but 
that  case  is  not  applicable  to  the  present  case,  where  the  property  was  only 
defeasible. 

As  to  the  cases  cited  from  Hob.  20G,  and  March,  13,  they  agreed  to 
them. 

The  time  allowed  to  the  sheriff  makes  no  difference,  they  said ;  because 
he  has  done  wrong. 

And  however  entire  a  thing  an  execution,  in  general,  may  be,  yet  here  it 
was  irregularly  executed. 

*The  truth  of  the  return  of  ^^  nulla  honaj'  in  this  case,  depends  r-i^norrx 
upon  the  present  question.  L         ^ 

It  is  very  frequent  for  sheriffs  to  be  entangled  in  difficulties  about  their 
returns.      Here,  he  might  have  taken  a  writ  de  proprietate  ji^'ohandd. 

Bailey  v.  Bunning  turned  upon  the  taking. 

Techmere  et  al.  v.  Thorowgood  only  proves  *'  that  the  goods  were  in  cus- 
todia  le(/is."  And  so  they  were  :  but  to  the  purposes  of  the  law;  which, 
in  the  present  case,  is  for  the  benefit  of  the  creditors  of  the  bankrupt. 

Cur.  adv.  vult. 

And  now  (Tuesday  23rd  Nov.  1756)  Lord  Mansfield  delivered  the  opin- 
ion of  the  court;  and  said  they  were  all  agreed,  as  well  as  his  two  brethren 
then  present  in  court,  as  his  brother  Wilmot,  (who  was  at  present  engaged 
in  another  place,)  in  their  opinion. 

There  are  few  facts  essential  to  this  case ;  and  it  lies  in  a  narrow  com- 
pass. 

He  then  stated  the  case,  (which  see  p.  222,  ante  :)  and  was  very  particu- 
lar in  specifying  the  dates  of  the  several  transactions. 

The  general  question  is,  <'  whether  or  no  the  action  is  maintainable  by 


488  smith's   leading   cases. 

the  assignees,  against  the  defendants,  the  sheriffs,  who  have  taken  and  sold 
the  goods." 

It  is  an  action  of  trover. 

The  bare  defining  the  nature  of  this  kind  of  action,  and  the  grounds  upon 
which  a  plaintiff  is  entitled  to  recover  in  it,  will  go  a  great  way  towards  the 
understanding,  and  consequently  towards  the  solution,  of  the  question  in 
this  particular  case. 

In  form  it  is  a  fiction  :  in  substance,  a  remedy  to  recover  the  value  of 
personal  chattels  wrongfully  converted  by  another  to  his  own  use. 

The  form  supposes  the  defendant  may  have  come  lawfully  by  the  posses- 
sion of  the  goods. 

This  action  lies,  and  has  been  brought  in  many  cases  where,  in  truth,  the 
defendant  has  got  the  possession  lawfully. 

Where  the  defendant  takes  them  wrongfully,  and  by  trespass,  the  plain- 
tiff, if  he  thinks  fit  to  bring  this  action,  waives  the  trespass,  and  admits  the 
possession  to  have  been  lawfully  gotten."]' 

r*9^n       Hence,  if  the  defendant  delivers  the  thing  upon  demand,  *no 
L         J  damages  can  be  recovered  in  this  action,  for  having  taken  it. 

This  is  an  action  of  tort :  and  the  whole  tort  consists  in  the  wrongful 
conversion. 

Two  things  are  necessary  to  be  proved,  to  entitle  the  plaintiff  to  recover 
in  this  kind  of  action  :  1st,  property  in  the  plaintiff;  and  2dly,  a  wrongful 
conversion  by  the  defendant. 

As  to  the  first,  it  is  admitted  in  the  present  case  that  the  property  was  in 
the  plaintiffs,  as  on  and  from  the  4th  of  December,  (which  was  before  the 
seizure,)  by  relation. 

This  relation  the  statutes  concerning  bankrupts  introduced,  to  avoid 
frauds.  They  vest  in  the  assignees  all  the  property  that  the  bankrupt  had 
at  the  time  of  what  I  may  call  the  crime  committed,  (for  the  old  statutes 
consider  him  as  a  criminal :)  they  make  the  sale  by  the  commissioners  good 
against  all  persons  who  claim  by,  from,  or  under  the  bankrupt,  after  the  act 
of  bankruptcy ;  and  against  all  executions  not  served  and  executed  before 
the  act  of  bankruptcy. J 

Dispositions  by  process  of  law  are  put  upon  the  same  foot  with  disposi- 
tions by  the  party :  to  be  valid,  they  must  be  completed  before  the  act  of 
bankruptcy. 

Till  the  making  of  19  Geo.  2,  c.  32,  if  the  bankrupt  had  bona  fide 
bought  goods,  or  negotiated  a  bill  of  exchange,  and  thereupon,  or  otherwise, 
in  the  course  of  trade  paid  money  to  a  fair  creditor,  after  he  himself  had 
committed  a  secret  act  of  bankruptcy  :  such  bona  fide  creditor  was  liable  to 
refund  the  money  to  the  assignees,  after  a  commission  and  assignment;  and 
the  payment,  though  really  and  bona  fide  made  to  the  creditor,  was  avoided 
and  defeated  by  the  secret  act  of  bankruptcy. § 

This  is  remedied  by  that  act,  in  case  no  notice  was  had  by  the  creditor, 

t  See  the  note  to  Scott  v.  Shepherd,  ante  218. 

I  But  .sec  now  6  G.  4,  c.  16,  sec.  81  and  sec.  86 ;  see  also  sec.  108,  and  st.  1  W.  4,  c.  7, 
sec.  7;  Cumming- v.  Wclsford,  6  Bin^h.  502;  Godson  v.  Sanctuary,  4  B.  &  Ad.  255; 
Crosfield  v.  Stanley,  4  B.  &  Ad.  87,  and  the  late  act  of  2  Vict.  cap.  2.'». 

§  See  now  6  G.  4,  c.  16,  sec.  82  ;  Oaven  v.  Edmondson,  6  Bing;h.  738  ;  Carter  v.  Breton, 
6  Bingh.  617 ;  Cannan  v.  Dcncw,  10  Bingh.  292  ;  Hill  v.  Farrell,  9  B.  &  C.  45,  and  St.  2 
Vict.  c.  29. 


COOPER    V.     CHITTY.  489 

(prior  to  liis  receiving  the  debt,)  "  that  his  debtor  was  become  a  bankrupt, 
or  was  in  insolvent  circumstances.", 

Therefore,  as  to  the  first  point,  it  is  most  clear,  that  the  property  was  in 
the  plaintiffs,  as  on  and  from  the  4th  of  December,  when  the  act  of  bank- 
ruptcy was  committed. 

2ndly.  The  only  question  then  is,  "Whether  the  defendants  are  guilty 
of  a  wrongful  conversion  ?" 

That  the  conversion  itself  was  wrongful,  is  manifest. 

The  sheriffs  had  no  authority  to  sell  the  goods  of  the  *plaintiff3;  i-j^oon-i 
but  of  William  Johns  only:  they  ought  to  have  delivered  these  L 
goods  to  the  plaintiffs,  the  assignees.     Upon  the  foundation  of  the  legal 
right,  the  chancellor,  even  in  a  summary  way,  would  have  ordered  them  to 
be  delivered  to  the  assignees. 

It  is  admitted,  on  the  part  of  the  defendants,  that  the  innocent  vendee 
of  the  goods  so  seized  can  have  no  title  under  the  sale,  but  is  liable  to  an 
action;  and  that  Godfrey  the  plaintiff,  would  have  no  title  to  the  money 
arising  from  such  sale,  but  if  he  received  it  would  be  liable  to  an  action  to 
refund. 

If  the  thing  be  clearly  wrong,  the  only  question  that  remains  is,  "  whe- 
ther the  defendants  are  excusable,  though  the  act  of  conversion  be  wrong- 
ful." 

Though  the  statutes  concerning  bankrupts  rescind  all  contracts  and  exe- 
cutions not  completed  before  the  act  of  bankruptcy,  and  vest  the  property 
of  the  bankrupt  in  the  assignees,  by  relation,  in  order  to  an  equal  division 
of  his  estate  among  his  creditors,  yet  they  do  not  make  men  trespassers  or 
Criminal  by  relation,  who  have  innocently  received  goods  from  him,  or  exe- 
cuted legal  process,  not  knowing  of  an  act  of  bankruptcy :  that  was  not 
necessary,  and  would  have  been  unjust. 

The  injury  complained  of  by  this  action,  for  which  damages  are  to  be 
recovered,  is  not  the  seizure,  but  the  wrongful  conversion. 

The  assignment  was  made  upon  the  8th  of  December ;  the  sale,  not  till 
the  28th  of  December;  the  return,  not  till  the  octave  of  St.  Hilary,  which 
is  the  20th  of  January. 

The  sheriff  acts  at  his  peril ;  and  is  answerable  for  any  mistake  :  infinite 
inconveniences  would  arise,  if  it  were  not  so. 

At  the  time  of  the  sale  and  return,  it  was  more  notorious  "  that  these 
goods  belonged  to  the  plaintiffs,  than  it  could  probably  have  been  in  the 
case  of  any  third  person ;  because  commissions  of  bankruptcy,  and  the  pro- 
ceedings under  them,  are  public  in  the  neighbourhood,  and  indeed  all  over 
the  kingdom. 

This  conversion  is  twenty  days  after  the  assignment. 

The  defendants  have  here  made  a  direct  false  return :  they  have  returned 
"that  they  took  the  defendant's  goods,  &c.,"  whereas  they  were,  at  the  time 
of  the  return,  notoriously  *the  goods  of  the  assignees,  when  they  r^.^qq-i 
were  taken.  They  certainly  might,  and  ought  to  have  returned,  L  J 
^^  nulla  bo7ia  ;"  which  was  the  truth  :  for  the  goods  taken  were,  beyond  all 
manner  of  doubt,  the  goods  of  the  assignees,  at  the  time  when  the  sheriffs 
took  them  ;  and  the  bankrupt  could  have  no  goods,  after  the  4th  of  Decem- 
ber, when  he  had  committed  an  act  of  bankruptcy.  They  would  have  been 
justified  by  the  truth  of  the  fact,  if  they  had  made  this  return  :  for  the 


490  smith's   leading   cases. 

bankrupt  neithei-  had  nor  could  have  any  goods  of  his  own,  at  that  time.  It 
is,  arguing  in  a  circle,  to  say,  <'  that  they  could  not  return  nulla  bona, 
because  they  were  obliged  to  sell;  and  they  were  obliged  to  sell,  because 
they  could  not  return  nulla  hona.'^ 

The  seizure  is,  here,  out  of  the  case;  for  the  point  of  this  action  turns 
upon  the  injurious  conversion. 

Therefore,  we  are  all  of  opinion  that  the  plaintiff  is  entitled  to  recover  in 
this  action. 

But  objections  have  been  made,  by  the  gentlemen  who  have  argued  this 
case  on  behalf  of  the  defendants. 

It  has  been  said  "  that  the  execution  is  entire ;  for  the  debt  is  discharged 
by  a  seizure  in  fi.  fa.  That  being  entire,  if  once  lawfully  begun,  it  must  be 
completed;  for  goods  taken  by  a  fi.  fa.  shall  be  sold  by  the  representative 
of  the  sheriff." 

"  That  they  shall  be  sold,  though  the  plaintiff  dies ;  and  the  money  arising 
from  the  sale  shall  not  be  recovered  back  by  the  defendant :"  which  is  the 
case  of  Clerk  v.  Withers,  1  Salk.  323,  2  Lord  Raym.  1072,  S.  C,  and  6 
Mod.  290,  S.  C. 

"  That  a  writ  of  error  is  no  supersedeas." 

''  That  the  sale  by  the  sheriff  shall  not  be  avoided  against  the  vendee,  by 
a  subsequent  writ  of  error  and  reversal;"  which  is  the  third  point  in  Mat- 
thew Manning's  case,  in  8  Co.  92. 

Answer.  All  this  is  true,  and  upon  the  plainest  reason,  as  between  the 
plaintiff  and  defendant,  parties  to  the  judgment,  in  consequence  of  which 
the  execution  issues;  but  no  way  applicable  to  the  case  of  a  third  person. 

None  of  these  cases  authorise  the  sheriff  to  sell  the  goods  of  a  third  per- 
son :  and  it  is  admitted  that  the  vendee  is  not  protected  here ;  because,  at 
the  time  of  the  sale,  the  sheriff  had  no  authority  to  sell. 
r*9^dl  [*He  then  went  minutely  through  the  cases ;  shewing  the  grounds 
L  -■  upon  which  the  determinations  proceeded,  as  against  the  parties  to 
the  judgment,  who  are  bound  by  it  and  every  thing  done  in  consequence  of 
it.] 

But  the  argument,  from  these  principles  to  the  present  case,  is  this  : 
"  Here  the  taking  was  lawful ;  and,  therefore,  the  sheriff  was  bound  to  com- 
plete the  execution,  by  a  sale."  Answer.  The  premises  are  not  true;  and, 
if  they  were,  the  conclusion  would  not  follow. 

The  taking  was  not  lawful;  because  they  were  then  the  goods  of  a  third 
person. 

But  if  the  taking  were  lawful,  the  sheriff  ought  not  to  go  on  to  a  sale, 
after  a  full  discovery  that  the  goods  then  belonged  to  a  third  person. 

To  prove  the  taking  lawful,  and  that,  therefore,  the  sheriffs  shall  not  be 
liable  to  an  action,  were  cited  the  cases  of  Baily  v.  Bunning,  reported  in  1 
Leon.  173,  174 ;  1  Siderf.  272,  and  2  Keble,  32,  33 ;  Lechmere  v.  Thorow- 
good,  in  Comb.  123 ;  1  Shower,  12,  and  3  Mod.  236;  and  Cole  v.  Davies  et 
al.,  1  Lord  Raym.  724. 

The  fallacy  of  the  argument,  from  the  authority  of  these  cases,  turns  upon 
using  the  word  ''  lawful,"  equivocally  in  two  senses. 

To  support  the  act,  it  is  not  lawful ;  but,  to  excuse  the  mistake  of  the 
sheriff,  through  unavoidable  ignorance,  it  is  lawful.  Or,  in  other  words, 
the  relation  introduced  by  the  statutes  binds  the  property  :  but  men,  who 


COOPER    V.    CniTTY.  491 

act  innocently  at  the  time,  are  not  made  criminals  by  relation ;  and,  there- 
fore, they  are  excusable  from  being  punishable  by  action  or  indictment,  as 
trespassers.  What  they  did  was  innocent,  and,  in  that  sense,  lawful  :  but, 
as  a  ground  to  support  a  wrongful  conversion,  by  sale  after  a  commission 
publicly  taken  out,  and  an  actual  assignment  made,  it  was  not  lawful. 

In  the  case  of  Baily  v.  Bunning,  the  goods  were  clearly  bound  by  the 
teste.  It  is  best  reported  in  Levinz.  The  question  referred  by  the  special 
verdict  was  upon  the  taking,  viz.  "whether  the  party  was  guilty  in  the 
taking :"  and  the  court  excused  the  bailiff  for  his  innocent  executing  his 
writ.  The  case  of  Phillips  v.  Thompson,  in  3  Levinz,  192,  expressly  says 
"  that  this  resolution  in  the  case  of  *Baily  v.  Bunning,  was  only  in  r^oor-i 
excuse  of  the  bailiff  for  executing  the  writ."  •- 

Siderfin  does  not  seem  to  know  what  the  court  was  going  upon :  for  the 
court  tied  it  up  to  the  taking;  whereas  he  does  not  seem  to  distinguish 
between  the  trover  and  the  trespass.     Vide  1  Siderf  272. 

The  case  of  Lechmere  v.  Thorowgood  is  best  reported  in  1  Show.  12. 
And  this  report,  which  is  the  only  clear  state  of  it  in  any  of  the  reports, 
puts  it  singly  upon  the  making  the  officers,  who  had  good  authority,  and 
took  the  goods  lawfully,  trespassers  by  relation, 

Comherbach,  in  giving  the  judgment  of  the  court,  which  is  the  only  sen- 
sible part  of  his  whole  report,  (for  it  is  plain  to  me,  that  he  did  not  under- 
stand the  former  argument  on  the  former  day,  which  is  the  first  part  of  his 
report  of  the  case,)  agrees  with  Shower ;  and  says  that  "  the  court  were  of 
opinion  that  a  construction  should  not  be  made,  to  make  the  ofiicer  a  tres- 
passer by  relation  :  for  the  taking  was  lawful  at  the  time."  But  he  must 
be  mistaken  in  the  first  part  of  this  report,  for  Lord  Chief  Justice  Holt  could 
never  say,  "  that  the  property  of  the  goods  is  vested  by  the  delivery  of  the 
fieri  facias ;  and  the  extent  for  the  King  afterwards  comes  too  late."  No 
inception  of  an  execution  can  bar  the  crown  :"|"  this  matter  was  lately  very 
fully  discussed  in  the  Court  of  Exchequer  in  the  case  of  the  King  v. 
Cotton. 

As  to  the  case  of  Cole  v.  Davies  et  al.,  reported  in  1  Lord  Raym.  724, 
"  that  no  action  will  lie  against  the  sherifi",  who,  after  the  bankruptcy,  seizes 
and  sells  the  goods,  under  a  fieri  facias  to  him  directed ;"  which  is  there 
said  to  be  ruled  by  Lord  Chief  Justice  Holt  at  nisi  prius,  in  Hil.  10  W.  3. 
These  notes  were  taken  in  10  W.  3,  when  Lord  Raymond  was  young,  as 
short  hints  for  his  own  use:  hut  they  are  too  incorrect  and  inaccurate,  to  he 
relied  on  as  authorities.  The  note  states  four  general  resolutions  upon  evi- 
dence, in  a  trial  at  nisi  prius;  but  does  not  state  the  case  or  question  to 
which  the  resolutions  were  applied  (though,  by  the  particularity  of  the  fourth 
resolution,  I  conjecture  that  to  have  been  most  immediately  adapted  to  the  case 
then  in  judgment.)  The  first  resolution  is  an  obiter  reference  to  the  determi- 
nation in  Bailey  v.  Bunning;  and  it  might  not  be  at  all  material  to  attend  to 
the  distinction  between  trover  *and  trespass.  Besides,  the  case  r■^c)oa■^ 
there  put  is  of  a  sale  by  the  sheriff,  before  the  commission  ;  and  the  L 
conversion  might  be  as  excusable  as  the  taking,  because  he  obeyed  the  writ : 
whereas  here,  the  goods  were  not  sold  till  after  both  commission  and  assign- 
ment.    It  is  a  loose  note  of  what  was  said  obiter :  it  manifestly  refers  to 

t  Giles  V.  Grovcr,  9  Bing.  598. 


492  smith's   leading    cases. 

the  case  of  Baily  v.  Bunning;  but  is  no  authority  applicable  to  the  present 
case. 

There  are,  in  the  course  of  trade,  numberless  acts  of  bankruptcy  in  fact 
committed,  where  no  commission  is  ever  taken  out.  Therefore,  it  would  be 
very  hard,  to  make  the  sheriff  a  trespasser  for  taking  the  goods  of  a  person, 
who  might  privately  and  secretly  have  committed  an  act  of  bankruptcy,  and, 
perhaps,  many  years  before  too,  and  on  which  no  commission  might  ever 
afterwards  issue,  and  which  the  sheriff  could  not  possibly  know.  But  none 
of  these  reasons  hold,  to  justify  the  making  a  false  return,  and  selling  the 
goods  after  a  commission  and  an  assignment. 

Arguments  have  been  urged  from  inconvenience,  if  the  sheriff  should  be 
made  liable ;  because  he  is  obliged  to  sell. 

But  the  sheriff  may  take  an  indemnity  from  the  plaintiff,  in  case  there  be 
a  doubt  concerning  the  property  of  the  goods.  Possibly,  this  court  might 
interfere,  if  the  sheriff  was  reasonably  doubtful  about  the  property  :  at  least, 
they  would  have  given  him  time  to  make  his  return.  Or  he  might  have  put 
it  on  the  parties  concerned  in  interest,  to  litigate  their  right,  by  filing  a  bill 
in  Chancery  against  them,  to  oblige  them  to  interplead, f  in  order  to  ascer- 
tain to  whom  the  property  belonged.  Or  he  might  oblige  the  assignees  to 
prove  the  act  of  bankruptcy,  and  the  assignment. 

And  notwithstanding  what  has  been  urged  as  to  the  hardships  that  she- 
riffs will  be  under,  there  can  hardly  a  case  exist,  where  there  will  be  any 
hardship  upon  the  sheriff,  where  the  taking  and  sale,  or  even  the  sale  only, 
are  subsequent  to  the  assignment.  But  in  the  present  case,  the  sheriffs  knew 
of  the  bankruptcy,  before  they  sold  the  goods- 
There  are  much  greater  hardships  upon  other  third  persons  concerned  in 
pecuniary  transactions  with  bankrupts  :  which  hardships  they  are  neverthe- 
r*oq7i  ^^^^  ^^^^  subject  to;  because  it  *was  necessary  that  they  should  be 
L  "  -"so,  in  order  to  secure  the  end  and  intention  of  the  acts  relating  to 
bankrupts ;  namely,  the  securing  their  effects  for  the  equal  satisfaction  of 
their  creditors. 

The  commission  and  assignment  are  both  notorious  transactions ;  so  that 
a  sheriff  cannot  well  be  hurt,  by  being  left  liable  to  this  action  :  whereas 
there  would  be  danger,  if  it  were  otherwise,  of  great  collusion  being  prac- 
tised by  sheriffs,  on  these  occasions;  which  might  be  encouraged  by  a  con- 
trary resolution.  The  seizure  here  is  after  the  act  of  bankruptcy  committed, 
and,  therefore,  after  the  property  by  relation  is  vested  in  the  assignees : 
but  that  was  innocent,  and  excusable ;  and  the  sheriff  shall  not  be  liable  by 
relation,  as  a  wrong-doer.  The  gist  of  this  action  is  the  wrongful  convex'- 
sion  by  the  sale ;  and  false  return,  long  after  the  commission  and  assign- 
ment. 

Therefore,  per  Cur.  unanimously,  the  action  is  maintainable,  in  this 
case,  against  the  defendants;  and  there  must  be  judgment  for  the  plain- 
tiffs. 

Judgment  for  the  Plaintiffs. 

+  See  now  llic  Interijleadcr  Acf,  1  &  2  VV.  4,  c.  58,  s.  6.  Isaac  v.  Spilsbury,  2  Dowl. 
211  ;  Ford  v.  Bayntouii,  1  Dowl.  357  ;  Day  v.  Waldock,  1  Dowl,  523. 


COOPER    v.     CHITTY. 


493 


That  the  right  of  the  assignees  to  the 
bankrupt's  property  dates  prima  facie 
from  the  act  of  bankruptcy,  is  so  per- 
fectly well  known  and  elementary  a  po- 
sition, that  it  would  be  a  mere  waste  of 
time  to  enlarge  upon  it.  In  Sims  v. 
Simpson,  1  Bing.  N.  C.  313,  Tindal,  C. 
(-^007  -1  J-,  *stated  it  to  depend  at  pre- 
'■  -'    sent  on  6  G.  4,  cap.  16,  sec.  12, 

which  empowers  the  Lord  Chancellor, 
on  petition  against  any  trader  having 
committed  an  act  of  bankruptcy,  to  ap- 
point commissioners,  who  are  to  take 
such  order  and  direction  with  the  body 
of  the  bankrupt,  as  also  witli  all  his 
lands,  tenements,  and  hereditaments, 
which  he  shall  have  in  his  own  right, 
before  he  became  bankrupt,  and  with 
all  his  money,  fees,  offices,  annuities, 
goods,  chattels,  wares,  merchandize, 
and  debts,  wheresoever  they  may  be 
found  or  known;  and  to  make  sale 
thereof  in  the  manner  thereinafter  men- 
tioned. Upon  tliis  general  enactment  a 
number  of  exceptions  have  been  en- 
grafted, some  arising  out  of  the  express 
words  of  the  statute,  others  out  of  the 
reasonable  and  equitable  construction 
thereof;  (all  of  which  are  enumerated 
and  discussed  in  the  various  treatises  on 
bankruptcy;)  and  finally  by  the  very 
sweeping  enactment  of  2  Vict,  c.  29, 
which  confirms  all  contracts,  dealings, 
and  transactions  entered  into,  and  all 
executions  and  attachments  executed  or 
levied,  bona  fide,  before  the  date  and  is- 
suing of  the  fifit,  without  notice  of  a 
prior  act  of  bankruptcy. 

[The  statute  2  &  3  Vict.  c.  29,  after 
reciting  the  provisions  of  6  Geo.  4,  c.  16, 
and  2  &.  3  Vict.  c.  11,  as  to  bona  fide 
payments  by  and  to,  and  conveyances  by 
a  bankrupt  before  a  fiat,  and  that  "it  is 
expedient  that  further  protection  should 
be  given  to  persons  dealing  with  bank- 
rupts before  the  issuing  of  any  fiat 
against  them,"  enacts,  "that  all  con- 
tracts, dealings,  and  transactions  by  and 
with  any  bankrupt  really  and  bona  fide 
made  and  entered  into  before  the  date 
and  issuing  of  the  fiat  against  him,  and 
all  executions  and  attachments  against 
the  lands  and  tenements  or  goods  and 
chattels  of  such  bankrupt  bona  fide  exe- 
cuted or  levied  before  the  date  and  issu- 
ing of  the  fiat  shall  be  deemed  to  be 
valid  notwithstanding  any  prior  act  of 
bankruptcy  by  such  bankrupt  com- 
mitted :  provided  the  person  or  persons 
so  dealing  with  such  bankrupt,  or  at 
whose  suit,  or  on  whose  account  such 


execution  or  attachment  shall  have  is- 
sued, had  not  at  the  time  of  such  con- 
tract, dealing,  or  transaction,  or  at  the 
time  of  executing,  or  levying  such  exe- 
cution or  attachment,  notice  of  any  prior 
act  of  bankruptcy  by  him  committed: 
provided  also  that  nothing  herein  con- 
tained shall  be  deemed,  or  taken  to  give 
validity  to  any  payment  made  by  any 
bankrupt,  being  a  fraudulent  preference 
of  any  creditor  or  creditors  of  such  bank- 
rupt, or  to  any  execution  founded  on  a 
judgment  on  a  warrant  of  attorney  or 
cognovit  given  by  any  bankrupt  by  way 
of  such  fraudulent  preference.  A  sum- 
mary of  the  cases  relating  to  its  construc- 
tion may  be  useful,  ft  has  been  hold  to  be 
retrospective  in  Ltickin  v.  Simpson,  6  N. 
C.  353,  8  Scott,  676  S.  C.  ;  Edwards  v. 
*Lawley,  6  M.  &  W.  285; 
Nelstrop  V.  Scarisbrick,  id.  68^,  '-  '  ^ 
except  in  cases  where  the  assignees  had 
been  appointed,  and  an  interest  thus  ves- 
ted before  its  enactment,  Moore  v.  Phil- 
lips, 7  M.  &  VV.  356.  It  applies  only  to 
cases  in  which  before  it  passed,  a  prior 
act  of  bankruptcy  would  have  rendered 
the  transaction  invalid,  and  it  simply 
does  away  with  the  efl^ct  of  such  jnior 
act  of  bankruptcy  if  secret.  It  therefore 
does  not  render  valid  an  act  which  in  it- 
self \s  an  act  of  bankruptcy,  such  as  an 
execution  procured  by  the  bankrupt; 
Hall  v.  Wallace,  7  M.  &  \V.  353.  Nor 
has  it  taken  away  the  effect  of  a  fiat  is- 
sued before  the  sale,  in  cases  where  that 
would,  previously  to  its  passinsf,  have 
defeated  an  execution:  so  that,  upon 
executions  other  than  those  founded  on 
warrants  of  attorney  or  cognovits  given 
in  actions  not  commenced  adversely,  the 
statute  operates  to  render  them  valid, 
provided  the  seizure  of  the  goods  have 
taken  place  without  notice  of  an  act  of 
bankruptcy  and  before  the  fiat,  even 
though  the  sale  do  not  take  place  until 
afterwards,  (the  words  "executed  and 
levied,"  signifying  seized  in  execution,) 
Cheston  V.  Gibbs,  12  M.  &  VV.  Ill; 
Bird  V.  Bass,  6  Man.  &  Gr.  143,  6  Scott, 
N.  R.  928,  S.  C.;  whilst,  upon  execu- 
tions founded  on  warrants  of  attorney  or 
cognovits  given  in  actions  not  adverse, 
and  therefore  not  within  the  protection 
of  1  VV.  4,  c.  7,  s.  7,  it  operates  conjoint- 
ly with  the  108th  section  of  6  Geo.  4,  c. 
16,  with  this  effect,  that,  if  the  seizure 
of  goods  under  such  an  execution  is  made 
bona  fide  without  notice  of  an  act  of 
bankruptcy,  and  the  sale  is  effected  be- 
fore the  fiat,  though  after  notice  of  the 


494 


smith's   leading   cases. 


act  of  bankruptcy,  the  execution  stands 
pood,  Whitmore  v.  Green,  18  M.  &  W. 
104.  Hut  if,  in  executions  of  the  latter 
class,  tlicre  be  notice  of  the  act  of  bank- 
ruptcy at  the  time  of  the  seizure,  or  no 
sale  before  the  fiat,  the  execution  is 
avoided  by  tiie  fiat;  Whitmore  v.  Robert- 
son, 8  M.  &  \V.  469;  Rawdon  v.  VVent- 
vvorth,  10  M.  &  VV.  36;  Skey  v.  Carter, 

11  iM.  &,  \V.  571 ;  Lackington  v.  M'Lach- 
jan,  .5  Scott,  N.  R.  874 ;  Cheston  v.  Gibbs, 

12  M.  &  W.  Ill ;  Linnit  v.  Chaffers,  4 
Q,.  B.  762;  and  that  so  completely,  that 
a  subsequent  execution  which  but  for  the 
bankruptcy  would  have  been  deterred  to 
that  founded  on  the  warrant  of  attorney, 
takes  its  place,  and  has  precedence  of  the 
fiat ;  Goldschiiiidt  v.  Hamlet,  6  M.  &  Gr. 
187,  6  Scott,  N.  R.  962,  1  D.  &  L.  501, 
S.  C. ;  Graham  v.  VVitherby,  and  Graham 
V.  Lynes,  7  Q,.  B.  491 ;  an  efl^ect  different, 
as  it  seems,  from  that  produced  by  bank- 
ruptcy upon  a  conveyance  valid  as 
against  an  execution  but  void  as  against 
a  fiat,  Oswald  v.  Thompson,  2  Exch. 
215,  Fawcett  v.  Fearn,  6  Q.  B.  20  (last 
point),  and  post,  237,  c.  d.  e. 

Where  an  execution  appears  to  have 
been  founded  on  a  warrant  of  ^attorney 
r*.T:)7  1  ^^  cognovit,  it  seems  that  the 
■-  "  J  onus  of  alleging  and  proving 
that  the  action  was  adverse,  so  as  to 
bring  the  case  within  1  VV.  4,  c.  7,  s.  7, 
rests  on  the  execution  creditor.  Rawdon 
V.  VVentworth ;  Linnit  v.  Chaffers,  ubi 
supra.  In  addition  to  the  cases  above 
cited,  see  as  to  the  mode  of  pleading  the 
statute  in  actions  between  assignees  and 
execution  creditors,  Tiirquand  v.  Haw- 
trey,  9  M.  &  W.  727;  Unwin  v.  St. 
Quintin,  11  M.  &  VV.  277. 

Tlie  words  bona  fide  in  the  statute,  so 
far  as  executions  are  concerned,  mean 
"  really  intended  lo  he  executed  for  a 
bona  fide  debt,"  per  Parke,  B.,  Edwards 
V.  Cooper,  Kent  Assizes,  26  July,  1847. 
They  refer  to  the  conduct  of  the  execu- 
tion creditor,  not  that  of  the  bankrupt. 
Belcher  v.  Wagnay,  12  M.  &  W.  102. 

Tiie  "notice"  in  the  case  of  an  execu- 
tion may  effectually  be  given  to  the  exe- 
cution creditor,  or  to  one  of  several,  per 
Parke,  B  ,  Edwards  v.  Cooper,  ubi  supra, 
or  to  the  attorney  in  the  cause,  Kothwell 
V.  Timbrell,  1  Dowl.  N.  S.  778;  but  not 
to  the  atterney's  clerk  though  ai  the  of- 
fice of  the  principal,  at  lea^t  not  unless 
he  iiave  full  discretion  as  to  issuing  or 
countermanding  tiie  execution,  Fiko  v. 
Stephens,  12  Q.  B.  466;  nor  to  the 
sheriff  or  his  otficer,  Ramsey  v.  Eaton, 


10  M.  &,  W.  22 ;  (see  Lackington  v.  El- 
liott, 7  M.  &  Gr.  539,  8  Scott,  N.  R. 
27.5,  S.  C,  where  it  was  discussed 
whether  notice  to  a  bailiff  who  distrained 
was  notice  to  the  landlord).  And  in 
Green  v.  Stecre,  1  Q.  B.  710,  it  was 
laid  down  by  the  Court  of  Queen's 
Bench,  (in  apparent  harmony  with  the 
language  of  the  statute)  that  "  the 
knowledge  or  ignorance  of  the  person 
who  actually,  not  constructively,  deals 
with  the  bankrupt  as  to  any  prior  act  of 
bankruptcy  is  the  natural  question  under 
Stat.  2  &.  3  Vict.  c.  29."  Yet  the  judg- 
ment of  the  same  court  in  P'avvcett  v. 
Fearne,  6  Q.  B.  20,  may  not  be  thought 
altogether  to  accord  with  that  proposi- 
tion. In  Fawcett  v.  Fearne  it  appeared 
that  Black  well,  a  trader,  had  committed 
an  act  of  bankruptcy  by  assigning  his 
property  to  Fawcett,  one  of  his  creditors, 
and  another  person,  as  trustees  for  the 
benefit  of  creditors;  goods  included  in 
the  assignment  were  seized  by  the  sheriff 
under  bona  fide  executions,  at  suit  of 
creditors  who  had  no  notice  of  any  act  of 
bankruptcy;  Fawcett  paid  off  the  execu- 
tions, and  took  an  assignment  from  the 
sheriff  of  the  goods  seized  ;  a  fiat  after- 
wards issued  against  Blackwell,  and  the 
assignees  took  possession  of  the  goods ; 
whereupon  Fawcett,  relying  on  his  title 
as  purchaser  from  the  sheriff",  sued  the 
assignees  in  trover  ;  but  the  court  deci- 
ded against  him,  stating  in  the  course  of 
the  judgment,  that,  "though  the  execu- 
tion creditors  themselves,  who  knew 
nothingofthe  act  of  bankruptcy, *nor  that 
the  goods  might  by  relation  be  r:!<0')7;-i 
the   property   of  other  persons    '-  ^ 

than  the  bankrupt,  might  be  protected,  the 
plaintiff",  who  became  the  assignee  of  the 
sheriff,  with  full  knowledge  of  the  bank- 
ruptcy, is  not."  So  far  as  the  decision  of 
that  case  involves,  if  it  at  all  involve,  the 
general  proposition, — that  a  purchaser 
from  the  sheriff"  at  a  sale  operative  at  the 
time,  under  Sibonafide  execution  at  suit 
of  a  creditor  who  had  no  notice  of  any  act 
of  bankruptcy,  may  by  reason  of  notice  to 
himself,  be  in  a  worse  position  than  tlio 
execution  creditor,  who  has  irrevocably 
received  his  money, — it  is  open  lo  this 
observation,  that  the  |)urchaser  is  neither 
"a  person  dealing  with  the  bankrupt," 
nor  "  a  person  at  whose  suit  or  on  whose 
account  the  execution  issued,"  theref  ire 
not  within  the  words  of  the  statute  2  &, 
3  Vict.  c.  29,  s.  1.  And,  seeing  that 
there  was  anotiier  reason  (lo  be  men- 
tioned bye  and  bye),  apart  from  the  ope- 


COOPER    V.     CHITTY. 


495 


ration  of  the  statute,  upon  which  the  de- 
cision in  Favvcettv.  Fearne,  may  be  sus- 
tained, it  is  possible  that  a  reconsidera- 
tion of  the  subject  may  lead  to  a  correc- 
tion of  some  expressions  used  in  deliver- 
ing the  judgment  in  that  case,  and  a 
recurrence  to  the  language  of  the  statute, 
according  to  its  juster  exposition  in  Green 
V.  Steere. 

Suppose  that  the  assignment  to  the 
trustees  in  Fawcett  v.  Fearne  had  been 
(for  any  reason  of  which  Fawcett  was 
not  estopped  from  availing  himself)  void 
as  against  the  execution,  and  so  the  sale 
under  the  execution  had  operated  upon 
the  goods,  the  question  under  discussion 
would  have  been  raised.  If  a  stranger 
to  the  deed  had  in  that  case  purchased 
under  the  execution,  he  would  have  been, 
according  to  the  judgment,  undoubtedly 
entitled  to  the  goods.  Then  is  there 
anything  in  the  statute  to  disqualify  a 
man  from  becoming  a  purchaser  under  a 
valid  execution,  by  reason  of  his  know- 
ing something,  whicli,  if  the  execution 
creditor  had  known  it  at  the  time  of  the 
seizure,  would  have  rendered  the  execu- 
tion invalid  ]  If  so,  hardly  any  one  could 
safely  purchase  at  a  sale  after  the  fiat, 
though  under  a  valid  execution  levied 
before  the  fiat.  Next,  take  the  simple 
case  of  a  sale  ofgoodsunder  a  valid  exe- 
cution, the  creditor  being  ignorant  of  any 
act  of  bankruptcy,  to  a  purchaser  who 
has  never  had  an?/ dealing  with  the  bank- 
rupt, but  who  knows  of  an  act  of  bank- 
ruptcy committed  before  the  seizure: 
there  is  nothing  in  the  statute  to  invalid- 
ate such  purchaser's  title,  and  following 
its  express  language,  it  may  be  concluded 
to  be  Miimaterial  who  has  notice,  if  the 
person  at  whose  suit  or  on  whose  account 
the  execution  issued,  i.  e.  the  execution 
creditor,  (by  himself  or  his  agent)  have 
not. 

The  true  ground  of  the  decision  in 
Fawcett  v.  Fearne  may  have  been,  that 
the  execution   did  not  *operate  at  all 

r*2S"'el  "P°"  ^'^®  goods;  that  the  as- 
'■  .  -'  signment  to  the  trustees  was 
valid  as  against  the  execution,  though 
afterwards  avoided  by  the  fiat;  that  the 
goods  therefore  were  not  the  goods  of  the 
execution  debtor  at  the  time  of  the  sale; 
that  consequently  the  sale  did  not  at  the 
time  it  was  made,  pass  any  property  in 
the  goods,  or  confer  any  new  right  upon 
Fawcett.  Quod  me.um  est  umplius 
meum  esse  non  potest,  et  nemo  dat  quod 
non  habet.  In  this  view  of  the  case  the 
sale  was  not  a  sale  of  goods  which  the 


sheriff  was  authorised  by  the  writ  of  fieri 
facias  to  seize,  and  the  purciiaser, 
whether  with  or  without  notice,  had  no 
title  as  against  the  assignees.  Whether 
the  efTect  of  the  sale  in  that  case  would 
have  been  different  if  made  after  the 
fiat,  or  whether  the  assignees  could  then 
have  insisted  that  there  was  no  seizure 
of  the  execution  debtor^s  goods  before 
fiat,  it  is  unnecessary  to  discuss  at 
length,  but  it  may  be  suggested  that  pro- 
bably the  doctrine  of  relation  would  here 
operate  only  in  favour  of  the  assignees  to 
defeat  the  assignment,  and  not  to  set  up 
what  had  been  wrongly  done  under  the 
execution.  The  goods  would  in  such  a 
case  be  the  goods  of  the  trustees  until  the 
fiat ;  and  upon  the  issuing  of  the  fiat  they 
would  become  by  relation  to  the  act  of 
bankruptcy  the  goods  of  the  assignees; 
and  so  the  execution,  never  having  been 
executed  by  seizure  of  the  goods  of  the 
execution  debtor,  would  probably  be  ex- 
cluded altogether.  The  distinction  be- 
tween such  a  case  and  Graham  v.  VVith- 
erby,  ubi  supra,  is  obvious,  because  a 
conveyance  valid  as  against  the  execu- 
tion, though  void  as  against  the  subse- 
quent fiat,  yet  changes  the  property  in 
the  goods  for  the  time,  whereas  an  exe- 
cution by  fieri  facias  does  not  change  the 
property  until  sale. 

As  to  lohat  notice  is  sufficient,  it  has 
been  decided  that  a  general  notice  that 
J.  S.  has  committed  "an  act  of  bankrupt- 
cy," Udall  V.  Walton,  14  M.  &  W.  2-54, 
or  a  notice  that  he  has  done  anything 
which  amounts  to  an  act  of  bankruptcy, 
as  that  he  has  made  a  conveyance  of  all 
his  property  for  the  benefit  of  his  credi- 
tors, Lackington  v.  Elliott,  8  Scott,  N.  R. 
275 ;  or  that  he  has  filed  (though  not 
gazetted)  a  declaration  of  insolvency 
pursuant  to  5  &  6  Vict.  c.  122,  s.  22, 
FoUett  V.  Hoppe,  5  C.  B.  226,  Green  v. 
Laurie,  1  Exch.  335,  is  sufficient.  But 
notice  of  an  intention  to  commit,  Exp. 
Halifax  3  M.  D.  &,  D.  544,  or  of  a  step 
having  been  taken  towards  committing 
an  act  of  bankruptcy;  as  that  J.  S.  has 
signed  a  declaration  of  insolvency,  Con- 
way V.  Nail,  1  C.  B.  643;  or  that  a 
docket  has  been  struck,  Hocking  v. 
Acraman,  12  M.  &  W.  170,  is  not  suffi- 
cient. Notice  in  the  statute  means 
actua.  knowledge,  and  not  merely  the 
means  of  knowledge,  such  as  being  in 
possession  of  an  unread  letter,  containing 
*notice,  Bird  v.  Bass,  6  M.  &  r*.>o7 /-i 
Gr.  143,  G  Scott,  N.  R.  928,  L'^"^'-^-! 
S.  C; 


496 


smith's   leading    cases. 


As  this  note  is,  fortiie  most  part,  con- 
fined to  executions,  let  it  suffice  here  for 
further  exposition  of  the  statute  to  refer, 
as  to  its  effect  upon  a  lien,  to  Bowman 
V.  Malcolm,  U  M.&W.833,  per  Parke, 
B. ;  upon  a  distress,  to  Lackington  v. 
Elliott,  8  Scott,  N.  R.  275;  upon  pay- 
ment by  the  bankrupt,  to  Turquand  v. 
Vanderplank,  10  M.  &  W.  ISO,  per  Al- 
derson,  B. ;  Green  v.  Bradfield,  1  Car. 
&  K.  449;  upon  payment  by  an  agent 
for  the  bankrupt,  to  Kynaston  v.  Crouch, 
14  M.  &-  VV.  266;  upon  mutual  credit, 
to  Bittleston  v.  Timmins,  1  C.  B.  389, 
per  Cresswell,  J.  ;  upon  reputed  owner- 
ship, to  Fawcett  v.  Fearne,  6  Q.  B.  20, 
(first  point,)  which  shews  that  the  as- 
signees are  still  only  entitled,  in  any 
event,  to  such  goods  as  were  in  the  re- 
puted ownership  of  the  bankrupt  with 
the  consent  of  the  true  owner  at  the 
time  of  the  act  of  bankruptcy;  and  Pa- 
riente  v.  Pennell,  2  Mo.  &  Rob.  517,  In 
re  Styan,  2  M.  D.  &.  D.  219,  recently 
(E.  184S)  approved  of  by  the  Court  of 
Exchequer  in  a  case  not  yet  reported, 
from  which  it  appears  that  if  the  consent 
of  the  true  owner  be  bona  fide  retracted 
before  fiat  without  notice  of  the  act  of 
bankruptcy,  the  inchoate  right  of  the 
assignees  is  defeated.] 

This  enactment  [2  &,  3  Vict.  c.  29,] 
which  has  taken  place  since  the  1st 
Edition  of  this  work  was  published,  has 
rendered  the  subject  of  [the  remaining 
portion]  of  this  note  of  much  less  im- 
portance than  it  formerly  was.  Still  it 
is  proper  to  bear  in  mind  the  state  of 
things  before  the  act,  both  in  order  to 
understand  rightly  the  effect  of  its  pro- 
visions, and  to  apply  the  law  in  those 
Ciises  to  which  the  statute  is  applicable. 

Cooper  V.  Chilty  became  celebrated 
on  account  of  the  frequent  discussions 
which  occurred  upon  the  question,  whe- 
ther the  liability  of  the  sheriff  in  such 
cases  was  not  to  be  confined  to  acts  done 
by  him  with  notice  of  the  bankruptcy, 
for  it  had  been  decided  that  trespass 
would  not  lie  against  him  for  taking  the 
b;inkrupt's  goods  in  execution,  after  an 
act  of  bankruptcy,  but  without  notice 
thereof,  and  selling  them  after  commis- 
sion and  notice,  Smith  v.  Milles,  1  T. 
R.  475;  Letchmere  v,  Thoroughgood,  1 
Show.  12;  and  one  of  the  reasons  given 
in  those  cases,  viz.,  that  officers  and 
ministers  of  justice  were  not  to  be  made 
trespassers  by  relation,  was  said  to  apply 
to  actions  of  trover  brought  against 
lliem,  as  well    as   actions   of  trespass, 


though  certainly  the  judgment  in  Smith 
V.  Rlilles  will,  to  any  person  who  r^ooQ-i 
*will  look  narrowly  at  it,  appear  '-  ^ 
to  be  unfavourable  to  such  an  extension 
of  the  principle  therein  established;  for 
the  court  there  appear  to  have  thought 
that  the  exemption  from  actions  of  tres- 
pass was  not  confined  to  sheriffs  and 
ministers  of  justice  only,  but  was  com- 
mon to  them  with  the  king's  other  sub- 
jects. ♦'  There  is  no  instance,"  says 
Ashurst,  J.,  delivering  judgment,  "that 
I  know  of,  where  a  man,  who  has  a  new 
right  given  him,  which,  for  reasons  of 
policy,  is  so  far  made  to  relate  back  as 
to  avoid  all  mesne  encumbrances,  shall 
be  taken  to  have  such  a  possession  as  to 
entitle  him  to  bring  trespass  for  an  act 
done  before  such  right  was  given  to 
him."  So  that  the  court  appears  to  have 
conceived  the  distinction  to  be  rather 
between  the  action  of  trespass  and  that 
of  trover,  than  between  ministers  of  jus- 
tice and  private  persons.  Indeed,  the 
judgment  proceeds  :  "  But  at  all  events 
the  rule  will  hold  with  respect  to  officers 
and  ministers  of  justice;"  and  upon  this 
some  stress  was  laid  in  Balme  v.  Hut- 
ton,  as  also  on  a  dictum  of  BuUer,  J.,  in 
Vernon  v.  Hankey,  2  T.  R.  122,  ex- 
pressed however  in  very  general  words. 
At  last,  in  Potter  v.  Starkie,  4  M.  &l  S. 
260,  it  was  decided  that  the  sheriff  would 
be  liable  in  trover,  though  he  seized, 
sold,  and  paid  over  the  money  before  any 
commission  issued,  and  before  any  no- 
tice; and  the  court  said  this  necessarily 
followed  from  Cooper  v.  Chitty,  for  it 
was  an  unlawful  interference  wiih  an- 
other's goods.  In  Wyatt  v.  Blades,  3 
Camp.  396,  Lord  Ellenborough  held  the 
sheritf,  who  had  seized  and  removed  the 
goods,  after  an  act  of  bankruptcy,  liable, 
though,  on  receiving  notice  from  the  as- 
signees not  to  sell,  he  forebore  to  do  so. 
It  was  remarked  on  these  two  cases,  in 
Balme  v.  Hutton,  that  the  question, 
whether  an  officer  of  justice  be  entitled 
to  any  peculiar  exemption,  seems  hardly, 
if  at  all,  to  have  been  raised  in  them. 
The  law  now  appears  to  have  been  con- 
sidered settled,  tor  in  Lazarus  v.  VVaith- 
man,  5  B.  M.  313,  Potter  v.  Starkie  was 
recognised  ;  in  that  case  the  seizure  and 
sale  were  both  subsequent  to  the  act  of 
bankruptcy  and  prior  to  the  commission  : 
it  is,  however,  remarked  in  Balme  v. 
Hutton,  that  the  report  of  Lazarus  v. 
Waithinan  is  silent  on  the  points,  whe- 
ther the  sherifl^  had  notice  of  the  act  of 
bankruptcy,  and  whether  he  was  iridem- 


COOPER     V.     C  H  I  T  T  Y. 


497 


nified  (for  it  is  proper  to  observe,  that, 
throuj.'-hont  the  whole  Controversy,  it  lias 
be(Mi  admilled,  and  indeed  was  expressly 
held  in  Baline  v.  Hiitton,  that  if  the  she- 
rift'  be  indemnified,  he  stands  on  the 
same  gfround  as  the  execution  creditor 
who  indemnified  him;  and,  in  that  case, 
is  unquestionably  liable.)  It  was  further 
remarked  on  Lazarus  v.  Waithman,  that 
none  of  the  cases  prior  to  Cooper  v. 
Chitty  were  noticed  .n  it,  and  that  the 
distinction  in  favour  of  the  sheriff'  was 
not  pointed  out.  In  Price  v.  Helyar,  4 
Bing'.  597,  the  seizure  and  sale  both 
took  place  before  notice  to  the  sheriff  of 
any  act  of  bankruptcy;  this  case  was 
followed  and  recognised  by  Carlisle  v. 
Garland,  7  Bincr.  ~98,  and  Dillon  v. 
Lanirley,  2  B.  &  Adol.  131;  and  the 
point  was  considered  settled  against  the 
shcrilfi  uiitil,  in  Michaelmas  Term, 
lb31,  the  fdinous  case  of  Balme  v.  Hut- 
ton,  2  Tyrwh.  17;  2  C.  &  J.  20,  occur- 
red in  the  Cuuit  of  Exchequer.  That 
was  an  action  of  trover  for  machinery, 
brought  by  the  assignees  of  Bankart  and 
Bendon,  against  Mr.  Button,  the  sheriff 
of  Yorksliire,  Jewison,  the  chief,  and 
Ingham,  the  deputy,  bailifl^,  of  the  Honor 
of  Pontefract,  and  the  Messrs.  Wood, 
creditors  of  Bankart  and  Benson,  and  to 
whom  they  had  given  a  warrant  of  at- 
torney, which  was  duly  filed,  and  judg- 
ment signed  thereon  upon  the  14th  No- 
vember, 182o,  on  tiie  31st  of  December, 
in  which  year  Bankart  and  Benson  com- 
rniited  an  act  of  bankruptcy.  On  the 
2.'3ih  of  January,  1620,  Ingham,  as  Jewi- 
Kon's  deputy,  seized  the  property  in 
question,  by  virtue  of  a  warrant  directed 
to  Ingham  and  Jewison,  founded  on  a  fi. 
fa.  which  had  issued  upon  the  last-men- 
tioned judgment,  and  was  directed  to 
the  sheriff,  Mr.  Hutton.  On  the  same 
day,  the  property  was  sold  by  Ingham  to 
a  clerk  of  Alessrs.  Wood,  who  executed 
ii  bond  of  indemnity  to  Ingham.  On 
the  21st  of  February,  a  commission  is- 
sued against  Bankart  and  Ben.son,  under 
which  the  plaintiffs  became  assignees. 
Neither  Mr.  Hutton,  Jewison,  nor  Ing- 
ham had  any  notice  of  the  bankruptcy, 
before  the  return  of  the  fi.  fa. 

At  the  trial  a  general  verdict  was 
pj,  J.-,,  1  t(jund*tbr  .Mr.  Hutton, and  against 
'•"""-'  Messrs.  Wood,  and  a  special 
verdict,  containing  the  above  facts, 
as  to  the  liability  of  Jewison  and 
Ingham. 

The  case  was  ably  argued  before  the 
Court  of  Exchequer,  and  the  court,  after 

Vol.  I.— 32 


consideration,  delivered  one  of  the  most 
elaborate  judgments  on  record. 

They  held,  1st,  that  Ingham  having 
been  indemnified  by  Messrs.  Wood,  stood 
on  the  same  footing  with  them,  and  was 
clearly  liable. 

2nd.  That  the  liability  of  Jewison 
was  not  altered  by  his  having  taken  the 
usual  indemnity  from  his  bailiff  Ingham 
against  all  Ingham's  acts  as  deputy. 

3rd.  They  proceeded  to  consider  the 
main  question,  viz.,  whether  Jewison 
was  liable  for  having  seized  and  sold 
after  the  bankruptcy,  but  without  notice 
thereof.  In  order  to  determine  this, 
they  proceeded  to  a  minute  examination 
of  Cooper  v.  Chitty,  and  the  authorities 
previous  and  subsequent  to  it,  and  ar- 
rived at  the  conclusion,  that  the  defend- 
ant Jewison  was  exempted  from  liability 
by  his  official  character,  upon  the  ground 
that  Bailey  v.  Bunning,  1  Lev.  173 ; 
Letchmere  v.  Thoroughgood,  3  Mod. 
236,  1  Shower,  12,  Comb.  123,  and  Cole 
v.  Davies,  L.  Raym.  724,  had  established 
a  distinction  between  the  case  of  the 
sheriff  and  that  of  an  execution  creditor; 
that  this  distinction  was  supported,  not 
impugned  by  Cooper  v.  Chitty;  that  it 
was  mentioned  with  approbation  in  seve- 
ral cases,  which  will  be  found  cited  and 
commented  upon  in  the  judgment;  and 
that  it  was  entirely  overlooked  in  Potter 
V.  Starkie,  and  the  subsequent  cases 
which  have  been  above  enumerated. 
Judgment  therefore  was  given  for  Jewi- 
son, and  against  Ingham. 

This  judgment  was  carried  by  writ  of 
error  to  the  Exchequer  Chamber,  see 
report,  9  Bing.  471 ;  where  it  was  re- 
versed by  Tindal,  C.  J.,  Park,  Littledale, 
Bosanquet,  Taunton,  and  Patteson,  JJ., 
contrary  to  the  opinion  of  Gaselee,  J. 
Lord  Tenterden,  who  had  died  pending 
the  argument,  was  stated  by  Tindal,  C, 
J.,  to  have  been  of  opinion  with  the  ma- 
jority. In  the  mean  while,  a  writ  of 
error  had  been  brought  on  the  judgment 
of  the  Court  of  Common  Pleas,  in  Car- 
lile  V.  Garland;  the  judgment  of  the 
Court  of  Error  is  reported  in  3  Tyrw. 
705;  10  Bing.  452;  it  was  subsequent 
to  that  in  Balme  v.  Hutton,  and  the 
judges  were  equally  divided  upon  the 
main  point,  that,  viz.,  discussed  in  Balme 
V.  Hutton;  Littledale,  Parke,  and  Taun- 
ton, JJ.,  and  Gurney,  B.,  being  of  opin- 
ion that  the  judgment  of  the  court  be- 
low ought  to  be  affirmed  ;  and  Denman, 
C.  J.  Bayley,  Vaughan,  and  Bolland, 
Barons,  being  of  opinion  that  it  ought  to 


498 


SMITHS     LEADING    CASES. 


be  reversed  except  as  to  51.,  to  which 
all  the  jiiilgos  ajrreed  that  the  plaintiffs 
were  er.titled,  there  being  no  doubt  that 
there  had  been  a  conversion  of  their 
goods  to  that  amount.  A  writ  of  error 
upon  this  judgment  was  afterwards 
brought  in  the.  House  of  Lords,  where 
judgment  was  given  in  accordance  with 
the  decision  of  the  Excliequer  Chamber 
in  Biilmc  v.  Hutton;  Garland  v.  Carlilc, 
:3  INJee.  &  VV.  I.r2,  S.  C,  4  Eing.  N. 
C.  7. 

In  Groves  v.  Cowham,  10  Bing.  5,  a 
point  was  determined  on   the  construc- 
tion of  the  insolvent  act,  similar  to  tiiat 
decided  on  the  construction  of  the  bank- 
rupt act,  in  Cooper  v.  Chitty.     On  the 
10th  of  June,  judgment  was  signed  on 
his  cognovit  against  one  Bowler,  who, 
on  the  19th  of  the  same  month,  petition- 
ed  the  insolvent  Debtors'  Court  for  his 
discharge;    upon    the  20th,   the  sheriff 
seized  his  goods  under  a  fi.  fa.,  issued  on 
the  above  judgment;  on  the  23rd,  Bow- 
ler assigned  all  his  effects  to  the  provi- 
sional   assignee,    notice    whereof    was 
forlhwilh  communicated  to   the  sheriff, 
who  was  requested  not  to  sell,  whicli  he 
however  did,  and  paid  over  the  proceeds. 
The  court  held  that  he  was  liable  in  tro- 
ver, in  consequence   of  the  thirty-fourth 
section  of  7  G.  4,  c.  57;  which  enacts, 
that,  "  in  all  cases  where  any  prisoner, 
who  shall   petition   the  court  for  relief 
under  that  act,  shall  have  executed  any 
warrant  of  attorney,  &c.,  to  confess  judg- 
ment, or  shall   have  given  any  cogno- 
vit actionem,  whether  tor  a  valuable  con- 
sideration or  otherwise,  no  person  shall, 
after  the  commencement  of  the  imprison- 
ment of  such  prisoner,  avail  himself,  or 
herself,  of  any  execution  issued,  or  to  be 
issued,  vpon  such  warrant  of  attorney, 
or  cognovit  actionem,  either  hy  seizure 
and  sale  of  the  proper  ty  of  such  prisoner, 
or  any  part  thereof,  or  by  sale  of  such 
property  theretofore  seized,  or  any  part 
thereof:  but  that  any  person  or  persons, 
to  whom  any  sum  or  sums  shall  be  due 
in  respect  of  any  such  warrant  of  at- 
torney or  cognovit  actionem,  shall  and 
r*2401  *'"^y  ^^  ^  creditor,  or  creditors 
■-        -  for  the  same  under  that  act."  The 
court  held  that   the  words   marked    in 
italics  effected  a  statuary  supersedeas  of 
the  execution  ;  that  the  case  was,  there- 
fore, governed  by  Cooper  v.  Chitty,  and 
that  trover  was  maintainable  against  the 
eheriff".     [So  trover  may  be  maintiined 
against  the  sheriff  for  the  sale  of  goods 
under  an  execution  avoided  by  6  Geo.  4, 


c.  Ifi,  s.  108;  Chestnn  v.  Gibbs,  12  M. 
&  W.  Ill,  per  cuf.  Graham  v.  Wither- 
by,  7  Q.  B.  491.  But  trovrr  cannot  be 
maintained  airaiust  the  sheriff  for  a  con- 
version of  the  goods  of  the  assignees, 
when  the  act  relied  upon  as  a  conversion 
has  taken  place  bolore  the  act  of  bank- 
ruptcy;  thus  in  Brookes  v.  Mitchpll,  6 
N.  C.  \W.),  8  ::^colt,  7:59,  S.  C,  where 
the  goods  had  been  seized  belbre  the  act 
of  bankruptcy,  under  a  warrant  of  at- 
torney void  by  3  Geo.  4,  c.  39,  it  was 
held  that  the  assignees  could  not  main- 
tain trover,  see  Everett  v.  Well*?,  2  iScott, 
N.  R.  .525,  2  M.  &  Gr.  209,  S.  C. ;  so 
where  the  sheriff  had  sold  goods  before 
the  act  of  bankruptcy,  it  was  hold  that 
the  assignees  could  not,  by  a  subsequent 
demand,  render  him  liable  in  trover, 
Edwards  v.  Hooper,  11  M.  &  VV.  363.] 

The  assignees,  however,  in  cases  of 
this  description,  are  not  bound  to  sue  the 
sheriff  in  trover;  they  may  waive  the 
tort,  and  bring  money  had  and  received 
for  the  proceeds  of  the  goods,  Kitchen  v. 
Campbell,  3  VVils.  304^;  Young  v.  Mar- 
shall, 8  Bine.  43;  Clarke  v.  Gilbert,  2 
Bing.  N.  C.  343. 

The  danger  of  the  pheriff''s  position 
is  now,  however,  greatly  lessened  ;  for 
by  St.  1  &  2  VV.''4,  c.  58,  commonly 
called  the  Interpleader  Act,  on  any 
claim  being  made  by  assignees  of  bank- 
rupts or  others,  to  any  goods  or  chattels 
taken,  or  intended  to  be  taken,  in  exe- 
cution, or  to  the  proceeds  and  value 
thereof,  the  sheriff  or  officer  may  apply 
to  the  court  from  which  the  process 
issued,  which  may  thereupon  exercise 
for  his  protection  and  for  the  adjustment 
of  such  claims,  the  powers  and  autho- 
rities thereinbefore  contained  in  that 
statute,  and  the  costs  of  all  such  pro- 
ceedings siiall  bo  in  the  discretion  of  the 
court.  The  powers  and  authorities  al- 
luded to  are  given  by  the  previous  sec- 
tions of  the  act,  and  enable  the  court  to 
call  the  parties  before  them  by  rule,  to 
hear  and  adjiulicalc  upon  their  claims, 
and,  if  necessary,  to  order  them  to  try 
an  action,  or  one  or  more  feigned  issues, 
for  the  determination  thereof  But,  in 
*order  that  the  sheriff  may  avail  r  :;f)/r„ 
himself  of  this  act,  he  must  be  '- 
perfectly  without  intere.'t;  Dudden  v. 
Long,  1  Bing.  N.  C.  300;  Ostler  v. 
Bower,  4  Dowl.  259;  nor  must  he  col- 
lude with  either  party;  Braine  v.  Hunt, 
4  Tyrw.  244;  Cook  v.  Allen,  3  Tyrw. 
586  :  and  the  court  will  not  receive  his 
application  merely  quia  timet,  a  claim 


COOPER    V.    CniTTY.  499 

must  actually  have  beep  matle  upon  him,  given  by  this  act  for  the  relief  of  sheriffs 

Bentley  v.  Ilook,  4  Tyrw.  2-'-50;  Isaac  v.  may  now   be   exercised   by  a  judge  sit- 

Spilsbury,  10  Bing.  S.     [He  must  also  ting  at  chambers.     Stat.  1  &  2  Vict.  c. 

apply  williin  a  reasonable  time,  Mutton  45,  s.  2. 
V.  Young,  4  C.  B.  371.]     Tiie  powers 


Nothing  can  be  better  established  in  English  or  American  law  than  the 
general  doctrine,  that  a  sheriff  in  executing  a  writ  pi-oceeds  at  his  peril, 
and  that  if  he  exceed  the  authority  there  given,  although  acting  with  the 
fullest  good  faith,  he  will  be  answerable,  even  where  the  circumstances 
have  been  such,  that  the  utmost  exercise  of  prudence  or  care  on  his  part, 
could  not  have  enabled  him  to  guard  against  mistake.  There  docs  not, 
however,  appear  to  have  arisen,  during  the  brief  continuance  of  the  different 
bankrupt  laws,  which  have  been  in  force  in  the  United  States,  any  case  in 
which  it  has  been  determined,  whether  the  sheriff  can  be  made  so  far  a  tort- 
feasor by  relation,  as  to  become  liable  to  the  assignees  in  trover  or  trespass, 
for  seizing  goods  which  in  consequence  of  proceedings  in  bankruptcy,  have 
proved  not  to  be  the  property  of  parties,  to  whom,  independently  of  the 
decree,  they  would  have  belonged.  The  cases  of  Acker  v.  Campbell,  23 
Wendell,  372,  and  Ash  v.  Putnam,  1  Hill,  302,  would  appear  to  make  the 
nearest  approach  to  the  practical  enforcement  of  this  doctrine,  to  be  found 
in  the  American  decisions.  In  those  cases  the  sheriff  was  held  to  be  liable, 
either  in  replevin  or  trespass,  to  the  owner  of  goods,  for  seizing  them  as  the 
property  of  the  defendant  in  the  execution,  by  whom  they  had  been  pur- 
chased, under  circumstances  of  fraudulent  misrepresentation  As  a  sale 
vitiated  by  fraud,  whether  on  the  part  of  the  buyer  or  seller,  would  seem  to 
be  merely  voidable,  and  not  void  ab  initio.  Hazard  v.  Irwin,  102,  Rowley 
V.  Bigelow,  12  Pick.  307,  it  appears,  that  in  these  cases  the  vendor  was 
allowed,  by  disaffirming  the  contract  and  demanding  back  the  goods,  to 
impose  upon  a  sheriff  a  liability  for  an  act  as  tortious,  which  would  other- 
wise have  been  valid,  as  against  all  the  world. 

In  the  recent  case  of  Tharpe  v.  Stallwood,  5  M.  &  Gr.  760,  it  was  declared 
that  the  cases  of  G-arland  v.  Carlisle,  and  Balme  v.  Hutton,  supra,  497,  had 
definitely  settled  the  law,  that  the  assignees  cannot  treat  the  sheriff  as  a 
trespasser  by  relation,  for  taking  the  goods  of  the  bankrupt  before  the  fiat, 
although,  under  such  circumstances,  they  may  render  him  liable,  in  an 
action  of  trover.  But  it  was  held  that  the  principle  of  those  decisions  only 
applies  where  the  act  complained  of  is  rightful  at  the  time,  and  becomes 
wrongful  afterwards,  as  in  the  case  of  a  seizure  of  goods  by  authority  of 
law,  of  which  the  title  is  in  the  defendant  in  the  execution,  at  the  time  when 
they  are  taken,  although  subsequently  vested  by  relation  in  other  parties. 
It  was,  therefore,  determined  that  an  administrator  may  maintain  trespass 
for  the  asportation  by  the  defendant,  of  the  goods  of  the  intestate,  after  his 
death  and  before  administration  granted,  for  there  the  act  is  wrongful 
from  the  beginning,  and  the  relation  extends  only  to  vesting  the  right  of 
action  in  the  plaintiff.     In  this  respect,  the  case  before   the  court  was  said 


500  smith's    leading    cases, 

to  be  analogous  to  the  well  established  doctrine  of  the  common  law,  that  a 
disscissec  who  revests  his  estate  by  re-entry,  may  maintain  trespass  for  all 
injuries  committed  while  he  has  been  out  of  possession. 

H. 


[*241]  ^ROBINSON    v.    RALEY. 

EASTER— 30  GEO.  2,  B.  R. 
[RErORTED  1  BURR.  316.] 

Several  matters  maybe  put  in  issue  by  a  single  traverse,  provided  they  constitute 
but  one  defence. 

The  traverse  of  a  material  allegation  is  properly  concluded  to  the  country. 

The  defendant  will  not  be  allowed  to  withdraw  his  demurrer  to  tbe  replication  and 
amend,  after  the  court  have  given  judgment  against  him  on  the  demurrer,  and 
after  other  issues  have  been  tried,  and  contingent  damages  assessed  on  them.f 

This  was  an  action  of  trespass.  The  declaration  contained  a  great  number 
of  counts;  among  the  rest,  one  in  trespass  for  breaking  and  entering  the 
defendant's  close;  and  depasturing  it  with,  &c. ;  and  for  breaking  and  enter- 
ino-  his  free-warren;  a  2nd  count,  to  the  like  effect;  (but  in  different  years;) 
so  a  3rd,  4th,  5th,  and  6th;  and  six  more  for  breaking  and  entering  another 
close  called  Sand's  Piece  ;  a  13th  for  taking  and  carrying  away  the  plain- 
tiff's trees;  and  a  14th  for  taking  and  carrying  away  his  goods  and  chattels. 

The  defendant  had  leave  to  plead  several  pleas;  and  accordingly  he 
pleaded :  1st.  The  general  issue,  to  the  whole.  2nd  plea,  ("by  leave,  ut 
supra,)  That  as  to  the  close  called  the  rabbit-walks,  "  that  it  is  one  rood  of 
land,  parcel  of  a  common-field;  and  that  Mr.  Finch,  in  right  of  his  pre- 
bendal  estate,  and  all,  &c.,  have  right  of  common,  &c.,  in  certain  fields, 
called  Middle  Fields,  whereof  the  rabbit- walks  are  parcel ;"  which  right  he 
derives  to  himself;  and  so  justifies  under  it.  The  like  plea  to  the  other  five 
r*0/loi  ^^^^^  counts.  He  pleads,  as  to  the  six  counts  relating  to  Sands's 
L  ■"  -'J  Piece,  the  general  *issue.  To  the  13th  count,  he  pleads  tenancy  of 
another  close,  under  the  plaintiff;  and  justifies  under  a  license,  and  avers 
that  it  was  used  for  gates,  &c.  Another  plea  was  a  right  of  common, 
&c.  &c. 

The  plaintiff,  in  his  replication  to  the  2ud  plea  to  the  1st  count,  traverses 
the  right  of  common ;  and  in  his  replication  to  the  like  pleas,  as  to  the 
other  five  counts,  traverses  the  rabbit-walks  being  parcel  of  the  Middle 
Fields.  In  the  replication  to  the  last-mentioned  pica,  he  traverses  the  right 
of  common.    All  these  issues  were  found  for  the  defendant.    To  the  plea  to  the 

t  Under  3  &  4  W.  4,  c.  42,  sec.  23,  an  amendment  at  the  trial  may  be  made  after 
demurrer.     Beckwifh  v.  Harrison,  5  M.  &,  W.  427. 


ROBINSON    V.     R  A  L  E  Y.  501 

5th  count,  the  replication  traverses,  "  that  the  cattle  were  the  defendant's 
owa  cattle;  and  that  they  were  levant  et  couchant  upon  the  premises,  and 
commonable  cattle."  To  this  there  is  a  special  demurrer  for  cause,  (viz., 
<'  that  the  replication  is  multifarious,  and  that  several  matters,  specifying 
them,  are  put  in  issue;  whereas  only  one  single  matter  ought  to  be  so  :")  and 
joinder  in  demurrer.  To  the  plea  to  the  loth  count,  the  replication  traverses 
the  license;  (after  protesting  "that  the  tree  was  not  used  formates,  &c.,  as 
is  alleged  by  the  defendant's  plea.")  And  to  this  replication  also,  the  de- 
fendant demurs  specially,  and  shows  for  cause,  ''  that  it  concludes  to  the 
country,  whereas  it  ought  to  conclude  with  an  averment." 

Serjeant  Poole,  for  the  defendant,  complained  of  the  hardship  the  plain- 
tiflF  put  upon  the  defendant  in  the  5th  count,  by  enforcing  the  defendant  to 
prove  the  cattle  to  be  his  own  cattle,  and  commonable  cattle,  and  levant 
and  couchant  upon  the  land;  which  hardship  had  obliged  him  to  demur. 

He  argued,  that  some  one  fact  only  ought  to  be  put  in  issue;  not  several. 

He  cited  Co.  Lit.  126,  a.  It  must  be  one  single  certain  material  point. 
And  so  also  8  Rep.  67,  b.  Crogate's  case,  the  last  resolution,  lays  down  the 
rule  accordingly,  "  that  an  issue  ought  to  be  full  and  single." 

Now  here  are  three  distinct  fcicts  put  in  issue,  by  this  replication ;  any 
one  of  which  was  sufficient. 

For  if  the  cattle  were  not  his  own,  or  were  not  levant  and  couchant,  they 
were  not  commonable  cattle.  The  plaintiff  might  as  well  have  put  twenty 
facts  in  issue. 

This  therefore  is,  at  least,  a  fault  in  form  :  and  we  have  demurred  espe- 
cially, and  shewn  this  for  cause ;  "  that  the  *replication  is  multi-  j.<^c)An-t 
farious  and  that  several  matters  are  put  in  issue  (specifying  them)  L  *"  J 
whereas  only  one  single  matter  ought  to  be  so." 

As  to  the  license  :  The  replication,  protesting  that  the  tree  was  not  used 
for  gates,  &c.,  traverses  the  license.  To  this  replication,  we  have  demurred, 
out  of  necessity:  for  though  we  really  have  a  license,  yet  the  person  who 
gave  it  to  us  (the  plaintiff's  steward)  has  denied  it ;  and,  we  apprehend, 
would  do  so  again,  on  oath.  Therefore,  we  have  demurred  specially,  and 
shewn  for  cause  ''  That  the  replication  concludes  to  the  country,  whereas  it 
ought  to  conclude  with  an  averment." 

Now,  they  have  traversed  the  license  specially,  and  to  have  concluded 
with  an  averment.  Crogate's  case,  3rd  resolution,  fo.  67,  a.  b.,  shows  that 
his  license  ought  to  have  been  specially  traversed,  and  concluded  with  an 
averment.  And  Rast.  660,  b.  bis,  661,  630,  651,  and  1  Brown,  353,  and 
Thompson's  Entr.  365,  and  many  other  precedents  are  so. 

Indeed,  where  the  whole  of  the  plea  is  traversed,  the  conclusion  may  be 
to  the  country.  But  this  is  not  a  traverse  of  the  whole.  So  that  this  is  a 
departure,  by  Mr.  liobinson,  from  the  common  form  of  pleading. 

Mr.  Yates  contra,  for  the  plaintiff. 

One  part  of  the  duplicity,  viz,,  the  cattle  not  being  commonable,  is  not 
pointed  out  by  the  special  demurrer. 

However,  this  traverse  is  not  double  :  though  I  agree  that  it  numerically 
contains  several  matters ;  all  which  together  make  up  the  defendant's  plea, 
and  make  one  entire  defence.  And  it  is  within  the  reason  of  Crogate's 
case,  8  Co.  07. 

Whereas  duplicity  is,  v:hcre  distinct  matters,  not  being  part  of  one  entire 


502  smith's    leading    cases. 

defence,  are  put  in  issue.     For  tjiere  are  cases  where  several  matters  may  be 
put  in  one  traverse  :  as,  for  instance,  a  custom  consisting  of  several  parts. 

Now,  all  these  parts  here  traversed  make  one  entire  defence.  For  the 
cattle  must  be  commonable,  levant  and  couchant,  and  his  own  :  or  else  it  is 
no  sufficient  defence.  To  prove  which  he  cited  1  llo.  Abr.  398,  Letter  G. 
pi.  2,  3,  Letters  IL  and  I  throughout ;  1  Saund.  227,  the  case  of  Stennell 
V.  Hogg  ;  and  2  Show.  328,  the  case  of  Manneton  v.  Travilian,  in  point. 

-J .  .,  *As  to  the  license,  the  cause  of  demurrer  shown  is  <<  that  he 
L  ~  -'  ought  to  have  maintained  his  declaration  ;  and  that  he  ought  to  have 
concluded  with  a  traverse  and  averment." 

But  precedents  are  both  ways.  2  lirown's  Entr.  283,  concludes  as  the 
present  does.  And  whoever  has  seen  the  whole  of  this  i-ecord  will  not 
think  that  either  of  the  parties  has  concluded  too  hastily.  He  cited  the 
case  of  Clark  v.  Glass,  Tr.  28,  29  G.  2,  B.  K.,  to  prove  that  where  the 
whole  contents  of  the  plea  are  denied,  the  conclusion  must  be  to  the  coun- 
try :  but  where  only  a  particular  fact  is  denied,  the  conclusion  must  be  with 
an  averment.  He  also  cited  2  Lutw.  1399,  1401,  the  case  of  Hustler  v. 
liaiues. 

Serjeant  Poole,  in  reply. 

1st.  As  to  the  two  matters  making  but  one  entire  defence  : — yet  being 
variety  of  facts,  they  ought  not  both  to  be  put  in  issue.  Crogate's  case,  8 
Co.  67. 

And  the  common  method  is,  to  traverse,  '<■  that  the  said  cattle  were  levant 
and  couchant." 

As  to  the  case  of  Manneton  v.  Trevilian,  I  agree  that  the  cattle  ought  to 
be  levant  and  couchant.  My  demurrer  here  is  in  point-  of  form;  and  is 
special. 

2ndly.  I  do  not  know  but  the  party  may  go  to  issue  in  some  cases ;  but 
I  say  this  is  not  the  common  form. 

The  case  of  Hustler  v.  Raines,  2  Lutw.  1399,  1401,  proves  nothing 
against  me. 

Lord  Mansfield  held  both  these  demurrers  to  be  frivolous. 

The  substantial  rules  of  pleading  are  founded  in  strong  sense,  and  in  the 
soundest  and  closest  logic ;  and  so  appear,  when  well  understood  and  ex- 
plained :  though,  by  being  misunderstood  and  misapplied,  they  are  often 
made  use  of  as  instruments  of  chicane. 

As  to  the  present  case.  It  is  true,  you  must  take  issue  upon  a  single 
point :  but  it  is  not  necessary  that  this  single  point  should  consist  only  of  a 
single  fact.  Here,  the  point  is,  the  cattle  being  entitled  to  common  :  this  is 
the  single  point  of  the  defence.  But,  in  fact,  they  must  be  both  his  own 
cattle,  and  also  levant  and  couchant ;  which  arc  two  different  essential  cir- 
cumstances of  their  being  entitled  to  common  ;  and  both  of  them  absolutely 
requisite. 

So,  as  to  the  license.  The  license  is  the  point  in  question.  And  this  point 
r*04f;-i  ^^  question,  "whether  the  license  was  given,  *or  not,"  is  put  in 
L  "  -'  issue:  the  whole  turns  upon  this  particular  proposition.  Indeed,  it 
may  be  a  different  case,  where  the  whole  of  the  plea  is  not  denied  ;  but  only 
some  parts  of  it.     But  that  is  not  this  case. 

Mr.  Yates  has  made  right  and  reasonable  and  intelligible  distinctions  : 
and  he  has  cited  an  express  authority. 


ROBINSON      V.      RALE  Y.  503 

Mr.  Justice  Denison  conciuTed. 

1st.  As  to  Crogate's  case.  The  replication  «'  da  injurid  siid  propria 
ahsq ;  tali,  cdrnd,"  will  do,  iu  all  cases  where  matter  of  title,  and  other 
things  of  that  kind,  are  not  included  in  the  "  abaq ;  tali  causa:"  and  if 
you  adiuit  theui,  you  may  then  plead  '^  Dc  injuria  sua  propria  absque  resi- 
<lt(o  caus<c  ;"  traversing  that  residue.  But  the  rule  in  Crogate's  case  does 
not  affect  this  case.  For  here  the  question  is  one  single  proposition,  viz., 
the  measure  of  the  common  :  and  the  measure  of  the  common  is  thelevancy 
and  couchancy  jointly  with  the  property. 

Skinner,  137,  is  a  more  sensible  report  of  the  case  of  Molliton  v.  Trevilian, 
than  2  Shou'.  328.  And  there,  the  levancy  and  couchancy,  together  with 
the  property,  were  esteemed  to  be  the  measure  of  the  common :  and  not  the 
levancy  and  couchancy  only. 

So  that  nothing  more  is  here  traversed  than  the  measure  of  the  common. 
The  case  is  in  point. 

Besides,  I  think  it  is  within  Crogate's  case. 

As  to  the  license.  It  is  right,  and  avoids  the  prolixity  of  pleading.  The 
old  way,  indeed,  was  otherwise  :   but  it  is  altered  of  late. 

And  he  cited  a  case  (of  an  alternate  way  of  traversing  a  corrupt  agree- 
ment), which  was  in  M.  5  G.  1,  B.  E,.,  Fen  v.  Alston,  where  it  was  holden, 
''  that  the  plaintiff  has  a  liberty  either  to  reply  that  the  bond  was  given 
upon  another  account,"  and  to  traverse  the  corrupt  agreement  with  an 
absque  hoc  ;  or  to  deny  the  corrupt  agreement  directly,  and  conclude  to  the 
country.  And  the  case  of  Baynham  v.  Mathews,  2  Strange,  71,  goes  upon 
the  very  same  foundation ;  and  mentions  the  same  alternative. 

Mr.  Justice  Foster. — I  am  of  the  same  opinion. 

Mr.  Norton,  who  was  also  of  counsel  for  the  defendant,  desired  the  court 
not  to  give  judgment  yet;  but  to  give  them  an  opportunity  to  move  for 
leave  to  withdraw  their  demurrers  and  amend :  which  the  court  agreed  to. 
And  in  a  few  days  afterwards,  Mr.  Norton  moved  for  leave  to  withdraw  the 
*two  demurrers,  and  plead  to  issue;  (upon  payment  of  costs;)  r.^cAc^ 
and  a  rule  was  there  upon  granted  to  show  cause.  L  "^     J 

And  now  Mr.  Yates  showed  cause,  for  the  plaintiff,  against  the  defen- 
dant's being  at  liberty  to  withdraw  the  two  demurrers,  and  plead  to  issue. 
And  he  cited  6  IMod.  102,  the  case  of  Cross  v.  Bilson  ;  6  Mod.  1,  the  case 
of  Stable  V.  Haydon;  1  Lord  Raym.  G68,  the  case  Fox  v.  Wilbraham  ; 
and  2  Strange,  1002,  the  Bank  of  England  v.  Morrice. 

Serjeant  Foole  and  Mr.  Norton  contra,  for  the  defendant. 

The  msrits  have  not  been  tried  upon  these  demurrers.  We  move  this  at 
common  law;  not  under  any  statute;  and  the  court  are  not  bound  down  by 
any  certain  rules.  And  they  cited  2  Saund.  402  ;  Bex  v.  Ellames,  2 
Strange,  97G,  Duchess  of  Marlborough  v.  Widmore,  Hil.  4  Gr.  2,  B.  B., 
the  case  of  Cope  v.  Marshall,  Tr.  28  G.  2,  B.  R.  ;  vide  ante,  259,  S.  C 

The  c<s^  of  aiddins  v.  Giddins,  Tr.  29,  30  Geo.  2,  B.  R.,  was  even  after 
the  cniir;  had  given  their  opinion. 

And  h,re  \.-i  a  declaration  of  twenty  counts,  manifestly  intended  to  catch 
tho  defendant,  and  to  save  costs. 

If  our  motion  is  granted,  the  contingent  damages  assessed  will  be  out  of 
the  case,  and  will  be  as  none  at  all. 


504 


smith's   leading    cases. 


Lord  Mansfhld. — It  is  admitted  to  have  been  done,  after  a  demurrer  and 
argument :  but  this  is  after  a  trial ;  and  i^-ithout  any  favourable  circum- 
stances. 

Now,  as  no  case  of  such  an  amendment  after  a  trial  is  cited,  I  take  it  for 
granted  that  none  exists. 

These  are  frivolous  demurrers  :  and  the  only  view  of  this  motion  is  to  get 
rid  of  the  costs.  But  the  plaintiff  would  have  had  his  costs,  if  the  defen- 
dant had  done  right  at  first,  and  joined  issue  upon  these  facts,  if  they  had 
been  found  against  him. 

So  that  here  is  neither  precedent  nor  reason  for  allowing  this  motion. 

Mr.  Justice  Dcnison  concurred. 

Where  the  demurrer  is  first  argued,  before  any  trial  of  the  issues,  the 
court  will  give  leave  to  amend:  as  in  the  case  of  Giddins  v.  Giddins.  But 
thio  is  an  attempt  to  amend  an  issue  at  law,  after  a  verdict  has  been  found 
on  the  issues  upon  facts,  and  contingent  damages  found  upon  the  de- 
murrers; of  which  there  never  was  an  instance.  And  we  do  not  know 
where  it  would  end;  nor  do  I  well  know  how  the  cause  could  be  again  car- 
ried down  to  trial. 

r^oi^-i       *^^  ^^^^  ^^'^  ^^  fi^"''^*'  g*^"^  down  to  issue,  and  had  been  found 
L  "     J  against  the  defendant,  it  would  have  carried  costs. 

The  court  cannot  help  seeing  that  this  is  upon  record  :  here  are  verdicts 
and  contingent  damages  found.  Therefore,  we  cannot  help  this  :  I  wish  we 
could ;  because  the  merits  seem  to  be  with  the  defendant. 

The  cases  of  amendment  cited  are  where  the  whole  is  supposed  to  be  in 
paper;  or  else  the  court  could  not  have  done  it.  We  have  no  authority  to 
do  this,  after  it  is  plainly  upon  record. 

Mr.  Justice  Foster  concurred. 

Per  cur'  unanimously  judgment  for  the  plaintiff  upon  the  demurrer. 


The  decision  of  the  court  upon  tlie 
former  of  the  two  points  involved  in  this 
demurrer  was  approved  of  in  O'Brien  v, 
Saxon,  2  B.  &  C.  903.  The  declara- 
tion there  was  for  maliciously,  and  with- 
oiU  reasonable  or  probable  cause  suing 
out  a  commission  of  bankruptcy  against 
the  plaintiff.  Plea,  that  the  plaintitF, 
before  the  suing  out  of  the  commission, 
being  a  trader,  and  indebted  to  the 
defendant  in  lOOZ.,  became  bankrupt, 
whereupon  the  defendant  sued  out  the 
r*9J7  1  ^commission.  Replication,  De 
l  J    injuria.      The  defendant   de- 

murred, and  assigned  for  cause  that  the 
plaintiff  had  attempted  to  put  in  issue 
three  distinct  thing.s,  viz.,  the  trading, 
the  petitioning  creditor's  debt,  and  the 
bankruptc}'.  But  the  court  held  it  good, 
for  "  tiie  three  facts  connected  together 
constitute  but  one  entire  proposition, 
and,  therefore,  the  replication  is  good." 


[Sn,  in  Eden  v.  Turtlo,  10  M.  &  W. 
(i35,  where  the  acceptor  of  a  bill  i)Iead- 
ed,  that  the  drawer  who  had  indor.sod  it 
over  lield  it  for  a  special  purpose  and  for 
the  sole  use  and  benefit  of  the  defen- 
dant, a  replication  denying  that  the 
drawer  held  it  for  a  special  purpose  and 
for  the  sole  use  and  benefit  ot"the  defen- 
dant, was  held  to  be  good.]  iSo  it  was 
lield  in  Webb  v.  Weatherby,  1  Biiig.  N. 
C.  .502,  that  payment  in  .satisfaction  and 
acceptance  in  satisfaction  may  both  be 
put  in  issue  by  the  same  replication, 
[And  where  the  plea  alleged  a  payment 
by  an  agent,  a  replication  that  the  de- 
fendant did  not  by  his  agent  in  that 
behalf  pay  was  held  good.  Bennison  v. 
Thelwell,  7  M.  &  VV.  512;  Beli  v. 
Tuckett,  3  M.  &  Gr.  784,  4  Scott,  N. 
R.  402.  S.  C. ;  Pigeon  v.  Osborne,  12  A. 
&  E.  715.  So,  in  Wa«hbourn  v.  Bur- 
rows,   1  Exch.  1U7,   was  a  replication 


ROBINSON     V.     RALEY. 


505 


putting  in  is«iie  the  various  steps  through 
which  the  plaintiff  had  obtained  satisfac- 
tion by  sale  and  application  of  the  pro- 
ceeds'of  a  mortgag-e  security.]  But 
though  several  facts  may  often  be  tra- 
versed cumulatively,  where  they  con- 
stitute together  one  ground  of  action  or 
defence,  yet  care  must  be  taken  to  tra- 
verse them  not  copulatively,  but  in  tlie 
disjunctive,  whenever  proof  ofall  of  them 
is  not  absolutely  incumbent  on  the  oppo- 
site party,  Gorarn  v.  Sweeting,  2  VVms. 
Saund.  207;  Moore  v.  Boulcott,  1  Bing. 
N.  C.  323;  Stubbs  v.  Lainson,  5  Dowl. 
162;  [unless  the  pleading  traversed  be 
distributive,  see  Wood  v.  Peyton,  13  M. 
&  \V.  30.]  And  tiic  rule  that  several 
facts  constituting  one  single  point  may 
be  traversed  cumulatively,  must  be 
taken  with  considerable  qualification  ; 
for  every  plea  or  replication,  which  is 
not  bad  for  duplicity,  consists  [as  Mr.  J. 
Patteson  remarks  in  Selby  v.  Bardons, 
3  B.  &  Ad.  9)  of  a  single  point,  yet 
there  are  cases  where  a  traverse  of  seve- 
ral matters  constituting  one  plea  or  one 
replication  has  been  disallowed.  See 
Faulkner  v.  Chevell,  5  Nev.  &  M.,  5  A. 
&  E.  213;  White  v.  Reeves,  2  Moore, 
23;  [De  Wolff  v.  Bevan,  13  M.  &  W. 
160,  where  the  doctrine  laid  down  in  the 
principal  case  was  di.-cussed,  and  ex- 
plained, and  it  is  said  that  the  replica- 
tion to  a  plea  of  accord  and  satisfaction 
in  the  old  form  ought  not  to  traverse 
both ;  Bonzi  v.  Stewart,  8  Scott,  N.  R. 
525;]  and  Smith  v.  Dixon,  7  A.  &  E. 
21.  Indeed  the  cases  regarding  dupli- 
city seem  to  rest  at  present  on  no  well- 
settled  principle.  See  Lord  Tenlerden's 
r:^:.-),-,-:  *observations  in  Selby  v.  Bar- 
'-■^^"'J  dons,3  B.  &Ad.l.  In  Hulme 
V.  MuiTgleslone,  Mich.  T.  1837,  report- 
ed 3  Mee.  &  W.  30,  6  Dowl.  112,  the 
question  what  constitutes  duplicity  was 
brought  before  the  court  by  demurrer  to 
a  replication  traversing  both  sides  of  a 
plea  of  mutual  credits.  The  declaration 
was  by  assignees  of  a  bankrupt  for  money 
had  and  received  to  their  use;  the  de- 
fendant pleaded  among  other  things  as 
to  19Z.  19s.  parcel,  &c.,  that  the  bankrupt 
was  before  bankruptcy  indebted  to  the 
defendant  in  20^  for  goods  sold,  and  that 
before  bankruptcy  he  lent  the  defendant 
a  cheque  for  97/.  10s.  on  the  Chester- 
field bank,  which  cheque  the  defendant 
procured  to  be  cashed  after  the  bank- 
ruptcy, and  the  amount  of  which  was 
the  saine  money  for  which  the  plaintiffs 
had  declared  ;  and  as  to  19Z.  19s.  thereof 


defendant  claimed  to  set  off  under  St.  6, 
G.  4,  c.  16,  s.  50.  Rrplicadon  that  the 
bankrupt  was  not  indebted  to  the  defen- 
dant NOR  did  the  bankrupt  give  credit  to 
the  defendant  in  manner  and  form,  &c., 
the  court  after  argument  advised  the 
plaintiff  to  amend,  which  he  accordingly 
did  on  payment  of  costs.  See  further. 
Smith  V.  Dixon,  6  Dowl.  47;  [Butcher 
V.  Stewart,  9  M.  &  W.  405;]  and 
Stevens  v.  Underwood,  4  Bing.  N.  C. 
655.  The  power  of  putting  the  whole 
of  a  defence  in  issue  must  of  course  be 
taken  subject  to  the  qualifications  esta- 
blished by  Crogate's  case,  which  see 
with  the  notes  ante,  p  53.  [And  nega- 
tive pregnancy  must  be  avoided,  Jones 
V.  Jones,  16  M.  &  W.  710.]  Where  a 
traverse  is  bad  for  duplicity,  it  appears 
[from  some  authorities]  to  make  no  dif- 
ference though  one  part  of  it  may  be 
immaterial.  Stevens  v.  Underwood,  4 
Bing.  N.  C.  655;  Regil  v.  Green,  1 
Mee.  &  Welsh.  328.  [This  view  is 
sustained  by  decisions,  that  it  is  objec- 
tionable, as  tending  to  embarrass  the 
trial,  to  traverse  so  as  to  put  in  issue  to 
be  tried  an  immaterial  fact,  either  by 
involving  in  the  traverse  some  matter 
not  alleged  expressly  or  impliedly  by  the 
opposite  party,  as  in  Bishton  v.  Evans,  2 
Cr.  M.  &  R.  20,  where  the  plaintiff  al- 
leged for  breach  of  the  condition  of  a 
bond  non-payment  of  6000/.,  and  tlie  de- 
fendant pleaded  payment  of  6000/.  and 
interest ;  (but  see  the  dicta  in  De  Ber- 
nardy  v.  Spalding,  4  Q,.  B.  823,  where 
Bishton  V.  Evans  was  not  cited;)  or  by 
traversingan  averment  immaterial  to  the 
case,  either  separately  or  together  with 
material  averments,  as  in  Bushell  v. 
Lechmore,  1  Lord  Raym.  369 ;  Hall  v. 
Tapper,  3  B.  &  Ad.  655;  Regil  v.  Green, 
ubi  supra;  Radford  v.  Smith,  3  M.  & 
W.  254;  Thurman  v.  Wild,  11  Ad.  & 
El.  453;  Turnley  v.  M'Gregor,  6  Scott, 
N.  R.  906.  Indeed,  to  do  so  in  a  traverse 
seems  quite  as  objectionable  as  to  plead 
affirmatively  two  distinct  matters  as  de- 
fences, though  only  one  of  them  be  in 
law  a  defence,  *a  course  open  p.^^y^i 
to  the  objection  of  duplicity,  "-  "  •* 
because  it  embarrasses  the  plaintiff  in 
his  replication,  Wright  v.  Watts,  3  Q. 
B.  89.  Nor  does  the  decision  of  the 
Court  of  Exchequer  Chamber  in  the  case 
of  Palmer  v.  Goden,  8  M.  &  W.  890,  (if 
its  effect  be  confined  to  the  point  actually 
decided),  conflict  substantially  with  t';c 
former  authorities.  That  was  an  action 
of  covenant  for  rent  of  turnpike  tolls,  to 


500 


SMITHS  LEADING  CASE?. 


which  there  was  a  plea,  tliat  iho  plain- 
titfs  entered  upon  part  of  the  tolls  and 
ejected  expollod  put  ont  and  removed 
the  defendant  from  the  possession  there- 
of, &.C.  Replication  that  the  plaintifls 
did  not  enter  into  or  upon  the  said  part 
or  portion  of  the  said  demised  tolls,  or 
eject  expel  put  out  or  remove  the  defend- 
ant from  the  possession  thereof  mndo  et 
forma,  to  which  there  was  a  special  de- 
murrer on  the  ground  that  tiie  allegation 
of  entry  was  immaterial,  and  ought  not 
to  have  been  traversed,  on  which  ground 
the  Court  of  Exchequer  gave  judgment 
for  the  defendant.  The  Court  of  Ex- 
chequer Chamber,  however,  reversed 
that  judgment  on  the  ground,  it  would 
seem,  that  an  entry  upon  tolls  was  im- 
possible, and  the  averment  and  traverse 
of  it  insensible,  so  that,  in  fact,  7io  sepa- 
rate issue  was  raised  upon  it,  or  that,  if 
it  had  any  meaning,  it  must  be  taken  as 
part  of  the  defendant's  own  description 
of  the  eviction  relied  upon,  which  the 
plaintiffs  had  a  right  to  follow  in  their 
traverse.  See  De  Bernardy  v.  Spalding,  4 
Q.  B.  823,  2  Wms.  Saund.  207,  b.  (?n).] 

As  to  the  second  cause  of  demurrer,  it 
is  now  settled  that,  wherever  a  subse- 
quent pleading  traverses  a  material  part 
of  the  former  one  in  such  a  manner  that 
the  adversary,  if  he  were  obliged  to  an- 
swer it  at  length,  could  do  nothing  but 
lepeat  the  allegation  traversed,  there  a 
conclusion  to  the  country  is  proper,  and 
that  whether  the  traverse  be  or  not  pre- 
faced by  an  inducement.  Reg.  Gen.  PI. 
Hil.  1834,  PL  13.  See  1  Wms.  Saund. 
103  a,  note  3. 

With  respect  to  the  refusal  of  the  ap- 
plication to  amend,  the  courts  always 
refuse  permission  to  do  so  under  such 
circumstances  as  those  in  the  principal 
case,  [Baden  v.  Flight,  4  N.  C.  35  ;  Pear- 
son V.  Rogers,  9  A.  &  E.  310;  Cruck- 
nell  V.  Truman,  9  M.  &  W.  684,  2  Dowl. 
N.  S.  276,  S.  C. ;  Jones  v.  Jones,  10  M. 
&  W.  699,  per  curiam] ;  and  even  in 
cases  where  the  objection  is  not  so  strong, 
leave  to  amend  is  by  no  means  granted 
as  a  matter  of  course.  See  Kinder  v. 
Paris,  2  II.  Bl.  561 ;  Rex  v.  Holland,  4 
T.  R.  459;  Evans  v,  Stevens,  Ibid.  228  ; 
Wood  v.  Grimwood,  10  B.  &  C.  689; 
Saxby  v.  Kircus,  Say,  117;  Noble  v. 
King,  1  H.  Bl.  37;  Jordan  v.  Twells, 
Hardw.  171.  Indeed  the  court  is  very 
reluctant  to  amend  after  its  opinion 
has  been  delivered  upon  argument; 
for,  if  it  were  to  become  usual  so 
to  do,  great   encouragement  would    be 


afforded  to  frivolous  and  experimental 
demurrers,  since  parties  would  take  the 
chance  of  succeeding  upon  argument  of 
any  legal  objections  svhich  might  occur, 
knowing  that,  in  case  of  failure,  they 
would  be  allowed  to  amend,  and  go  to 
trial  on  the  facts.  See  Say,  R.,  116 — 
17,  and  Bramah  v.  Roberts,  1  Bing.  N. 
C.  483,  where  Tindal,  C.  J.,  in  refusing 
such  aa  application,  said,  "The  law  of 
Westminster  *llall,  1  believe,  r*.)io-) 
ever  since  it  stood  in  the  place  ^  *"  -■ 
in  which  it  now  stands,  has  been  that, 
if  a  party  thinks  proper  to  rest  his  de- 
fence on  his  case  upon  a  point  of  law, 
raised  on  the  record,  he  must  either 
stand  or  fall  upon  the  point  so  raised. 
I  do  not  mean  to  say  that  a  case  may 
not  arise,  where  a  point  being  so  taken, 
a  party  may,  even  after  judgment,  apply 
to  the  court  to  amend  ;  but,  according  to 
the  advice  of  Lord  Coke,  Butler  and 
Baker's  case,  3  Rep.  25,  you  ought 
never  to  rely  on  a  point  of  law  when 
the  flicts  are  in  your  favour.  Although 
there  are  excepted  cases,  which  will 
always  be  attended  to,  I  should  expect 
after  an  argument  has  been  heard,  and 
judgment  given  for  the  plaintiff,  at  least 
a  distinct  affidavit  of  merits  from  those 
who  make  the  application." 

But  after  demurrer  and  joinder  and 
before  argument,  leave  to  amend  is  now 
a  matter  of  course;  for,  indeed  the  rea- 
son that  the  statute  of  Elizabeth  required 
objections  of  form  to  be  shewn  specially 
for  cause  of  demurrer,  was  to  give  the 
parties  an  opportunity  of  amending 
them.  See  Ilatlon  v.  Walker,  2  Str. 
816;  and  amendments  are  sometimes 
allowed  even  after  argument.  See 
Ayres  v.  Wilson,  1  Dougl.  385;  Waters 
V.  Ogden,  2  Id.  452;  Alder  v.  Chip,  2 
Burr.  756;  Cholmley  v.  Paxton,  3  Bing. 
1.  And  so  long  ago  as  Michaelmas  2 
Anne,  the  rule  which  has  ever  since  pre- 
vailed was  laid  down  in  the  following 
terms,  viz.:  "Since  pleading  in  paper  is 
now  introduced  instead  of  the  old  way 
of  pleading,  ore  fenus,  at  the  bar,  it  is 
but  reasonable  after  a  plea  to  issue  or 
demurrer  joined,  that  upon  payment  of 
costs  the  parties  should  be  at  liberty  to 
amend  their  plea  or  to  waive  their 
plea  or  demurrer,  while  all  the  pro- 
ceedinirs  are  on  paper."  Anon.  2 
Salk.  520,  For  in  ancient  times  the 
counsel,  as  is  well  known,  used  to  deli- 
ver the  declaration,  plea,  &c.,  ore  fenus, 
at  the  bar,  up  to  demurrer,  or  issue  in 
fact,  and,  in  case  of  any  mistake,  used  to 


ROBINSON    V.     RALEY. 


507 


correct  themselves  and  amend  it.  Now 
therefore  that  paper  pleadin^^s  are  sub- 
stituted for  these  oral  ones,  the  same 
species  of  amendments  are  permitted, 
not  in  consequence  of  any  statute,  but 
merely  in  continuance  of  the  old  com- 
mon law  practice. 

But  when  the  proceedings  have  been 
entered  upon  record,  the  common  law 
power  of  amendment  ceases;  for  the 
judges  at  common  law  were  prohibited 
from  allowing  alterations  to  be  made  in 
any  record,  Britton,  proem,  2,  3 ;  and 
indeed  several  of  them  were,  during  the 
reign  of  Edward  the  First,  severely 
punished  for  so  doing,  among  whom  the 
Lord  Chief  Justice  Ingham,  or  Hengham, 
was  fined,  according  to  some,  7000,  to 
others,  800,  marks;  claus.  6  Edw.  I.  m. 
6.  Dugd.  Chron.  Ser.  26.  Year  Book, 
M.  2  Ric.  3,  10 ;  4  Inst.  255 ;  1  H.  P. 
C.  646;  which  sum,  as  we  are  told  by 
Justice  Southcote,  3  Inst.  72,  4  Inst. 
255;  was  expended  in  building  a  clock- 
house  at  Westminster,  with  a  clock  to 
be  heard  in  the  Hall — a  circumstance 
which,  as  is  observed  by  Mr.  J.  Cole- 
ridge, in  his  admirable  edition  of  the 
Commentaries,  explains  a  dictum  of 
Lord  Holt.  Anon.  6  JVlod.  130;  where 
his  lordship,  refusing  to  amend  a  record, 
said,  "  He  considered  there  wanted  a 
clock-house  over  against  the  Hall-gate." 

Several  statutes,  however,  were  soon 
passed,  authorising  amendments  in  the 
record  itself  And  others  called  statutes 
of  Jeofails,  curing  mistakes  of  form  with- 
out any  actual  alteration.  See  a  good 
account  of  these  acts,  B.  N.  P.  321,  a. ; 
and  see  Siboni  v.  Kirkman,  3  Mee.  & 
Welsh.  46,  where  the  omission  of  a 
similiter  was  amended  even  after  Writ 
of  Error. 

In  construing  the  statutes  of  amend- 
ment, there  was  one  general  rule,  viz., 
that,  in  order  to  amend  under  them, 
there  must  be  something  to  amend  by. 
Thus  the  writ  or  bill  was  amendable  by 
the  praecipe;  the  pleadings  by  the  draft 
under  counsel's  hand ;  the  Nisi  Prius 
roll  by  the  plea  roll ;  the  verdict,  if  ge- 
neral, by  the  memory  or  notes  of  ihe 
judge,  or  notes  of  the  associate  or  clerk 
of  assize,  if  special,  by  the  notes  of 
counsel  or  by  affidavit;  the  writ  of  exe- 
cution by  the  judgment,  or  by  the  award 
of  it  upon  the  roll,  or  by  former  process. 
See  Tidd's  Prac.  9  Ed.  p.  712  ;  B.  N.  P. 
321,  a,  et  seq. ;  [R.  v.  Virrier,  12  A.  & 
E.  317;  Thorpe  v.  Ilooke,  1  Dowl.501; 
Arnell  v.  Weatherby,  5  Tyrwh.  485; 


Bicknell  v.  Weatherall,  1  Q.  B.  914, 
by  notes  of  under  sheriff",  Wnliis  v, 
Goddard,  2  M.  &  Gr.  912.  It  has  been 
held  that  the  issue  may,  even  after 
verdict,  be  amended  by  the  writ,  in 
order  to  cure  a  variance  between  it 
and  the  writ  of  trial.  Watts  v.  Ball,  1 
M.  &  Gr.  208  In  Cheese  v.  Seales,  10 
Meeson  &  Welsby,  490,  where  the  dis- 
tringas commanded  the  sheriff'  to  have 
the  bodies  of  the  jurors  in  vacation 
instead  of  term,  and  was  tested  on 
the  day  on  which  it  should  have  been 
returned,  the  court  amended  it  by  the 
award  of  the  jurata.  A  writ  of  sum- 
mons was  amended  by  the  precipe,  in 
Kirk  v.  Dolby,  6  Mee.  &  W.  630.  In 
Williams  v.  Williams,  10  M.  &  W.  477, 
the  entry  of  writs  on  the  roll,  to  save 
the  Statutes  of  Limitations,  and  the 
writs  themselves,  were  amended  after 
demurrer  and  argument.  And  a  similar 
amendment  was  allowed  in  Culverwell 
v.  Nugee,  15  M.  &  W.  559,  see  infra. 
An  amendment,  where  there  is  some- 
thing to  amend  by,  may  be  made  in  a 
criminal  as  in  a  civil  case,  R.  v.  Virrier, 
12  A.  &  E.  217.J  However,  several 
cases  occur  in  the  books  in  which  re- 
cords have  been  amended,  although  it 
would  appear  that  there  was  nothing  to 
amend  by;  for  instance,  Halhead  v.  Abra- 
hams, 3  Taunt.  81 ;  where  in  an  action 
on  a  bond,  the  plaintiff'* was  non-  r*24Qi 
suited  for  a  variance  between  the  '-  J 
bond  and  the  statement  of  it  in  the  de- 
claration ;  and  the  court  set  aside  the 
nonsuit,  and  amended  the  declaration. 
See  Skutt  v.  Woodford,  1  H.  Bl.  238  ; 
and  Tidd's  Prac.  697-8,  708-9.  [In 
Brown  v.  Fullerton,  13  Meeson  & 
Welsby,  556;  2  Dowl.  &  L.  251,  S. 
C,  a  plaintiff"  was  added,  and  in  Christie 
V.  Bell,  16  M.  &  W.  669,  the  character 
in  which  parties  sued  and  were  sued 
was  added  to  the  writ  of  summons  though 
there  was  nothing  to  amend  by,  all  to 
save  the  Statute  of  Limitations.  In 
Campbell  v.  Smart,  5  C.  B.  196,  how- 
ever, the  court  refused  for  that  purpose 
to  alter  the  date  of  the  writ  contrary  to 
the  truth.  And  in  Goodchild  v.  Lead- 
ham,  1  Exch.  706,  leave  to  add  a  defen- 
dant was  refused.  See  the  note  to  Rice 
v.  Shute,  post,  292].  And  the  late  case 
of  Siboni  v,  Kirkman,  3  Mee.  &  Welsh. 
46,  seems  to  prove  that  where  the  error 
is  an  evident  misprision  of  the  clerk  in 
omitting  a  well  known  and  established 
form  of  loords,  it  is  not  necessary  to 
produce  any  thing  to  amend  by  in  order 


508  smith's   leading    oases. 

to  induce  the  court  to  supply  the  defi-  substituted  for  the  plea  and  issue  rolls, 
ciency.  Tiie  subject  is  not  now,  how-  it  may  be  amended  by  the  former,  as  it 
ever,  of  so  much  practical  importance  as  once  might  have  been  by  the  latter;  be- 
formerly;  for  by  Reg.  G.  Hil.  18;U,  pi.  sides  which,  very  extensive  powers  of 
15,  it  is  directed  that  "  the  entry  of  amending  it  at  the  trial  are  given  by 
proceedings  on  the  record  for  trial,  or  statutes  1  G.  4,  c.  55;  9  G.  4,  c.  15; 
on  the  judgment  roll,  according  to  the  and  3  &  4  W.  4,  c.  42;  the  provisions 
nature  of  the  case,  shall  be  taken  to  be,  of  which  will  be  found  in  the  notes  to 
and  siiall  he,  in  fact,  the  first  entry  of  the  Briatow  v.  Wright,  post, 
proceedings  in  the  cause,  or  of  any  part  The  common  law  rule,  that  a  record 
thereof  upon  record."  !So  that  now  the  was  not  amendable,  must  be  taken  to 
proceedings  remain  in  paper  until  the  mean  that  it  was  not  amendable  after 
making  up  of  the  judgment  roll,  in  all  the  term.  See  R.  v.  Carlile,  2  B.  & 
cases,  except  those  in  which  there  is  a  Adol.  971 ;  for  during  the  term  the  re- 
trial;  and,  with  respect  to  the  Nisi  cordis  said  to  be  in  fieri;  and  it  is  in 
Prius  record,  it  appears  clear  that,  as  the  breast  of  the  court  to  mould  it  as  the 
the  paper  pleadings  and  issue  are  now  justice  of  the  case  requires. 


No  question  has  been  more  frequently  determined  in  courts  of  justice  in  this 
country,  than  that  duplicity  will  vitiate  a  plea  on  the  one  hand,  and  on  the 
other,  that  the  averment  of  several  facts,  going  to  make  up  one  point  will 
not  render  a  plea  double.  Stevenson  v.  White,  3  Har.  &  M'Henry,  455 ; 
Dates  V.  Blake,  6  Mass.  336.  Thus,  when  the  plaintiff  declared  on  a  cov- 
enant by  the  defendant,  to  make  a  deed  of  conveyance,  when  thereto 
requested,  and  alleged  a  request  and  refusal,  a  plea  traversing  both  request 
and  refusal,  was  held  bad  for  duplicity,  as  containing  two  distinct  points, 
either  of  which  by  itself,  would  have  constituted  a  sufficient  defence.  Con- 
elly  V.  Peirce,  7  Wend.  130. 

In  like  manner,  a  replication,  in  confession  and  avoidance,  which,  as  con- 
taining no  traverse,  and  merely  setting  forth  new  matter,  comes  under  the 
same  law  as  an  affirmative  plea,  was,  in  Cooper  v.  Heermance,  3  Johns.  315, 
held  bad,  where  it  contained,  as  an  answer  to  a  plea  of  discharge  under  an 
insolvent  act,  averments  of  three  several  acts  of  fraud,  committed  in  obtain- 
ing such  discharge  :  and  in  Craig  v.  Brown,  1  Peters,  C.  C.  R.  443,  a  repli- 
cation to  plea  of  the  statute  of  limitations,  that  the  plaintiff  was  beyond  sea, 
and  that  the  account  was  between  merchant  and  merchant,  was  also  deter- 
mined to  be  double.  The  same  general  principle  was  also  applied  under 
various  circumstances,  in  the  cases  of  the  U.  S.  v.  Grurney,  1  W.  C.  C.  E,. 
446;  Kennedy  v.  Strong,  10  Johnson,  289;  Nichols  v.  Arnold,  8  Pick. 
172  ;  Burrass  v.  Hewit,  3  Scammon,  224;  Benson  v.  Elliott,  5  Blackford, 
451 ;  M'Connell  v.  Stettincies,  2  Oilman,  707 ;  The  Hampshire  Bank  v. 
Billings,  17  Pick.  87. 

It  is  obvious  that  the  introduction  into  a  plea  of  matter  merely  of  induce- 
ment or  surplusage,  cannot  render  it  double  ;  Lord  v.  Tyler,  14  Pick.  156  ; 
Porter  v.  Brackenridge,  2  Blackford,  385 ;  Stewardson  v.  White,  3  Har.  & 
M'Henry,  455 ;  and  in  these  cases  the  court  appear  to  have  entertained  the 
opinion  that  duplicity  could  not  exist,  unless  the  matters  contained  in  the 
pleading  were  not  only  set  forth  as  several  and  distinct  defences,  but  were 
actually  valid  as  such,  so  that  either  would  be  a  complete  bar  to  the  action. 
Such  also  appears  to  have  been  the  view  taken  by  Wilde,  J.,  in  the  case  of 
Dunning  v.  Owen,  14  Mass.  157.     If  such  be  the  rule  of  law,  it  must 


ROBINSON     V.     RALEY.  509 

expose  tbe  plaintiiF  to  the  hardship  of  determining  as  to  the  validity  of  two 
distinct  points,  which  may  be  so  pleaded  that  if  issue  be  joined  on  one,  and. 
found  in  his  favour,  it  will  be  contended  that  the  other  is  material;  while 
on  a  demurrer,  an  opposite  language  may  be  held,  and  the  defendant  may 
argue,  that  he  has  in  reality  set  forth  but  one  valid  defence.  On  this  ground 
it  was  held  by  Lord  Denman,  in  Wright  v.  Watts,  3  Q.  B.  89,  that  it  is  not 
essential  that  the  matter  in  a  plea  should  form  a  good  defence,  in  order  to 
render  the  plea  double,  as  containing  another  defence,  but  that  it  is  enough 
if  the  defendant  appear  to  treat  such  matter  as  affording  a  defence.  It  is, 
at  all  events,  settled,  that  matter  ill  pleaded,  if  not  matter  immaterial,  may 
render  a  plea  bad  for  duplicity;  and  that  this  result  will  be  produced,  if 
both  defences  would  separately  be  good  after  verdict,  even  if  incapable  of 
being  sustained  on  demurrer.     Purssord  v.  Peck,  9  M.  &  W.  176. 

On  the  other  hand,  in  Tucker  v.  Ladd,  7  Cowen,  450,  the  court  recog- 
nised the  principle,  that  several  facts  going  to  make  up  one  point,  may  be 
pleaded,  without  vitiating  the  plea,  and  the  same  doctrine  may  be  found 
in  the  cases  of  Patcher  v.  Sprague,  2  Johns.  4G2,  and  Strong  v.  Smith, 
3  Caines,  160.  These  cases  have  been  generally  followed  in  New  York, 
as  well  as  by  the  other  courts  of  this  country;  Russell  v.  Rogers,  15 
Wend.  351;  Bickley  v.  Moore,  1  M'Cord,  464;  Potter  v.  Titcomb,  10 
Maine,  58;  Commonwealth  v.  Curtis,  11  Pick.  134;  Waddams  v.  Burn- 
ham,  1  Tyler,  233;  Torrey  v.  Field,  10  Vermont,  353;  The  State  Bank  v. 
Hinton,  1  Devereux,  397 ;  Jackson  v.  Rundlet,  1  W.  &  M.  381. 

Where  the  defendant  has  recourse  to  a  plea,  bad  for  duplicity,  as  con- 
taining several  points,  any  one  of  which  would  have  been  a  sufficient 
defence,  and  the  plaintiff  does  not  choose  to  demur,  he  must,  at  the  risk  of 
a  demurrer  from  the  other  side,  traverse  all  the  material  points  averred,  for 
even  on  protestation  as  to  the  rest,  and  issue  found  in  his  favour  as  to  one, 
the  court  must  take  those  not  traversed  as  true,  and  give  judgment  thereon 
for  the  defendant.  The  protestation,  of  course,  avails  nothing  in  the  action 
in  which  it  is  employed,  and  merely  serves,  where  the  issue  is  found  for  the 
party  protesting,  to  prevent  an  estoppel  in  a  future  controversy,  between  the 
same  parties.  Richards  v.  Allen,  1  Bibb,  Ken.  R.  189.  Gould  v.  Ray, 
13  Wend.  639.  Nor  is  any  danger  to  be  apprehended  from  a  traverse  of 
both  the  defences  set  forth  in  a  plea  bad  for  duplicity.  Although  this  defect 
cannot  be  taken  advantage  of  on  a  demurrer  by  the  opposite  party,  unless 
special;  Currie  v.  Henry,  2  Johnson,  433  ;  Otis  v.  Blake,  6  Mass  336; 
Decroix  v.  Clark,  18  Id.  363 ;  Lomax  v.  Bailey,  7  Blackford,  599  ;  except 
in  the  case  of  a  plea  in  abatement,  to  which  the  statutes  requiring  the  causes 
of  demurrer  on  points  not  of  substance,  to  be  set  forth,  do  not  apply;  Wal- 
ker V.  Sargeant,  14  Vermont,  247  ;  Esdaile  v.  Lund,  12  M.  &  W.  606  ;  yet 
it  has  been  determined,  that  where  the  duplicity  of  the  replication  consists 
merely  in  putting  in  issue  two  distinct  defences  raised  by  the  plea,  if  the 
defendant  demur,  judgment  will  be  rendered  for  the  plaintiff.  Reynolds  v. 
Blackburn,  7  A.  &  E.  161 ;  Lane  v.  Ridley,  10  Q.  B.  479. 

The  point  decided  in  Robinson  v.  Ralcy,  that  the  whole  of  the  facts  going 
to  make  up  a  single  point  in  the  plea,  may  be  severally  traversed  by  the 
replication,  will  be  found  supported  in  New  York,  by  a  series  of  cases,  ex- 
tending as  far  back  as  Strong  v.  Smith,  3  Caines,  160.  In  that  case  it  was 
determined,  that  where  the  defendant  had  pleaded  to  trespass  quare  clau- 


510  smith's    leading    cases. 

sum  fregit,  seisin  in  fee  in  A.,  and  a  demise  from  him,  the  replication  might 
traverse  both  the  seisin  and  demise.  Subscqncntly,  it  was  held  in  Patcher 
V.  Sprague,  that  the  plaintijf  could  not  sustain  a  demurrer  to  a  replication 
traversing  the  two  distinct  allegations  in  a  plea,  that  certain  horses,  seized 
in  an  attachment,  were  the  property  of  the  party  sued  in  the  attachment, 
and  that  the  defendant  had  taken  them  by  the  command  of  the  sheriff.  The 
same  doctrine  has  since  been  maintained,  in  the  cases  of  M'Clure  v.  Erwin, 
3  Cowen,  213,  and  Tucker  v.  Ladd,  7  Cowcn,  450.  In  the  latter  case,  the 
plea  averred,  in  bar  of  the  plaintiff's  action  for  money  had  and  received, 
that  the  money  therein  claimed,  equitably  belonged  to  a  third  person,  against 
whom  the  defendants,  conjointly  Avith  one  B.,  had  obtained  judgment  in  ano- 
ther suit,  and  that  they  had  since  become  sole  owners  of  the  judgment.  The 
replication  traversed  all  the  facts  thus  set  forth ;  and  on  demurrer  by  the 
defendant,  the  court  held,  that  the  plea  being  single,  as  containing  nothing 
more  than  was  necessary  to  make  up  a  single  point  in  defence,  the  replica- 
tion could  not  be  considered  double,  in  traversing  all  the  facts  essential  to 
that  point.  M'Clure  v.  Erwin,  is  to  the  same  effect,  and  the  defendants 
were  there  permitted,  in  their  rejoinder,  to  traverse  an  averment  in  the 
replication,  that  they  had  notice  of  a  suit,  and  at  the  same  time  to  allege,  in 
avoidance,  that  the  plaintiff  had  not  availed  himself  of  a  good  defence  in 
bar  of  the  judgment  for  which  he  now  sought  to  render  the  defendants 
reponsible.  This  rejoinder  was  held  good,  because  to  make  its  affirmative 
mutter,  that  there  was  a  good  defence  to  the  former  suit,  a  bar  to  the  present 
action,  it  was  necessary  to  traverse  the  averment  in  the  replication  that  the 
defendants  had  received  notice  to  appear,  and  take  defence  themselves.  To 
illustrate  the  principle  here  recognised,  it  may  be  observed,  that  to  a  decla- 
ration on  a  covenant  of  warranty,  averring  eviction  under  a  judgment  in  a 
suit  brought  on  title  paramount,  and  notice  given  at  the  time  to  the  present 
defendant,  to  come  in  and  take  defence,  the  latter  may  plead  ti'aversing  the 
notice,  and  setting  forth  a  good  defence  to  the  suit,  wherein  the  plaintiff 
on  the  warranty  was  evicted,  without  incurring  the  fault  of  duplicity. 

In  the  case  of  Strong  v.  Smith,  already  cited  from  Caines,  as  the  first  of 
the  series  of  authorities  in  New  York,  for  the  principle,  that  several  facts 
may  be  put  in  issue  by  one  traverse,  Livingston,  J.,  placed  the  foundation 
of  the  rule  on  the  ground  assumed  by  Tindal,  C.  J.,  in  defending  the  repli- 
cation in  Bardons  v.  Selby,  supra,  178,  that  if  the  plea  were  single,  a  repli- 
cation, although  traversing  the  whole,  could  not  be  double.  It  must,  how- 
ever, be  observed,  that  in  Bobinson  v.  Baley,  although  there  were  two  points 
in  the  plea,  each  necessary  to  make  a  good  defence,  the  replication  did  not 
attempt  to  traverse  both,  but  merely  the  facts  going  to  make  up  one,  that 
the  defendant  had  not  exceeded  his  commonable  right ;  the  other  point,  that 
such  commonable  right  existed,  being  left  untouched.  De  "Wolf  v.  Bevan, 
13  M.  &  W.  1G9.  On  this  distinction,  between  a  traverse  of  several  facts, 
necessary  to  make  up  one  point,  and  a  traverse  of  several  points,  though 
necessary  to  make  a  good  plea,  the  Supreme  Court  of  New  York,  by  a  judg- 
ment subsequently  affirmed  in  error,  decided,  that  where  the  defendants 
pleaded,  that  the  promissory  note  on  which  suit  was  brought,  was  made  by 
them  jointly  with  B.,  and  that  the  plaintiffs  had  subsequently  released  B. ; 
a  replication  traversing  both  the  joint  making  and  the  release,  was  bad  for 
duplicity.     Tubbs  v.  Caswell,  8  Wend.  129.    The  Chancellor,  in  delivering 


ROBINSON     V.      RALEY.  511 

his  opinion  in  tbc  eourfc  of  errors,  argued  that  the  two  averments  in  the  plea, 
though  both  essential  to  a  valid  defence,  and  constituting  together  but  a 
single  plea,  were  yet  two  distinct  points;  and  as  such,  not  within  the  deci- 
sion in  Robinson  v.  Rale3^  This  doctrine  is  undoubtedly  law,  and  is  sup- 
ported at  once  by  authority,  and  by  the  whole  reason  of  the  system  of  plead- 
ing at  common  law,  which  constantly  tended  to  narrow  the  issue  to  a  single 
point.  De  Wolf  v.  Bevan,  13  M.  &  W.  IGO.  There  is,  however,  some 
difficulty  in  applying  it  in  practice,  from  the  want  of  any  certain  test, 
whereby  to  discriminate  between  those  cases,  in  which  several  averments  go 
to  make  up  a  single  point,  and  may,  therefore,  be  traversed  together,  and 
those  in  which  they  each  constitute  a  distinct  point,  though  all  essential  to 
the  validity  of  the  plea.  Thus  each  of  the  several  facfs  which  were  jointly 
denied  in  Tucker  v.  Ladd,  and  Strong  v.  Smith,  by  one  traverse,  might  have 
been  contended  to  be  as  much  distinct  points,  as  those  which  were  held  to 
have  that  character,  in  the  case  of  Tubbs  v.  Caswell. 

The  case  of  Patcher  v.  Sprague,  is  nearly  the  exact  counterpart  of  Robin- 
son V.  Raley.  As  in  the  English  case,  the  replication  traversed  several  dis- 
tinct facts  in  the  plea,  without  putting  the  whole  in  issue,  and  the  court, 
while  determining  that  it  was  not  bad  for  duplicity,  also  held,  that  in  con- 
cluding to  the  country,  and  not  with  a  verification,  it  was  right  in  principle, 
and  supported  by  authority.  The  rule  was  said  to  be,  that  when  a  traverse 
is  so  direct,  and  of  such  a  character,  that  it  cannot  be  answered  by  the 
opposite  party,  by  matter  in  confession  and  avoidance,  without  a  departure 
from  the  plea,  the  replication  should  conclude  to  the  country;  since  the 
defendant  can  lose  nothing  by  being  compelled  to  add  the  similiter,  and  join 
issue  instead  of  rejoining.  The  doctrine  that  a  traverse  of  part  of  the  plea, 
should  conclude  with  a  verification,  seems  a  relic  of  the  formal  traverse,  with 
an  absque  hoc,  which  is  now  seldom  used.  In  the  case  of  Snyder  v.  Croy, 
2  Johnson,  428,  it  was  determined,  that  even  under  these  circumstances,  if 
the  whole  matter  of  the  plea  be  put  in  issue  by  the  traverse,  a  conclusion  to 
the  country  will  still  be  good. 

U. 


512  smith's   leading   cases. 

[•■^•=250]  =^=MILLER    v.    RACE. 

niL.  31.— GEO.  2. 
[reported   1  BURR.  452.] 

Properly  in  a  bank-note  passes  like  tliat  in  cash,  by  delivery;  and  a  party  takinj^ 
it  bona  fide  and  for  value,  is  entitled  to  retain  it  as  against  a  tbriner  owner  from 
whom  it  has  been  stolen. 


It  was  an  action  of  trover  against  tlie  defendan-t,  upon  a  bank-note,  for 
the  payment  of  twenty-one  pounds  ten  shillings  to  one  William  Finney,  or 
bearer,  on  demand. 

The  cause  came  on  to  be  tried  before  Lord  Mansfield,  at  the  sittings  in 
Trinity  term  last  at  Gruildhall,  London  :  and  upon  the  trial  it  appeared  that 
William  Finney,  being  possessed  of  this  bank-note  on  the  11th  of  December, 
1756,  sent  it  by  the  general  post,  under  cover,  directed  to  one  Bernard 
Odenharty,  at  Chipping  Norton  in  Oxfordshire  j  that  on  the  same  night  the 
mail  was  robbed,  and  the  bank-note  in  question  (amongst  other  notes)  taken 
and  carried  away  by  the  robber;  that  this  bank-note,  on  the  12th  of  the  same 
December,  came  into  the  hands  and  possession  of  the  plaintiff,  for  a  full  and 
valuable  consideration,  and  in  the  usual  course  and  way  of  his  business,  and 
without  any  notice  or  knowledge  of  this  bank-note  being  taken  out  of  the 
mail. 

It  was  admitted  and  agreed  that,  in  the  common  and  known  course  of 
trade,  bank-notes  are  paid  by  and  received  of  the  holder  or  possessor  of 
them  as  cash;  and  that  in  the  usual  way  of  negotiating  bank-notes,  they 
pass  from  one  person  to  another  as  cash,  by  delivery  only,  and  without  any 
further  inquiry  or  evidence  of  title  than  what  arises  from  the  possession.  It 
appeared  that  Mr.  Finney,  having  notice  of  this  robbery  on  the  13  th  of  De- 
cember, applied  to  the  Bank  of  England   "to    stop  the  payment  of  this 

cr-\-\  note;"  *which  was  ordered  accordingly,  upon  Mr.  Finney's  enter- 
L  "'    -'  ing  into  proper  security  <Ho  indemnify  the  bank." 

Some  little  time  after  this  the  plaintiff  applied  to  the  bank  for  the  pay- 
ment of  this  note ;  and,  for  that  purpose,  delivered  the  note  to  the  defen- 
dant, who  is  a  clerk  in  the  bank  :  but  the  defendant  refused  either  to  pay 
the  note,  or  to  re-deliver  it  to  the  plaintiff.  Upon  which  this  action  was 
brought  against  the  defendant. 

The  jwry  found  a  verdict  for  the  plaintiff,  and  the  sum  of  21^.  10s. 
damages ;  subject,  nevertheless,  to  the  opinion  of  this  court  upon  this'  ques- 
tion— <<  Whether,  under  the  circumstances  of  this  case,  the  plaintiff  had  a 
sufficient  property  in  this  bank-note  to  entitle  him  to  recover  in  the  present 
action  ?" 

JMr.   Williams  was  beginning  on  behalf  of  the  plaintiff; — 

But  Lord  Mansjidd  said,  <<  That  as  the  objection  came  from  the  side  of 


MILLER     V.     RACE.  513 

the  defendant,  it  was  rather  more  proper  for  the  defendant's  counsel  to  state 
and  urge  their  objection." 

Sir  Richard  Lloyd  for  the  defendant. 

The  present  action  is  brought,  not  for  the  money  due  upon  the  note;  but 
for  the  note  itself,  the  paper,  the  evidence  of  the  debt.  So  that  the  right  to 
the  money  is  not  the  present  question  :  the  note  is  only  an  evidence  of  the 
money's  being  due  to  him  as  bearer. 

The  note  must  either  come  to  the  plaintiff  by  assignment,  or  must  be 
considered  as  if  the  bank  gave  a  fresh,  separate,  and  distinct  note  to  each 
bearer.  Now  the  plaintiff  can  have  no  right  by  the  assignment  of  a  robber. 
And  the  bank  cannot  be  considered  as  giving  a  new  note  to  each  bearer  : 
though  each  bearer  may  be  considered  as  having  obtained  from  the  bank  a 
new  promise. 

I  do  not  say  whether  the  bank  can  or  cannot  stop  payment :  that  is  ano- 
ther question.     But  the  note  is  only  an  instrument  of  recovery. 

Now  this  note,  or  these  goods  (as  I  may  call  it),  was  the  property  of  Mr. 
Finney,  who  paid  in  the  money :  he  is  the  real  owner.  It  is  like  a  medal 
wliich  might  entitle  a  man  to  payment  of  money,  or  to  any  other  advantage. 
And  it  is  by  Mr.  Finney's  authority  and  request  that  Mr.  Race  detained  it. 

It  may  be  objected,  "  that  this  note  is  to  be  considered  *as  cash  r-^.i)Pin^ 
in  the  usual  course  of  trade."  But  still  the  course  of  trade  is  not  at  L  "  J 
all  affected  by  the  present  question,  about  the  right  to  the  note.  A  differ- 
ent species  of  action  must  be  brought  for  the  note  from  what  must  bo 
brought  against  the  bank  for  the  money.  And  this  man  has  elected  to  bring 
trover  for  the  note  itself,  as  owner  of  the  note  ;  and  not  to  bring  his  action 
against  the  bank,  for  the  money.  In  which  action  of  trover  property  can- 
not be  proved  in  the  plaintiff,  for  a  special  proprietor  can  have  no  right 
against  the  true  owner. 

The  cases  that  may  affect  the  present  are  1  Salk.  120,  M. ;  10  W.  3. ; 
Anonymous,  coram  Holt,  Chief  Justice,  at  Nisi  Prius  at  Guildhall.  There 
Lord  Chief  Justice  Holt  held,  "  That  the  right  owner  of  a  bank-bill,  who 
lost  it,  might  have  trover  against  a  stranger  who  found  it :  but  not  against 
the  person  to  whom  the  finder  transferred  it  for  a  valuable  consideration,  by 
reason  of  the  course  of  trade,  which  creates  a  property  in  the  assignee  or 
bearer."  1  Lord  Raymond,  738,  S.  C,  in  which  case  the  note  was  paid 
away  in  the  course  of  trade  :  but  this  remains  in  the  man's  hands,  and  is 
not  come  into  the  course  of  trade.  H.  12  W.  3,  B.  R.  j  1  Salk.  283,  28+, 
Ford  v.  Hopkins,  per  Holt,  Chief  Justice  at  Nisi  Prius  at  Guildhall.  <*  If 
bank-notes,  exchequer-notes,  or  million-lottery  tickets,  or  the  like,  are  stolen 
or  lost,  the  owner  has  such  an  interest  or  property  in  them  as  to  bring  an 
action,  into  whatsoever  hands  they  are  come.  Money  or  cash  is  not  to  bo 
distinguished  :  but  these  notes  or  bills  are  distinguishable,  and  cannot  be 
reckoned  as  cash ;  and  they  have  distinct  marks  and  numbers  on  them." 
Therefore  the  true  owner  may  seize  these  notes  wherever  he  finds  them,  if 
not  passed  away  in  the  course  of  trade. 

1  Strange  505.  H.  8  G,  1.  In  Middlesex,  coram  Pratt,  Chief  Justice, 
Armory  'v.  Delarairie — A  chimney-sweeper's  boy  found  a  jewel.  It  was 
ruled,  "that  the  finder  has  such  a  property  as  will  enable  him  to  keep  it 
against  all  but  the  rightful  owner  ;  and,  consequently,  may  maintain  trover." 

This  note  is  just  like  any  other  piece  of  property,  until  passed  away  in 

Vol,  I.— 33 


514  smith's    leading   cases. 

the  course  of  trade.     And  here  the  defendant  acted  as  agent  to  the  true 
owner. 

Mr.  Wil/i(i7ns  contra,  for  the  phiintiff. 
j-^,-,r  q-i       *The  holder  of  this  bank-note,  upon  a  valuable  consideration,  has 
L  "     -^  a  right  to  it,  even  against  the  true  owner. 

1st.  The  circulation  of  these  notes  vests  a  property  in  the  holder,  who 
comes  to  the  possession  of  it  upon  a  valuable  consideration. 

2ndly.  This  is  of  vast  consequence  to  trade  and  commerce;  and  they 
would  be  greatly  incommoded  if  it  were  otherwise. 

Srdly.  This  falls  within  the  reason  of  a  sale  in  market-overt ;  and  ought 
to  be  determined  upon  the  same  principle. 

First — He  put  several  cases  where  the  usage,  course,  and  convenience  of 
trade,  made  the  law,  and  sometimes  even  against  an  act  of  parliament,  3 
Keb.  444,  Stanley  v.  Ayles,  per  Hale,  Chief  Justice,  at  Guildhall.  2 
Strange,  1000,  Lumley  v.  Palmer :  where  a  parole  acceptance  of  a  bill  of 
exchange  was  holden  sufficient  against  the  acceptor,  1  Salk.  23. 

Secondly. — This  paper  credit  has  been  always,  and  with  great  reason, 
favoured  and  encouraged,  2  Strange,  946,  Jenys  v.  Fawler  et  al. 

The  usage  of  these  notes  is,  "  that  they  pass  by  delivery  only;  and  are 
considered  as  current  cash ;  and  the  possession  always  carries  with  it  the 
property."     1  Salk.  126,  pi.  5,  is  in  point. 

A  particular  mischief  is  rather  to  be  permitted  than  a  general  inconve- 
nience incurred.  And  Mr.  Finney,  who  was  robbed  of  this  note,  was  guilty 
of  some  laches  in  not  preventing  it. 

Upon  Sir  Richard  Lloyd's  argument,  a  holder  of  a  note  might  suffer  the 
loss  of  it  for  want  of  title  against  a  true  owner ;  even  if  there  was  a  chasm 
in  the  transfers  of  it  through  one  only  out  of  five  hundred  hands. 

Thirdly — This  is  to  be  considered  upon  the  same  foot  as  a  sale  in  market- 
overt. 

2  Inst.  713.     "A  sale  in  market-overt  binds  those  that  had  a  right." 

But  it  is  objected  by  Sir  Richard,  "  that  there  is  a  substantial  difference 
between  a  right  to  the  note,  and  a  right  to  the  money."  But  I  say  the 
right  to  the  money  will  attract  to  it  a  right  to  the  paper.  Our  right  is  not 
r*9^4.1  ^^  assignment,  but  by  law,  by  the  usage  and  custom  of  trade.  *I 
L  -J  do  not  contend  that  the  robber,  or  even  the  finder  of  a  note,  has  a 
right  to  the  note ;  but,  after  circulation,  the  holder  upon  a  valuable  consi- 
deration has  a  right. 

We  have  a  property  in  this  note  :  and  have  recovered  the  value  against 
the  withholder  of  it.  It  is  not  material  what  action  we  could  have  brought 
against  the  bank. 

Then  he  answered  Sir  Richard  Lloyd's  cases;  and  agreed,  that  the  true 
owner  might  pursue  his  property,  where  it  came  into  the  hands  of  another, 
without  a  valuable  consideration,  or  not  in  the  course  of  trade  :  which  is  all 
that  Lord  Chief  Justice  Holt  said  in  1  Salk.  284. 

As  to  1  Strange,  505,  he  agreed  that  the  finder  has  the  property  against 
all  but  the  rightful  owner  :  not  against  him. 

Sir  liichurd  Lloyd  in  reply  : —  * 

I  agree  that  the  holder  of  the  note  has  a  special  property;  but  it  does 
not  follow  that  he  can  maintain  trover  for  it  against  the  true  owner. 

This  is  not  only  without,  but  against  the  consent  of  the  owner. 


MILLER     V.     RACE.  515 

Supposing  tliis  note  to  be  a  sort  of  mercantile  casli ;  yet  it  has  an  ear- 
mark, by  which  it  maybe  distinguished;  therefore  trover  will  lie  for  it. 
And  so  is  the  case  of  Ford  v.  Hopkins. 

And  you  may  recover  a  thing  stolen  from  a  merchant,  as  well  as  a  thing 
stolen  from  another  man.  And  this  note  is  a  mere  piece  of  paper  :  it  may 
be  as  well  stopped  as  any  other  sort  of  mercantile  cash  (as,  for  instance,  a 
policy  which  has  been  stolen.)  And  this  has  not  been  passed  away  in  trade: 
but  remains  in  the  hands  of  the  true  owner.  And  therefore  it  does  not  sig- 
nify in  what  manner  they  are  passed  away,  when  they  are  passed  away;  for 
this  was  not  passed  away.  Here,  the  true  owner,  or  his  servant  (which  is  the 
same  thing,)  detains  it.  And  surely  robbery  does  not  divest  the  property. 
This  is  not  like  goods  sold  in  market-overt:  nor  does  it  pass  in  the  way 
of  a  market-overt ;  nor  is  it  within  the  reason  of  a  market-overt.  Suppose 
it  was  a  watch  stolen :  the  owner  may  seize  it,  though  he  finds  it  in  a 
market-overt,  before  it  is  sold  there.  But  there  is  no  market-overt  for  bank- 
notes. 

*I  deny  the  holder's  (merely  as  holder)  having  a  right  to  the  r^.-,rK-i 
note,  against  the  true  owner;  and  I  deny  that  the  possession  gives  L  "  J 
a  right  to  the  note. 

Upon  this  argument  on  Friday  last,  Lord  Mansfield  then  said,  that  Sir 
Richard  Lloyd  had  argued  it  so  ingeniously,  that  (^though  he  had  no  doubt 
about  the  matter)  it  might  be  proper  to  look  into  the  cases  he  had  cited,  in 
order  to  give  a  proper  answer  to  them;  and  therefore  the  court  deferred 
giving  their  opinion  to  this  day.  But  at  the  same  time  Lord  Mansfield  said 
he  would  not  wish  to  have  it  understood  in  the  city  that  the  court  had  any 
doubt  about  the  point. 

Lord  Mauffield  now  delivered  the  resolution  of  the  court. 
After  stating  the  case  at  large,  he  declared,  that,  at  the  trial  he  had  no 
sort  of  doubt  that  this  action  was  well  brought,  and  would  lie  against  the 
defendant  in  the  present  case ;  upon  the  general  course  of  business,  and 
from  the  consequences  to  trade  and  commerce  :  which  would  be  much  incom- 
moded by  a  contrary  determination. 

It  has  been  very  ingeniously  argued  by  Sir  Richard  Lloyd,  for  the  defend- 
ant. But  the  whole  fallacy  of  the  argument  turns  upon  comparing  bank- 
notes to  what  they  do  not  resemble,  and  what  they  ought  not  to  be  compared 
to,  viz.,  to  goods,  or  to  securities,  or  documents  for  debts. 

Now,  they  are  not  goods,  not  securities,  nor  documents  for  debts,  nor  are 
so  esteemed  :  but  are  treated  as  money,  as  cash,  in  the  ordinary  course  and 
transaction  of  business,  by  the  general  consent  of  mankind;  which  gives 
them  the  credit  and  currency  of  money,  to  all  intents  and  purposes.  They 
are  as  much  money  as  guineas  themselves  are;  or  any  other  current  coin, 
that  is  used  in  common  payments,  as  money  or  cash. 

They  pass  by  a  will,  which  bequeaths  all  the  testator's  money  or  cash; 
and  are  never  considered  as  securities  for  money,  but  as  money  itself.  Upon 
Lord  Ailesbury's  will,  900^.  in  bank-notes  was  considered  as  cash.  On  p:iy- 
ment  of  them,  whrniever  a  receipt  is  required,  the  receipts  are  always  given 
as  for  money,  not  as  for  securities  or  notes. 

So,  on  bankruptcies,  they  cannot  be  followed  as  identical  *and  p^orlpi 
distinguishable  from  money;  but  are  always  considered  as  money  or  L  *"  -• 
cash. 


516  smith's  leading   cases. 

'Tis  pity  that  reporters  sometimes  catch  at  quaint  expressions  that  may 
happen  to  be  dropped  at  the  bar  or  bench;  and  mistake  their  meaning.  It 
has  been  quaintly  said,  "that  the  reason  why  money  cannot  be  followed  is, 
because  it  has  no  car-mark;"  but  this  is  not  true.  The  true  reason  is,  upon 
account  oj  the  currency  of  it:  it  cannot  he  recovered  after  it  has  passed  in 
currency.  So  in  case  of  money  stolen,  the  true  owner  cannot  recover  it; 
after  it  has  been  jjaid  away  fairly  and  honestly  upon  a  valuable  and  bona 
fide  consideration:  but  before  money  has  passed  in  currency^  an  action  may 
he  hrouijhtfor  the  money  itself  There  was  a  case  in  1  Gr.  1,  at  the  sittings, 
Thomas  v.  Whip,  before  Lord  Macclesfield;  which  was  an  action  upon 
assumpsit,  by  an  administrator  against  the  defendant,  for  money  had  and 
received  to  his  use.  The  defendant  was  nurse  to  the  intestate  during  his 
sickness;  and  being  alone,  conveyed  away  the  money.  And  Lord  Maccles- 
field held  that  the  action  lay.  Now  this  must  bo  esteemed  a  finding  at 
least. 

Apply  this  to  the  case  of  a  bank-note.  An  action  may  lie  against  ihe 
finder,  it  is  true;  (and  it  is  not  at  all  denied:)  but  not  after  it  has  been  paid 
away  in  currency.  And  this  point  has  been  determined  even  in  the  infancy 
of  bank-notes:  for  1  Salk.  126,  M.,  10  W.  3,  at  Nisi  Prius,  is  in  point. 
And  Lord  Chief  Justice  Holt  there  says,  that  it  is  "  by  reason  of  the  course 
of  trade;  which  creates  a  property  in  the  assignee  or  bearer."  (And  "the 
bearer"  is  a  more  proper  expression  than  assignee). 

Here  an  innkeeper  took  it,  bona  fide,  in  his  business,  from  a  person  who 
made  the  appearance  of  a  gentleman.  Here  is  no  pretence  or  suspicion  of 
collusion  with  the  robber  :  for  this  matter  was  strictly  inquired  and  examined 
into  at  the  trial;  and  is  so  stated  in  the  case,  "  that  he  took  it  for  a  full 
and  valuable  consideration,  in  the  usual  course  of  business."  Indeed,  if 
there  had  been  any  collusion,  or  any  circumstances  of  unfair  dealing,  the 
case  had  been  much  otherwise.  If  it  had  been  a  note  for  1000^.  it  might 
have  been  suspicious :  but  this  was  a  small  note  for  2U.  10s.  only  :  and 
money  given  in  exchange  for  it. 

Another  case  cited  was  a  loose  note  in  1  Ld.  Raym.  738,  ruled  by  Lord 
r*9F>7"l  ^^^^^  Justice  Holt  at  Guildhall,  in  1G98;  which  ^^'proves  nothing 
L  J  for  the  defendant's  side  of  the  question  ;  but  it  is  exactly  agreeable 
to  what  is  laid  down  by  my  Lord  Chief  Justice  Holt,  in  the  case  I  have  just 
mentioned.  The  action  did  not  lie  against  the  assignee  of  the  bank-bill ; 
because  he  had  it  for  valuable  consideration. 

lu  that  case  he  had  it  from  the  person  who  found  it;  but  the  action  did 
not  lie  against  him,  because  he  took  it  in  the  course  of  currency ;  and  there- 
fore it  could  not  be  followed  in  his  hands.  It  never  shall  be  followed  into 
the  hands  of  a  person  who  bona  fide  took  it  in  the  course  of  currency,  and 
in  the  way  of  his  business. 

The  case  of  Ford  v.  Hopkins  was  also  cited:  which  was  in  Hil.  12  W. 
3,  coram  Holt,  Chief  Justice,  at  Nisi  Prius,  at  Guildhall ;  and  was  an  action 
of  trover  for  million-lottery  tickets.  But  this  must  bo  a  very  incorrect 
report  of  that  case:  it  is  impossible  that  it  can  be  a  true  representation  of 
what  Lord  Chief  Justice  Holt  said.  It  represents  him  as  speaking  of  bank- 
notes, exchequer-notes,  and  million-lottery  tickets,  as  like  to  each  other. 
Now  no  two  things  can  be  more  unlike  to  each  other  than  a  lottery-ticket  and 
a  bank-note.     Lottery-tickets  are  identical  and  specific  :  specific  actions  lie 


MILLER    V.     RACE.  517 

for  them.  Tbey  may  prove  extremely  unequal  in  value :  one  may  be  a 
prize;  another  a  blank.  Land  is  not  more  specific  than  lottery-tickets  are. 
It  is  there  said,  "  that  the  delivery  of  the  plaintiiF's  tickets  to  the  defendant, 
as  that  case  was,  was  no  change  of  property."  And  most  clearly  it  was  no 
change  of  the  property  :  so  far  the  case  is  right.  But  it  is  here  urged 
as  a  proof  ''that  the  true  owner  may  follow  a  stolen  bank-note,  into  what 
bands  soever  it  shall  come." 

Now  the  whole  of  that  case  turns  upon  the  throwing  in  bank-notes^  as 
being  like  to  lottery-tickets. 

But  Lord  Chief  Justice  Holt  could  never  say,  ''that  an  action  would  lie 
against  the  person  who,  for  a  valuable  consideration,  had  received  a  bank- 
note which  had  been  stolen  or  lost,  and  bona  fide  paid  to  him  ;"  even  though 
the  action  was  brought  by  the  true  owner  :  because  he  had  determined  other- 
wise but  two  years  before;  and  because  bank-notes  are  not  like  lottery- 
tickets,  but  money. 

The  person  who  took  down  this  case,  certainly  misunderstood  Lord  Chief 
Justice  Holt,  or  mistook  his  reasons.  For  this  reasoning  would  prove,  (if  it 
was  true,  as  the  reporter  ^represents  it,)  that  if  a  man  paid  to  a  f.^r>rQ-] 
goldsmith  500^.  in  bank-notes,  the  goldsmith  could  never  pay  them  ^  "  -■ 
away. 

A  bank-note  is  constantly  and  universally,  both  at  home  and  abroad, 
treated  as  money,  as  cash  ;  and  paid  and  received  as  cash ;  and  it  is  neces- 
sary, for  the  purposes  of  commerce,  that  their  currency  should  be  established 
and  secured. 

There  was  a  case  in  the  Court  of  Chancery,  on  some  of  Mr.  Child's 
notes,  payable  to  the  person  to  whom  they  were  given,  or  bearer.  The  notes 
had  been  lost  or  destroyed  many  years.  Mr.  Child  was  ready  to  pay  them 
to  the  widow  and  administratrix  of  the  person  to  whom  they  were  made 
payable;  upon  her  given  bond,  with  two  responsible  sureties,  (as  is  the 
custom  in  such  cases,)  to  indemnify  him  against  the  bearer,  if  the  notes 
should  ever  be  demanded.  The  administratrix  brought  a  bill;  which  was 
dismissed,  because  she  either  could  not,  or  would  not,  give  the  security 
required.  No  dispute  ought  to  be  made  with  the  bearer  of  a  cash-note ;  in 
regard  to  commerce,  and  for  the  sake  of  the  credit  of  these  notes  :  though  it 
may  be  both  reasonable  and  customary  to  stay  the  payment,  till  inquiry  can 
be  made  whether  the  bearer  of  the  note  came  by  it  fairly  or  not. 

Lord  Manafield  declared  that  the  court  were  all  of  the  same  opinion  for 
the  plaintiff;  and  that  Mr.  Justice  Wilmot  concurred. 

Rule — That  the  postca  be  delivered  to  the  plaintiff. 


The  p-oiv^rnl  rule  of  the  law  of  Enw-  ment",  the  property  in  which  will  pass, 

laiul  is,  that  no  inan  can  acquire  a  title  like  that  in  coin,  along'  with  the  posses- 

td  ;j  cliatte!  pers^onal  from  any  one  who  sion,  when  they  have  been  put  into  that 

has  himself  no  title  to  it,  except  only  by  stale  in   which,  according  to  the  usage 

sale  in  market-overt.  Peer  v.  Humphrey,  and  custom  of  trade,  they  are  transfer- 

2  Adol.  &  Ell. -59.3.    The  case  of  Miller  red  from  one  man  to  another  by  delivery. 

V.  Race,  however,  has  established  an  ex-  This  was  again  determined  in  Grant  v. 

ception  in  the  case  of  negotiable  instni-  Vaughan,  3  Burr.  1516,  in  the  case  of  a 


518 


SMITHS     LEADING     CASES. 


draft  by  a  merchant  on  his  banker ;  and  - 
in  Gorgier  v.  Mieviilo,  3  B.  &  C.  45,  in 
the  case  of  a  bond  g-jven  by  the  King  of 
Prussia,  by  which  he  declared  liimself 
and  his  successors  bound  lo  every  person 
who  should  for  the  time  being  be  the 
fiolder  of  the  bond,  and  which  was  proved 
to  be  saleable  in  the  market,  and  (with 
other  bonds  of  a  like  description)  to  pass 
from  hand  to  hand  at  a  variable  price. 
See  Lirkbarrow  v.  Mason,  5  T.  R.  683, 
post,  3-6,  respecting  bills  of  lading; 
Zwinger  v.  ISaniuda,  7  Taunt.  265; 
Lucas  V.  Dorrein,  Ibid.  27S,  as  to  dock 
warrants.  [Brandao  v.  Barnett,  in  the 
Common  Fleas,  1  M.  &  Gr.  909  ;  2  Scott, 
N.  R.  96,  in  the  Exchequer  Chamber,  6 
M.  &  Gr.  630 ;  7  Scott,  N.  R.  30,  in  the 
House  of  Lords,  12  CI.  &  Fin.  787,  as 
to  E.xciiequer  Bills;  Partridge  v.  Bank 
of  England,  9  Q,.  B.  396,  as  to  dividend 
\varrants.]  See  also  Lang  v.  Smyth,  7 
Bing.  2'^4,  the  facts  of  which  will  pre- 
sently be  stated.  In  the  Attorney-Gen- 
eral V.  Bouwens,  4  AJ.  &  VV.  171,  the 
forms  of  several  foreign  securities  accus- 
tomably  transferable  like  cash  in  this 
country  will  be  found. 

A  negotiable  instrument  being  clearly 
transferable  by  any  person  holding  it,  so 
as  by  delivery  thereof  to  give  a  good 
title  to  any  person  honestly  acquiring 
r*9''Ql  *'*'"  P®*"  ■'^'^'^ott,  C.  J.,  3  B.  &  C. 
L  '^'  -■  47,  the  next  question  is,  what  in- 
struments may  with  propriety  be  termed 
negotiable.  And  to  this  it  may  be  an- 
swered. That  whenever  an  instrument 
is  such  that  the  legal  right  to  the  pro- 
perty secured  thereby  passes  from  one 
man  to  another  by  the  delivery  thereof, 
it  is,  properly  speaking,  a  negotiable  in- 
strument, and  the  title  to  it  will  vest  in 
any  person  taking  it  bona  fide,  and  for 
value,  whatever  may  be  the  defects  in 
the  title  of  the  person  transferring  it  lo 
him.  An  instruuient  is  called  negotiable 
when  the  legal  right  to  the  property  se- 
cured by  it  passes  by  its  delivery,  be- 
cause, allliough  an  instrument  may  be 
saleable  in  the  market,  and  treated  in 
many  respects  like  cash,  yet,  if  by  a 
transfer  of  it  nothing  pass  but  a  right  to 
sue  on  it  in  the  name  of  the  transferor 
or  original  party  to  it,  such  an  instru- 
ment IS  not  properly  speaking  negotiable. 
Thus,  in  Giynn  v.  Baker,  13  East,  509, 
an  India  bond  was  held  not  to  be  a  ne- 
gotiable instrument,  (there  being  then 
no  act  equivalent  to  51  G.  3,  c.  64,  s.  4, 
which  afterwards  rendered  India  bonds 
negotiable.)     In  that  case   the  plaintiff 


and  the  defendant  had  lodged  their  re- 
spective India  bonds  with  the  same 
bankers,  wiio  improperly  sold  the  defen- 
dant's bonds,  and  on  his  demand  deliver- 
ed to  him  those  of  the  plaintiff  lo  the 
same  amount,  and  payable  lo  the  same 
obligee,  viz,  VV.  G.  Sibley;  the  defend- 
ant, not  knowing  that  the  bonds  handed 
to  him  were  not  his  own,  afterwards 
sold  them,  and  received  the  proceeds.  It 
was  held  that  the  plaintiff  might  recover 
the  amount  from  him  in  an  action  for 
money  had  and  received  ;  see  William- 
son v.  Thompson,  16  Ves.  jun.  443.  In 
Gorgier  v.  Mieville  this  case  was  cited, 
and  relied  on  as  an  authority  against  the 
negotiability  of  the  King  of  Prussia's 
bond  ;  but  Abbott,  C.  J.,  said  that  the 
case  was  distinguishable  from  Glynn  v. 
Baker.  "There,"  said  his  lordship,  "it 
did  not  appear  that  India  bonds  were  ne- 
gotiable, and  no  other  person  could  have 
sued  on  them  but  the  obligee.  Here,  on 
the  contrary,  the  bond  is  payable  to  the 
bearer,  and  it  was  proved  at  the  trial 
that  bonds  of  this  description  were  nego- 
tiated like  Exchequer  Bills."  It  may 
therefore  be  laid  down  as  a  safe  rule 
that  where  an  instrument  is  by  tie  cus- 
tom of  trade  transferable,  like  cash,  by 
delivery,  and  is  also  capable  oi'  being 
sued  upon  by  the  person  holding  it  pro 
tempore,  there  it  is  entitled  to  the  name 
of  a  negotiable  instrument,  and  the  pro- 
perty in  it  passes  to  a  bona  fide  trans- 
feree for  value,  though  the  transfer  may 
not  have  taken  place  in  market-overt. 
But  that  if  either  of  the  above  requisites 
be  wanting,  i.  e.,  if  it  be  either  not  ac- 
customably  translerable,  or,  though  it  be 
accustomably  transferable,  yet,  if  its  na- 
ture be  such  as  to  render  it  incapable  of 
being  put  in  suit  by  the  party  holding  it 
pro  tempore,  it  is  not  a  negotiable  in- 
strument, nor  will  delivery  of  it  pass  the 
properly  of  it  lo  a  vendee,  however  bona 
fide,  if  the  transferor  hiinseif  have  not  a 
good  title  to  it,  and  the  transfer  be  made 
out  of  market  overt.  To  illustrate  these 
propositions,  bills  and  notes  payable  to 
bearer,  or  payable  to  order  and  indorsed 
in  blank,  are  beyond  all  dniibl  negotia- 
ble instruments  in  the  full  sense  of  those 
words.  Solomons  v.  Bank  of  England, 
13  East,  135;  Grant  v.  Vaughan,3  Burr. 
1516;  Collins  v.  Martin,  3  B.  &P.649; 
Peacock  v.  Rhodes,  Dougl.  636;  VVookey 
V.  Pole,  4  B.  fii.  A.  1  ;  tor  they  are  both 
accustomably  transferable  like  ca.-h,  and 
are  also  capable  of  being  sued  on  by  the 
bolder  pro  tempore.     But  if  such  a  bill 


MILLER    V.     RACE. 


519 


be  specially  indorsed,  its  norrotiability  is 
at  an  end,  for  it  becomes  thereby  inca- 
pable of  being  sued  upon  by  any  one  ex- 
cept the  special  indorsee.  Si^oiirney  v. 
Lloyd,  8  B.  &  C.  622,  5  Bingh.  525 ; 
Archer  v.  Bank  of  England,  Dougl.639; 
Treuttel  v.  Barandon,  8  Taunt.  lUO.  In 
Glynn  v.  Baker,  the  court  appears  to 
have  been  of  opinion  that  even  had  the 
jury  expressly  found  the  India  bond  to 
be  negotiable,  and  to  pass  accustomabiy 
by  delivery,  it  would  not  have  been  so 
in  contemplation  of  law.  "If  it  be 
meant,"  said  Lord  Ellenborough,  "to 
liken  this  to  the  case  of  bankers'  notes, 
in  Miller  v.  Race,  as  having  acquired  in 
fact  a  negotiable  quality,  and  being  re- 
ceived as  cash,  or  to  ordnance  deben- 
tures, notes,  bills,  and  other  securities 
of  the  same  description,  which  are  cir- 
culated daily  in  the  money  market,  the 
fact  ofsuch  negotiability  should  be  stated. 
But  supposing  it  loere  so  stated,  hoio 
could  a  right  of  action  be  made  to  pass 


[^260] 


*on   these  securities  by  such  a 


practice  to  the  holder  of  them, 
where  by  laio  no  such  right  passes  I 
There  must  always  be  that  impediment 
existing  to  the  legal  negotiability  of  such 
instruments  which  distinguishes  them 
from  bills  of  exchange,  and  securities  of 
that  nature,  in  which  the  legal  interest 
passes,  under  the  law  merchant,  by 
indorsement  and  delivery  to  another." 
Taddy,  Serjeant,  cited  a  case  of  Mac- 
lish  V.  Ekins,  to  the  same  point,  a 
short  note  of  which  is  to  be  found,  13 
East,  515.  See  also  Taylor  v.  Kimer,  3 
B.  &.  Ad.  321,  and  Taylor  v.  Trueman, 
1  iM.  &.  M.  453 ;  whicii  were,  however, 
decided  on  the  construction  of  St.  6  G. 
4,  c.  94,  [the  conclusion  of  Baron  Parke's 
judgment  in  Hibblewhite  v.  M'Morine, 
(j  Al.  &  \V.  216,  his  remarks  in  Daly  v. 
Thompson,  10  M.  &  VV.  318],  and  the 
expressions  of  AshursI,  J.,  2  T.  R.  71, 
and  post.  It  is  submitted,  therefore,  as 
at  least  probable  that  if  the  right  of  suing 
on  an  instrument  should  not  appear  J/j90?i 
the  face  of  it  to  be  extended  beyond  one 
particular  individual,  no  usage  of  trade, 
however  extensive,  would  be  allowed  by 
the  courts  (at  least  in  the  case  of  an 
English  instrument)  to  confer  upon  it 
tlie  character  and  incidents  of  negotia- 
bility. [Accord.  Partridge  v.  Bank  of 
England,  9  Q.  B.  396,  which  see  as  to 
dividend  warrants.]  It  is,  however,  riglit 
to  mention  that  there  is  a  case  of  Ren- 
teria  v.  Riuling,  1  M.  &  M.  511,  which 
seems  at  first  sight  to  militate  ajjainst 


this  doctrine.  In  that  case  the  plaintiff 
signed  a  bill  of  lading  for  goods  shipped 
in  Spain,  by  Bernardo  Echeluce,  to  be 
delivered  in  London,  to  Messrs.  O'Brien, 
on  being  paid  freight,  primage,  and  aver- 
age :  there  was  no  mention  of  assigns  in 
the  bill  of  lading.  The  defendants  hav- 
ing received  the  goods,  and  being  sued 
for  fi-eight.  Brougham  argued  that  the 
bill  not  being  assignable  by  indorsement, 
they  were  not  liable.  A  witness  was 
then  called,  who  proved  that  bills  of  lad- 
ing from  Spain  were  frequently  in  the 
same  form,  and  were  nevertheless  treat- 
ed as  assignable  by  indorsement.  Lord 
Tenterden,  after  referring  to  the  Trea- 
tise on  Shipping,  page  286,  5th  edition, 
and  reading  "  for  if  a  person  accept  any- 
thing which  he  knows  to  be  subject  to  a 
duty  or  charge,  it  is  natural  to  conclude 
he  means  to  take  the  duty  or  charge  on 
himself,  and  the  law  may  very  well  im- 
ply a  promise  to  perform  what  he  so 
takes  upon  himself,"  said,  "this  seems 
to  me  to  be  the  correct  principle,  and  the 
omission  of  the  words  or  their  assigns 
makes  no  difference."  Now  if  Renteria 
V.  Ruding  be  taken  to  prove  that  a  bill 
of  lading  omitting  the  words  assigns  is 
nevertlieless  assignable,  so  as  to  pass  the 
legal  right  in  the  goods  to  the  indorsee, 
it  certainly  does  appear  to  militate 
against  the  doctrine  above  contended  for, 
and  seems  also  contrary  to  the  opinion 
expressed  by  Ashurst,  J.,  in  Lickbarrow 
V.  Mason,  2  T.  R.  71 ;  where  his  lord- 
ship says,  "The  assignee  of  a  bill  of  lad- 
ing trusts  to  the  indorsement;  the  in- 
strument is  in  its  nature  transferable  in 
this  respect;  therefore,  it  is  similar  to 
the  case  of  a  bill  of  exchange.  If  the 
consignor  had  intended  to  restrain  Hie 
negotiability  of  it,  he  should  have  con- 
fined the  delivery  of  the  goods  to  the 
vendee  only,  but  he  has  made  it  an  in- 
dorsable  instrument.''''  But  if  Renteria 
V.  Ruding  be  taken  only  to  show  that 
the  delivery  up  of  the  goods  to  the  de- 
fendants was  a  sufficient  consideration 
to  support  a  promise  on  their  part  to  pay 
the  freight,  &c.,and  that  such  a  promise 
might  be  implied  from  their  knowledge 
that  the  goods  they  accepted  were  sub- 
ject to  tiiose  charges,  the  case  will 
be  distinguis!i;ible,  and  will  be  similar 
to  that  of  Williams  v.  Leaper,  3  Burr. 
1886,  where  the  defendant,  a  broker, 
being  about  to  sell  the  goods  of  A., 
for  the  benefit  of  his  creditors,  the 
plaintiff",  A  's  landlord,  came  to  destrain 
them  ;   upon  which  the  broker  promised 


520 


smith's   leading   cases. 


to  pay  the  rent,  if  the  landlord  would 
permit  him  to  retain  and  sell  the  goods; 
the  consideration  was  held  sufficient,  and 
tiie  promise  bindinnr.  In  Williams  v. 
Leaper,  therefore,  the  landlord's  relin- 
quishment of  his  lien  on  the  goods  for 
rent  was  a  sufficient  consideration  to 
supiKjrt  a  promise  by  a  party  not  being 
the  owner  of  the  goods,  but  who  obtained 
possession  of  them  by  the  landlord's  re- 
iinqui.-hmentofhislien,  topay  the  charge 
upon  them  for  rent:  and  pari  ratione,  in 
Rentrria  v.  Ruding,  the  master's  relin- 
quishment of  his  lien  on  the  goods  for 
freight  was  a  sufficient  consideration  to 
support  a  promise  by  the  defendants,  who 
obtained  possession  of  the  goods  by  the 
Ciptain's  relinquishment  of  his  lien,  to 
pay  the  charge  upon  them  for  freight; 
and  the  passage  of  his  work  referred  to 
by  Lord  Tenterden  shews  that  such  a 
promise  may  be  implied;  and  though 
Scaife  v,  Tobin,  3  B.  &  Ad.  523, *( which, 
r*orii  however,  is  subsequent  to  Ren- 
^  "  ^  teria  v.  Ruding,)  decides  that  a 
person  who  is  not  the  owner  of  goods, 
does  not  by  the  mere  receipt  of  them, 
with  the  knowledge  that  they  were  sub- 
ject to  a  charge,  bind  himself  to  pay  it; 
yet  it  is  there  laid  down  by  Lord  Tenter- 
den, that  if  such  a  person  receive  the 
goods  in  pursuance  of  a  bill  of  lading 
making  the  payment  of  such  charge  a 
condition  precedent  to  the  delivery  of  the 
goods,  or  if  he  have  notice  from  the  mas- 
ter, that  if  he  take  the  goods  he  must 
take  them  subject  to  the  charge,  he  will 
be  liable.  Now  in  Renteria  v.  Ruding 
the  defendants  claimed  to  receive  the 
goods  by  virtue  of  the  bill  of  lading, 
which  made  the  payment  of  freight,  &.c., 
a  condition  precedent  to  the  delivery. 
And  though  they  might  not  be,  properly 
speaking,  indorsees  of  the  bill;  still  as 
they  exhibited  it,  and  claimed  to  receive 
the  goods  in  pursuance  of  it,  they  might 
fairly  be  taken  to  have  assented  to  its 
terms,  so  that  a  promise  to  pay  the  charge 
therein  imposed  might  be  implied. 

Further — although  an  instrument  may 
contain  nothing  on  the  face  of  it  incon- 
sistent with  the  character  of  negotia- 
bility, still,  if  it  be  not  accustomably 
transferable  in  the  same  manner  as  cash, 
it  will  not  be  looked  upon  as  a  negoliaJde 
instrument.  Thus  in  Lang  v.  Smyth  a 
question  arising  whether  certain  instru- 
ments called  bordereaux  and  coupons, 
which  purported  to  entitle  the  bearer  to 
portions  of  the  public  debt  of  the  kingdom 
of  Naples,  were  negotiable  instruments; 


the  jury  having  found  that  they  did  not 
usually  pass  from  hand  to  hand  like 
money;  that  finding  was  held  conclusive 
to  show  that  they  were  not  negotiable 
instruments.  Whether  an  instrument 
which  has  never  been  solemnly  recog- 
nised by  the  law  as  negotiable  be  accus- 
tomably transferable  by  delivery,  or  not, 
is  a  question  which  must  in  each  case  be 
left  to  the  determination  of  a  jury.  It 
was  submitted  to  the  jury  in  Lang  v. 
Smyth,  and  held  to  have  been  rightly  .=o. 

It  seems  to  have  been  thought  in  Lang 
V.  Smyth,  that  if  a  question  were  to  arise 
respecting  the  negotiability  of  a  foreign 
instrument,  and  it  were  shown  not  to  be 
negotiable  in  the  country  where  it  was 
made,  the  fact  of  its  accustomably  pass- 
ing like  cash  in  this  country  would  not 
make  it  negotiable. 

"These,"  said  Tinda!,C.  J.,  "are  not 
English  instruments  recognised  by  the 
law  of  England,  but  Neapolitan  securities 
brought  lo  the  notice  of  the  court  for  the 
first  time,  and  as  Judges  we  are  not  al- 
lowed to  form  an  opinion  on  them  unless 
supplied  with  evidence  as  to  the  law  of 
the  country  whence  they  come.  Judges 
have  only  taken  upon  themselves  to  de- 
cide the  nature  of  instrutnents  recognised 
by  the  law  of  this  country,  as  bills  of  ex- 
change, which  pass  current  by  the  law 
merchant,  dividend  warrants,  or  exche- 
quer bills,  the  transfer  of  which  is  found- 
ed on  statutes,  which  a  Judge  in  an 
English  court  is  bound  to  know.  It  has 
been  urged  that  in  Gorgier  v.  Mieville, 
the  case  of  the  Prussian  bonds,  no  evi- 
dence was  given  of  the  foreign  law.  But 
evidence  was  given,  that,  by  the  usage 
of  merchants  in  this  country,  those  bonds 
passed  from  hand  to  hand,  which  usnge 
could  have  scarcely  existed  unless  they 
were  negotiable  in  Prussia,  so  that  evi- 
dence as  to  the  law  of  Prussia  was  ren- 
dered unnecessary.  And  the  question  is 
not  so  much  what  is  the  usage  in  the 
country  whence  the  instrument  comes, 
as  in  the  country  where  it  was  passed." 
The  rule  to  be  collected  from  this  seems 
to  be  that  a  foreign  instrument  is  not 
negotiable  here,  unless  negotiable  where 
it  was  made;  but  that  evidence  that  it  is 
accustomably  transferable  from  iiand  to 
hand  in  this  country,  is  prima  facie 
evidence  that  it  also  is  so  abroad.  One 
class  of  cases  in  which  the  negotiability 
of  an  instrument  becomes  important,  is 
where  a  question  arises  whether,  upon 
the  holder's  death,  it  be  subject  to  pro- 
bate duty.     Now  as  the  ordinary's  right 


MILLER     V.     RACE. 


521 


to  grant  probate  at  all  depends  on  the 
locality  of  the  effects  within  his  diocese, 
it  has  been  held  that  French  rentes, 
American  stock,  and  debts  due  from  a 
foreigner,  being  transferable  abroad  only, 
must  bo  considered  as  locally  situate 
abroad,  and,  consequently,  as  exempt 
from  probate  duty;  but  that  Foreign 
bills  and  bonds,  given  by  the  Russian, 
Dutch,  and  Prussian  governments,  ac- 
customably  saleable  in  the  market  here 
are  chattels  in  this  country  liable  to  pro- 
bate duty,  although  the  dividends  upon 
the  Dutch  bonds  were  payable  solely  at 
Amsterdam.  Attornsy-General  v.  Bou- 
wens,  4  M.  &  W.  171 ;  Attorney-Gene- 
ral V.  Hope,  1  C.  M.  &  Rose.  5:50;  8 
Bligh,  44  ;  Attorney-General  v.  Dimond, 
1  G.  &  Jerv.  356. 

It  has  thus  been  endeavoured  to  de- 
duce some  rules  whereby  to  ascertain 
when  a  particular  instrument  is  or  is  not 
negotiable.  When  once  decided  to  be 
negotiable,  it  becomes,  as  has  been  al- 
ready stated,  exempted  from  the  ordinary 
rule  respecting  chattels  personal,  and 
property  in  it  may  be  transferred  by  a 
man  who  has  none  in  it  himself,  to  a  per- 
son taking  it  bona  fide,  and  for  a  good 
consideration.  Grant  v.  Vaughan,  3 
Burr.  1516 ;  Collins  v.  Martin,  3  B.  & 
P.  649 ;  Wookey  v.  Pole,  4  B.  &  A.  1 ; 
Peacock  v.  Rhodes,  Dougl.  636 ;  Lavvson 
V.  Weston,  4  Esp.  56  ;  Snow  v.  Saddler, 
3  Bing.  610.  But  a  party  who  has  not 
taken  it  bona  fide,  and  for  good  consider- 
ation, will  not  be  permitted  to  retain  it : 
for  it  stands  on  the  same  footing  as 
money,  except  that  it  is  much  *more 
r*opoi  easily  identified,  and  money  itself 
'-  "  -I  could  not  be  retained  under  those 
circumstances. 

This  was  decided  in  Clarke  v,  Shee, 
Cowp.  197,  where  the  plaintiff's  clerk 
received  notes  and  moneys  for  his  mas- 
ter, and  laid  them  out  with  defendant  in 
illegal  insurances  of  lottery-tickets;  the 
master,  being  able  to  prove  their  iden- 
tity, was  held  entitled  to  recover  them. 
"  When  money  or  notes,"  said  Lord 
Mansfield,  "are  paid  bona  fide,  and  upon 
a  valuable  consideration,  they  never 
shall  be  brought  back  by  the  true 
owner;  but  where  they  come  rnala  fide 
into  a  person's  hands,  they  are  in  the 
nature  of  specific  property:  and  if  their 
identity  can  be  traced  and  ascertained, 
the  party  has  a  right  to  recover."  Such 
being  the  principle,  the  contest,  in  each 
particular  case  has  ever  since  been 
whether  the  circumstances  under  which 


the  negotiable  instrument  has  passed  to 
the  party  claiming  to  hold  it,  afford  evi- 
dence of  mala  fides,  so  as  to  bring  the 
case  within  the  latter  part  of  the  rule 
laid  down  in  Clarke  v.  Shee,  by  Lord 
Mansfield.  Now,  it  was  very  early  held 
that  there  might  be,  on  the  part  of  a  per- 
son taking  a  negotiable  instrument,  neg- 
ligence of  such  a  description,  and  so 
gross,  as  would  afford  cogent  evidence 
of  mala  fides ;  in  other  words,  as  would 
satisfy  any  reasonable  man  that  the  party 
guilty  of  it  must,  or  ought  to,  have  sus- 
pected that  the  dealing  in  which  he  was 
engaged  was  tainted  with  fraud.  This 
was  laid  down  in  Solomons  v.  The  Bank 
of  England,  13  East,  135.  But  the  case 
which  has,  perhaps,  gone  furthest  on  the 
subject,  is  Gill  v.  Cubitt,  3  B.  &  C.  466. 
That  was  an  action  brought  upon  a  bill 
drawn  by  Evered  on  the  defendants,  and 
accepted  by  them.  On  the  20th  of 
August,  1823,  a  letter  containing  this 
bill,  with  two  others,  was  enclosed  in  a 
parcel,  and  booked  at  the  Green  Man 
and  Still,  for  Birmingham,  where  the 
parcel  arrived,  but  the  letter  was  found 
to  have  been  opened,  and  the  bills  were 
gone.  The  plaintiff's  nephew  swore 
that  on  the  21st  of  August,  between  9 
and  10,  ante  meridiem,  the  bill  was 
brought  to  the  office  of  the  plaintiff,  a 
bill-broker  in  London,  by  a  person  whose 
features  were  familiar,  but  whose  name 
was  unknown  to  him,  and  who  desired 
the  bill  might  be  discounted  ;  but  the  wit- 
ness, at  first,  declined  to  do  so,  because 
the  acceptors  were  not  known  to  him: 
the  person,  who  brought  the  bill,  then 
said,  that  a  few  days  before  he  had 
brought  other  bills  to  the  office,  and  that, 
if  inquiry  were  made,  it  would  be  found 
that  the  parties  whose  names  were  on 
this  bill  were  highly  respectable :  he  then 
quitted  the  office,  and  left  the  bill,  and 
on  inquiry  the  witness  was  satisfied  with 
the  names  of  the  acceptors:  the  stranger 
returned  after  a  lapse  of  two  hours,  in- 
dorsed the  bill  in  the  name  of  Charles 
Taylor,  and  received  the  full  value  for 
it,  the  usual  discount,  and  a  commission 
of  two  shillings  being  deducted  :  the  wit- 
ness did  not  inquire  the  name  of  the  per- 
son who  brought  the  bill  or  his  address, 
or  whether  he  brought  it  on  his  own  ac- 
count or  otherwise,  or  how  he  came  by 
the  bill.  It  was  the  practice  at  the 
plaintiff's  office  not  to  make  any  inquiries 
about  the  drawer  or  other  parties  to  a  bill, 
provided  the  acceptor  was  good.  The 
Lord  Chief  Justice  left   it  to  the  jury 


522 


SMITHS     LEADING     CASES. 


tchcther  the  plaintiff'  had  taken  the  bill 
under  circumstances  lohich  ought  to 
have  excited  the  suspicion  of  a  prudent 
and  careful  man.  If  lliey  thought  he 
had,  they  were  to  find  a  verdict  for  the 
defendant.  His  lordship  asked  the  jury 
vvliat  tliey  would  think  if  a  board  were 
alRxed  over  an  office  with  this  notice, 
"Bills  discounted  for  persons  whose 
features  are  known,  and  no  questions 
asked."  The  jury  found  for  the  defend- 
ant, and  a  new  trial  being  moved  for,  was 
refused,  the  Lord  Chief  Justice  saying-, 
he  agreed  that  the  case  was  hardly  dis- 
tinguishable from  Lawson  v.  Weston,  4 
Esp.  5G,  but  could  not  help  thinking  that, 
if  Lord  Kgnyon  had  anticipated  the  con- 
sequences, he  would  have  paused  before 
he  pronounced  that  decision.  Bayley, 
J.,  said,  "It  is  said  that  the  question 
usually  submitted  to  the  consideration  of 
the  jury  has  been  whether  the  bill  was 
taken  bona  fide,  and  whether  a  valuable 
consideration  was  given  for  it.  I  admit 
that  has  been  generally  the  case,  but  I 
consider  it  was  parcel  of  the  bona  fides 
whether  the  plaintiff  had  asked  all  those 
questions  which,  in  the  ordinary  and 
proper  manner  in  which  *trade  is  con- 
P2631  *^"^'^^'^'  ^  parly  ought  to  ask." 
-'  "It  isa  question  for  the  jury," 
said  Holroyd,  J.,  "  whether  a  bill  has 
been  taken  bona  fide  or  not,  and 
whether  due  and  reasonable  caution 
has  been  used  by  the  party  taking  it." 
This  case  has  been  stated  at  some 
length,  because  it  has  been  the  one 
usually  most  relied  on  by  persons  seeking 
r*26'^  1  *'"  invalidate  the  transfer  of  a 
'-  ^    bill,  on  the  ground  of  want  of 

caution  in  taking  it.  It  was  followed  by 
Snow  V.  Peacock,  3  Binsr.  408;  Down 
V.  Hailing,  4  B.  &  C.  330;  Slater  v. 
West,  Dans.  &  Lloyd,  15;  Bechwith  v. 
Corrall,  4  Bingh.  444;  Strange  v.  Wig- 
ney,  6  Bingh.  677;  Easly  v.  Crockford, 
10  Bingh.  213;  which  last  is  a  strong 
case:  the  plaintiff  there,  who  was  rob- 
bed of  a  bank-note  for  200/.,  was  held 
entitled  to  recover  it  from  the  defen- 
dant, who  had  taken  it,  as  he  said,  in 
payment  of  a  bet  at  the  Derby,  but 
could  not  recollect  from  whom.  In  Snow 
V.  Saddler,  3  Bingh.  610,  the  court  had 
held  that  a  person  who  received  a  stolen 
30Z.  note  in  payment  of  a  bet  at  Doncas- 
cer,  might  retain  it  against  the  true 
owner;  but  the  court  distinguished  the 
case,  on  account  of  the  larger  amount  of 
this  note.  See  further,  Burn  v.  Morris, 
4   Tyrwh.    485;    Haynes  v.   Foster,  4 


Tyrwh.  60;  and  Fancourt  v.  Bull,  1 
Bmgh.  N.  C.  681.  However,  a  disposi- 
tion has  of  late  been  manifested  to  re- 
lax the  strictness  with  which  the  con- 
duct of  the  person  receiving  a  bill  or 
note,  improperly  come  by,  has  hereto- 
fore been  regarded.  In  Crook  v.  Jadis, 
5  B.  &  Ad.  909,  an  accommodation  bill 
for  lOOOZ.  was  fraudulently  sold  to  How- 
ard, for  whom  the  plaintiff  discounted 
it.  In  an  action  against  the  drawer, 
Lord  Denman  left  it  to  the  jury  to  find 
for  the  plaintiff,  if  they  thought  he  had 
not  been  guilty  of  gross  7iegligence, 
and  the  court,  on  a  motion  for  a  new 
trial,  ruled  that  that  was  the  correct 
expression.  "  I  never,"  said  Patteson, 
J.,  "could  understand  what  was  meant 
by  a  party  taking  a  bill  under  circum- 
stances which  ought  to  have  excited  the 
suspicion  of  a  prudent  man."  (Vide  ta- 
men  the  observations  of  Tindal,  L.  C.  J., 
in  Vaughan  v.  Menlove,  3  Bingh.  N.  C. 
475.)  This  was  followed  by  Backhouse 
V.  Harrison,  5  B.  &  Adol.  1098:  there 
the  plaintiff,  an  officer  of  a  banking  com- 
pany, discounted  two  discoloured  bills, 
for  20/.  and  26/.  19s.  9d.  for  a  man  who 
could  not  write,  and  was  not  known  in 
the  town.  The  bills  turned  out  to  have 
been  lost,  and  the  jury  found,  on  ques- 
tions specially  submitted  to  them,  that 
the  plaintiff  took  the  bills  bona  fide, 
but  under  such  circumstances  that  a 
reasonable  cautious  man  wouldnot  leave 
taken  them.  They  then  found  a  verdict 
for  the  defendant,  subject  to  the  question 
whether  he  was  not  estopped  from  set- 
ting up  the  plaintiff's  negligence  as  a 
defence,  by  having  himself  committed 
the  first  negligence  in  not  advertising 
the  loss  of  the  bills.  The  court,  without 
deciding  that  point,  set  the  verdict  aside, 
on  the  ground  that  gross  negligence  had 
not  been  found  by  the  jury,  and  that  the 
evidence  was  not  sufficient  to  warrant 
such  a  finding.  "I  have  no  hesitation," 
said  Patteson,  J.,  "in  saying,  that  the 
doctrine  first  laid  down  in  Gill  v.  Cu- 
bitt,  and  acted  upon  in  other  cases, 
*that  a  party,  who  takes  a  bill  r*.ig3/,i 
under  circumstances  which  '-  ~  ■' 
ought  to  have  excited  the  suspicion  of 
a  prudent  man,  cannot  recover  it,  has 
gone  too  far,  and  ought  to  be  restricted. 
I  can  perfectly  understand  that  a  party 
who  takes  a  bill  fraudulently,  or  under 
such  circumstances  that  he  must  know 
that  the  person  offering  it  to  him  has  no 
right  to  It,  will  acquu-e  no  title;  but  I 
could  never  understand  that  a  party  who 


MILLER     V.     RACE. 


523 


takes  a  bill  bona  fide,  but  under  the  cir- 
cumstances mentioned  in  Gill  v.  Cubitt, 
does  not  acquire  a  property  in  it.  I 
think  the  fjict  found  by  the  jury  here, 
that  the  plaintifl^took  the  bills  tiona  fide, 
but  under  such  circumstances  that  a  rea- 
sonable cautious  man  would  not  have 
taken  them,  was  no  defence.  The  rule 
must  be  absolute  for  a  new  trial."  Gill 
V.  Cubitt,  therefore,  after  overruling 
Lawson  v.  Weston,  may  now,  perhaps, 
be  itself  considered  as  virtually  over- 
ruled. See  tiie  judgment  of  the  Court 
of  Exchequer,  in  Foster  v.  Pearson,  .5 
Tyrwh.  2(52,  where  it  is  observed,  that, 
in  consequence  of  the  new  rules  of 
pleading,  the  question,  when  next 
raised,  will  prob:ibly  be  raised  on  the 
record,  so  that  it  may  receive  the  de- 
cision of  a  court  of  error.     In  Goodman 


V.  Harvoy.  4  A.  &  E.  870,  the  Court  of 
Queen's  Bench  ruled  that  there  must  be 
actual  mala  fides,  and  that  the  existence 
of  gross  negligence  even  was  unimport- 
ant except  so  far  as  it  might  be  evidence 
of  mala  fides.  [And  in  Uther  v.  Rich, 
10  A.  &  E.  784,  the  court  adhered  to 
the  decision  in  Goodman  v.  Harvey,  and 
held  that  mala  fides  in  the  holder  of  a 
negotiable  security,  if  relied  on,  must 
be  distinctly  alleged  ;  that  the  only  pro- 
per mode  of  implicating  him  in  an 
alleged  fraud  is  by  averring  that  he  had 
notice  of  it,  and  that  an  allegation  that 
he  was  not  a  bona  fide  holder  is  not 
equivalent  to  an  averment  of  such  no- 
tice. See  Arboin  v.  Anderson,  1  Q,.  B. 
498,  which  also  turned  on  the  form  of 
the  pleadings.] 


Whether  current  bank-notes,  in  the  ordinary  transactions  of  business, 
are  to  be  considered  as  cash,  has  given  rise  to  a  diversity  of  opinion.  In 
several  cases,  it  has  been  held  that  a  delivery  of  bank-notes  current  at  the 
time  and  place  of  the  transaction,  in  payment,  or  exchange,  or  on  deposit, 
as  money,  discharges  or  creates  a  debt,  as  money  would  have  done,  and  the 
notes  are  at  the  risk  of  the  person  receiving  them,  although  the  bank  has 
stopped  payment  at  the  time,  if  that  fact  be  not  known  to  either  party; 
Bayard  v.  Shunk,  1  Watts  &  Sergeant,  92;  Corbit  v.  The  Bank  of  Smyrna, 
2  Harrington,  236;  Edmunds  v.  Digges,  1  Grattan,  359,  549;  Lowrey  v. 
Murrell,  2  Porter,  280 ;  Scruggs  v.  Gass,  8  Yerger,  175 ;  Young  v.  Adams, 
6  Massachusetts,  182 ;  Phillips,  Judge,  &c.  v.  Blake,  Administrator,  1  Met- 
calf,  156,  approved  in  Whiton  v.  Old  Colony  Ins.  Co.,  2  id.  1,  5.  But  in 
other  cases,  it  has  been  decided,  that  notes  of  an  insolvent  bank,  or  of  one 
that  has  stopped  payment,  are  like  counterfeit  notes,  and  operate  no  dis- 
charge of  a  debt,  if  the  receiver  does  not  render  himself  chargeable  by 
laches;  Lightbody  v.  Ontario  Bank,  11  Wendell,  9,  18  ;  S.  C,  on  error, 
13  id.  10]  ;  Thomas  v.  Todd,  6  Hill,  340  ;  Fowler  v.  Van  Surdam,  1  Benio, 
557,  559;  Fogg  v.  Sawyer,  9  New  Hampshire,  365;  Frontier  Bank  v. 
Morse,  22  Maine,  (9  Shepley,)  88.  Some  of  these  cases  take  the  distinc- 
tion between  antecedent  and  present  debts,  which  is  stated  in  the  note  to 
Cumber  v.  Wane,  (supra,  p.  383-398),  in  regard  to  ordinary  promissory  notes 
of  a  third  person :  but  that  distinction  does  not  appear  to  be  applicable  in 
the  case  of  bank-notes. 

As  between  a  bank,  or  those  claiming  in  privity  with  it,  and  a  debtor  to 
the  bank,  the  notes  of  the  bank  are  cash  ;  and  payment  into  court,  or  tender, 
made  in  them,  is  as  against  the  former,  as  good  as  if  made  in  cash ;  North- 
ampton Bank  v.  Balliet,  8  Watts  &  Sergeant,  311. 

It  appears  to  be  settled  in  the  American  cases,  that  the  holder  of  a  nego- 
tiable note   is,  prima  facie,  entitled   to  recover,  upon  merely  producing  the 


524  smith's   leading   cases. 

note;  but  that  if  the  plaintiff  prove  that  the  note  was  fraudulent  in  its 
inception,  or  fraudulently  put  in  circulation,  or  stolen,  or  lost,  or  obtained 
by  duress,  there  is  thrown  upon  the  plaintiff  the  burden  of  proving  that  he 
is  a  holder  bona  fide,  and  for  a  valuable  consideration.      Holme  v.  Karsper, 

5  Binney,  469  j  Beltzhoover  v.  Blackstock,  3  Watts,  20  ;  Knight  v.  Pugh, 
4  iWatts  &  Sergeant,  445;  Brown  v.  Street,  G  id.  221;  Vathir  v.  Zane, 

6  Grattan,  246,  263  ;  Munroe  v.  Cooper  ct  al.,  5  Pickering,  412  ;  Conroy 
V.  Warren,  3  Johnson's  Cases,  259;  WoodhuU  v.  Holmes,  10  Johnson,  231; 
Rogers  V.  Morton,  12  Wendell,  484,  487.  See  Russcl  v.  Ball,  Cook  &Cook, 
2  Johnson,  50,  where  a  distinction  is  taken  by  Livingston,  J.,  between 
notes  payable  to  order  and  to  bearer.  The  particular  question  discussed  in 
the  latter  part  of  Mr.  Smith's  note,  does  not  appear  to  have  been  involved 
in  these  eases.  That  question  seems  to  be  this ;  Whether,  when  the  defen- 
dant has  proved  the  intervention  of  such  unfair  and  suspicious  circum- 
stances as  put  upon  the  plaintiff  the  necessity  of  showing  that  he  is  a  bona 
fide  holder  for  valuable  consideration,  iclietlier,  in  that  case,  the  plaintiff  does 
not  fully  rebut  the  presumption  of  fraud  in  his  title,  by  proving  a  valuable 
consideration,  and  thereby  put  upon  the  defendant  the  burden  of  replying 
fraud  specially  in  him ;  or  whether  the  original  suspicion  still  remains,  and 
the  plaintiff  is  bound,  in  addition  to  full  consideration,  affirmatively  to 
prove  that  the  circumstances  under  which  he  bought  the  note,  were  such 
as  gave  him  no  reason  to  suspect  that  there  was  a  flaw  in  the  title  of  the  par- 
ties preceding  him.  The  former  doctrine,  which  is  in  effect  that  of  Back- 
house V.  Harrison,  has  this  obvious  consideration  to  stand  upon :  that,  prima 
facie,  the  suspicion  of  collusion  between  the  plaintiff  and  the  intermediate 
parties,  remaining  after  full  consideration  is  proved,  is  certainly  not  stronger 
than  the  suspicion  which  must  always  exist,  of  collusion  between  the  de- 
fendant and  those  persons  in  letting  the  note  get  into  circulation.  In  Dick- 
eon  et  al.  V.  Primrose  et  al.,  2  Miles,  366,  it  is  said  that  the  plaintiff  must 
prove  he  gave  full  consideration,  "  and  in  some  cases  he  must  even  show, 
that  he  took  it  without  any  circumstances  of  suspicion,  or  his  ownership'  will 
not  be  held  bona  fides."  But  in  a  later  case  that  court  adopted  the  principle 
of  Backhouse  v.  Harrison,  and  decided  that  the  defendant  must  prove  fraud. 
But,  in  Vermont,  the  recent  case  of  Sandford  v.  Norton,  14  Vermont,  228, 
233,  inclines  to  the  doctrine  of  Gill  v.  Cubitt.     See  S.  C  17  id.  285. 

H.  B.  W. 


ASLIN    V.    PARKIN.  525 


*ASLIN   V.   PARKIN.  [*264] 


MICH.  32  GEO.— 2. 
[REPORTED    2    BURR.    GG5.] 

After  a  jiulp^ment  by  default  against  tlie  casual  ejector,  trespass  for  mesne  prolits 
may  be  brought  either  in  tiie  name  of  the  fictitious  plaintiff',  or  in  that  of  his 
lessor. 

In  such  an  action  the  judgment  in  ejectment  is  evidence  of  tiie  p]aintift''s  title 
and  possession  from  the  date  of  tlie  demise  in  tlie  declaration  in  ejectment. 

The  costs  of  the  ejectment  may  be  recovered  as  damages. 

This  was  an  action  of  trespass,  for  the  mesne  profits  of  a  bouse  in  Shef- 
field in  Yorkshire,  brought  in  the  name  of  the  lessee  or  nominal  plaintiff  in 
ejectment,  against  the  tenant  in  possession,  after  judgment  obtained  against 
the  casual  ejector  by  default.  The  costs  of  the  ejectment  were  also  included 
and  inserted  in  the  declaration,  as  consequential  damages  of  the  trespass 
therein  complained  of. 

On  the  trial  of  this  cause  before  Lord  Mansfield,  at  the  summer  assizes, 
1758,  at  the  city  of  York,  the  plaintiff  gave  in  evidence  the  judgment  in 
ejectment,  the  writ  of  possession  with  the  return  of  execution  upon  it,  the 
defendant's  occupation  of  the  premises,  the  value  of  them  during  that  time 
(which  was  proved  to  be  20/.)  and  the  costs  of  the  ejectment  (amounting  to 
12/.  more). 

On  the  part  of  the  defendant  it  was  objected,  that  as  the  judgment  in  the 
ejectment  was  by  default,  against  the  casu:il  ejector,  this  action  could  not  be 
legally  maintained  in  the  name  of  the  nominal  plaintiff;  but  ought  to  have 
been  brought  by  the  plaintiff's  lessor:  and  they  ought  to  have  proved  the 
plaintiff  to  have  been  in  possession  when  the  defendant  committed  the  tres- 
pass for  which  the  action  is  brought. 

*In  support  of  this  objection,  it  was  argued,  that  though  the  law  ^^^-^„r-, 
allows  fictitious  proceedings  in  ejectment,  for  the  trying  of  titles;  L  ""  J 
yet  in  actions  for  mesne  profits  no  such  fiction  prevails:  but  the  suit,  the 
injury,  and  the  defendant  are  real;  and  the  action  in  no  respect  differs  from 
any  action  of  trespass. 

That  this  was  a  possessory  action;  which  could  in  no  case  bo  maintained, 
unless  the  plaintiff's  possession  was  either  proved  or  admitted  :  and  as,  in 
the  present  case,  the  plaintiff  could  not  possibly  prove  an  actual  entry,  there 
was  no  evidence  of  his  possession,  tliafc  could  affect,  or  be  received  against, 
the  present  defendant. 

It  was  admitted,  that  an  action  of  this  kind  might  be  brought  in  the 
name  of  the  nominal  plaintiff  in  ejectmeut,  where  the  tenant  had  appeared 


526  smith's    leading    cases. 

and  confessed  lease,  entry,  and  ouster;  because  being  thereby  become  a 
party  to  the  record  in  ejectment,  and  having  confessed  the  entry  of  the 
plaintiff,  he  is  estopped  by  that  confession,  and  by  the  judgment  against 
him,  from  controverting  afterwards  the  plaintiff's  possession  ;  but  where  the 
judgment  in  ejectment  was  by  default,  against  the  casual  ejector,  there  was 
no  such  confession  of  the  tenant,  no  matter  of  record  to  estop  him ;  but  he 
was  equally  at  liberty  to  deny  the  plaintiff's  possession,  and  to  put  him 
upon  proving  it,  as  in  any  other  action  of  trespass;  and  having  never  been 
a  party  to  the  judgment  in  ejectment,  neither  that  judgment  nor  the  writ  of 
possession  upon  it,  (as  they  were  merely  between  the  nominal  plaintiff  and 
a  third  person,  the  casual  ejector,)  could  be  any  conclusion  or  evidence 
against  the  present  defendant. 

It  was  therefore  insisted,  that  this  action  ought  to  have  been  brought  by 
the  lessor  of  the  plaintiff,  in  his  own  name;  who  might  have  proved  an 
actual  entry  under  the  writ  of  possession ;  and  by  that  entry,  the  possession 
he  thereby  obtained  would  relate  back  to  the  commencement  of  his  title  : 
but  being  brought  in  the  name  of  the  nominal  plaintiff,  and  the  defendant 
being  a  stranger  to  the  judgment  in  ejectment,  the  plaintiff  had  failed  of 
maintaining  his  action. 

In  support  of  this  objection,  the  defendant's  counsel  urged  that  although 
the  distinction  was  carried  no  farther,  in  the  case  of  Jefferies  v.  Dyson,  (2 
r*9rfil  S*^^°o^  960,  H.  7  G.  2,  B.  K-.)  *than  to  admit  the  tenant  in  posses- 
L  -*  sion  (where  the  judgment  was  against  the  casual  ejector,  by  default,) 
to  controvert  the  title  of  the  plaintiff,  upon  an  action  for  the  mesne  profits, 
yet  both  parts  of  that  case  had  been  since  contradicted ;  and  it  has  been 
since  holden,  <<  that  the  defendant  should  not  controvert  the  plaintiff's  title  :" 
but  (where  the  tenant  had  not  entered  into  the  common  rule)  ''the  plaintiff 
must  prove  his  own  actual  possession ;  and  can  only  recover  damages  from 
that  time."  For  this,  they  cited  a  case  of  Stanynought  v.  Cousins,  H.  19 
G.  2,  C.  B.  (2  Barnes,  367),  and  some  circuit  traditions  of  nonsuits  for 
want  of  the  plaintiff's  proving  his  possession,  where  the  judgment  was  by 
default  against  the  casual  ejector. 

Lord  Maniifield  reserved  the  point,  at  the  assizes  ;  and  afterwards  pro- 
posed it  to  all  the  Judges,  and  had  their  opinion;  which  he  thought  fit  now 
publicly  and  particularly  to  declare. 

Upon  principles,  his  lordship  said,  he  was  clearly  of  opinion  against  the 
objection,  on  the  trial,  without  hearing  the  counsel  for  the  plaintiff.  But 
as  authorities  were  then  referred  to,  and  as  the  point  related  to  the  effect  of 
that  proceeding  which  is  now  almost  the  only  remedy,  in  practice,  for  recov- 
ering land  wrongfully  withheld ;  he  thought  it  of  great  consequence  that 
the  matter  should  be  considered  by  all  the  Judges.  He  therefore  reserved 
the  case,  declaring  ''he  did  it  with  that  view;  and  that  he  would  endeavour 
to  get  their  opinion  without  any  delay  or  expense  to  the  parties." 

Accordingly,  his  lordship  laid  it  before  them  upon  the  first  day  of  term  ; 
and  they  took  till  last  Thursday,  the  16Lh  of  November,  to  look  into  the 
cases,  so  far  as  they  could,  with  any  accuracy,  be  traced.  And  besides 
those  that  are  in  print,  they  had  seen  some  in  manuscript,  different  ways; 
which  were  now,  he  said,  totally  immaterial  to  be  mentioned : 

Because  all  the  Judges  are  ununimously  of  opinion  "that  the  nominal 
plaintiff,  and  the  casual  ejector,  are  judicially  to  be  considered  as  the  fictiti- 


ASLIN    V.     PARKIN. 


52t 


ous  form  of  an  action  really  brought  by  the  lessor  of  the  plaintiff  against 
the  tenant  in  possession;  invented  under  the  control  and  power  of  the  court, 
for  the  advancement  of  justice  in  many  respects;  and  to  force  the  parties 
to  go  to  trial  on  the  *merits,  ■without  being  entangled  in  the  nicety  p^c^p-.-, 
of  pleadings  on  either  side."  L  ~     J 

<<  That  the  lessor  of  the  plaintiff,  and  the  tenant  in  possession,  are  sub- 
stantially, and  in  truth,  the  parlies,  and  the  only  parties,  to  the  suit.  The 
tenant  in  possession  must  be  duly  serve!:  and  if  he  is  not,  he  has  a  right 
to  set  aside  the  judgment.  If,  after  he  is  duly  served,  he  does  not  appear, 
but  lets  judgment  go  by  default,  such  judgment  is  carried  into  execution 
against  him  by  a  writ  of  possession." 

''That  there  is  no  distinction  between  a  judgment  in  ejectment  upon  a 
verdict,  and  a  judgment  by  default.  In  the  first  case  the  right  of  the  plain- 
tiff is  tried  and  determined  against  the  defendant :  in  the  last  case  it  is 
confessed." 

"  An  action  for  the  mesne  profits  is  consequential  to  the  recovery  in  eject- 
ment. It  may  be  brought  by  the  lessor  of  the  plaintiff  in  his  own  name, 
or  in  the  name  of  the  nominal  lessee ;  and  in  either  shape  it  is  equally  his 
action." 

«The  tenant  is  concluded  by  the  judgment,  and  cannot  controvert  the 
title.  Consequently,  he  cannot  controvert  the  plaintiff's  possession  ;  because 
hia  possession  is  part  of  his  title :  for  the  plaintiff,  to  entitle  himself  to 
recover  in  an  ejectment,  must  show  a  possessory  right  not  barred  by  the 
statute  of  limitations." 

"This  judgment,  like  all  others,  only  concludes  the  parties,  as  to  the 
subject-matter  of  it.  Therefore,  beyond  the  time  laid  in  the  demise,  it 
proves  nothing  at  all  :  because,  beyoud  that  time,  the  plaintiff  has  alleged 
no  title,  nor  could  be  put  to  prove  any." 

"  As  to  the  length  of  time  the  tenant  has  occupied,  the  judgment  proves 
nothing ;  nor  as  to  the  value.  And,  therefore,  it  was  proved,  in  this  case, 
(and  must  be  in  all)  how  long  the  defendant  enjoyed  the  premises;  and 
what  the  value  was ;  and  it  appeared  that  the  time  of  such  occupation  by 
the  defendant  was  within  the  time  laid  in  the  demise." 

This  unanimous  resolution  of  all  the  Judges,  upon  short  plain  principles, 
will  not  only  be  a  certain  and  uniform  rule,  upon  actions  for  mesne  profits ; 
but  may  tend  to  put  this  fictitious  remedy  by  ejectment  upon  a  true  and 
liberal  foundation;  to  attain  speedily  and  effectually  the  complete  ends  of 
justice,  according  to  the  real  merits  of  the  case. 

*jMy  Brother  Wilmot  tells  me,  that  he  had  the  very  same  ques-  ^^1^9^0-1 
tion  made  before  him,  upon  the  Oxford  circuit,  the  last  assizes  :  but  L  J 
the  cause  went  off  upon  another  point. 

I  am  therefore  glad  that  the  general  rule  is  now  settled ;  and  that  the 
settling  of  it  has  occasioned  no  expense  or  delay  to  the  particular  parties  in 
this  cause. 

The  rule  consequently  was,  that  the  po,?/ea  be  delivered  to  the  plaintiff, 
that  he  might  have  judgment. 


528 


SMITHS  LEADING  CASES. 


See  Goodtitle  v.  Thorns,  3  Wil,-\  118. 
Althou;jli  Aslin  v.  Parkin  decides  that 
trespass  for  mesne  profits  mny  be 
brought,  after  a  judgment  by  default,  in 
tlie  name  of  the  ticlitious  plaintiff,  still, 
if  it  be  sought  to  recover  profits  antece- 
dent to  the  day  of  the  demise  laid  in  the 
previous  ejectment,  the  action  should  be 
brought  in  the  name  of  the  real  plaintiff", 
for  the  title  of  the  fictitious  plaintiff 
exists,  of  course,  only  in  the  proceedings 
in  ejectment,  from  which  it  appears  to 
have  commenced  with  the  demise  there 
laid.  {Diclujn,  S.  P.  Osbourne  v.  Os- 
bourne,  11  Serg.  &  Ravvle,  55,58. }  So 
if  the  action  bo  brought  against  an  occu- 
pier antecedent  to  the  ejectment,  for  as 
to  him  the  record  of  the  ejectment  is  no 
evidence.  Decosta  v.  Atkins,  B.  N.  P. 
87.  See  Hunter  v.  Brilts,  H  Camp.  4-56 ; 
{Chirac  V.  Reinecker,  11  Wheaton,  280 ; 
2  Petens,  G13;  Reid  v.  Stanley,  6  VV. 
&i  S.  369,  375;  Vance  v.  Inhabitants  of 
C.  T.,  7  Blackford,  241;}  Denn  v. 
White,  7  T.  R.  112.  {The  judgment 
in  ejectment  is  conclusive  of  the  title 
from  the  time  of  the  demise  laid,  or, 
where  the  old  form  is  abolished,  from 
the  time  of  the  writ  issued  :  if  the  plain- 
tiff claims  beyond  that  time,  as  to  such 
time  the  defendant  may  controvert  the 
title;  Van  Alen  v.  Rogers,  1  Johnson's 
Cases,  281  ;  Jackson  v.  Randall,  11 
Johnson,  4U5;  Doe  v.  Dupuy,  4  J.  J. 
iMarshall,  388;  Hylton  v.  Brown,  2 
Wasiiington  C.  C.  165;  Shotwell  v. 
Boehm,  1  Dallas,  172;  Huston  v.  Wick- 
ersham,  2  W.  &  S.  308  ;  Postens  v. 
Postens,  3  id.  182;  Man  v.  Drexel,  2 
Barr,  202;  Drexel  v.  Man,  id.  271.  In 
West  v.  Hughes,  1  Harris  &  Johnson, 
574,  it  was  held,  that  though  the  defen- 
dant might  controvert  the  plaintiff's 
title  before  the  time  laid  in  the  demise, 
yet  for  the  time  between  the  demise 
laid,  and  the  execution  of  the  habere 
fanas,  the  defendant  in  the  ejectment  is 
liable,  whoever  was  in  possession,  unless 
the  profits  came  to  the  plaintiff.}  Nor 
will  it  be  evidence  in  trespass  for  mesne 
profits  against  a  person  who  entered 
sul)sequcnthj  to  the  ejectment,  unless  it 
be  proved  that  he  came  in  under  the 
defendant  in  ejectment,  so  as  to  make 
him  privy  to  the  judgment.  Doe  v. 
Harvey,  8  Bing.  242.  But  if  he  came 
in  under  the  defendant  in  ejectment,  it 
will  be  evidence.  Doe  v.  Whitconibe, 
8  Bing.  46.  {S.  P.  Jackson  v.  Stone,  13 
John^^on,  447;  Morgan  v.  Vurick,  8 
Wendell,  587:  and  though  the  plaintiff 


after  tlie  recovery  in  ejectment,  convey 
the  land  to  the  defendant,  he  may  still 
maintain  trespass  for  mesne  profits,  for 
the  tort  remains.  Fenn  d.  Dulfield  v. 
Stille,  1  Yeatcs,  154;  2  Dallas,  156. 
The  record  of  the  recovery  in  ejectment 
is  evidence  against  parties  and  privies; 
Chambers  v.  Lapsley,  7  Barr,  24;  but 
not  against  strangers  ;  Leland  v.  Tou- 
sev,  6  Hill.  328.}  [There  is  a  case  in  8 
Mee.  &  \V.  158,  of  Doe  d.  Parsons  v. 
Heather,  in  which  the  day  of  the  year 
was  wholly  omitted  in  laying  the  demise 
which  was  stated  to  have  been  on  the 
31st  October.  It  was  held  to  be  no 
ground  of  non-suit,  and  yet  not  an  amen- 
dable variance.  In  an  action  for  mesne 
profits,  such  a  record  would  probably 
have  been  inoperative  on  account  of  un- 
certainty.] 

It  is  stated  in  Aslin  v.  Parkin,  that 
"the  tenant  is  concluded  by  the  judg- 
ment, and  cannot  controvert  the  title;" 
and  this  was  long  considered  in  practice 
as  literally  true,  although  Vooght  v. 
Winch,  2  B.  &  A.  662;  Outram  v. 
Morewood,  3  East,  365;  Stafford  v. 
Clarke,  2  Bing.  381  ;  Hooper  v.  Hooper, 
M-Clell.  &  Young,  .509;  Wilson  v. 
Butler,  4  Bing.  N.  C.  756  ;  and  Bowman 
v.  Rostrom,  2  Ad.  &.  Ell.  295,  shew 
clearly  that  a  judgment  is,  generally 
spe;iking,  no  estoppel,  unless  pleaded  as 
such,  where  there  has  been  an  oppor- 
tunity of  doing  so,  see  post,  vol.  2. 
However,  it  has  been  lately  [since  the 
new  rules  of  pleading]  decided  that 
there  is  now  no  difference  in  thatre.*pect 
between  a  judgment  in  ejectment  and 
one  in  any  other  action.  Doe  v.  Hud- 
dart,  2  C.  M.  &  Rose.  316,  5  Tyrwh. 
846.  That  it  operates  as  an  estoppel 
when  pleaded  as  such  was  decided  in 
Doe  V.  Wright,  2  P.  &  Dav.  672;  10 
A.  &,  E.  763,  S.  C.  See  post,  vol.  2, 
note  to  Duchess  of  Kingston's  case. 
{See  Man  v.  Drexel,  2  Barr,  202,  2lM.} 
[But  the  replication  by  way  of  estoppel 
must  be  confined  to  the  period  after  ;he 
day  ol"  the  demise  in  the  ejectment.] 
{Doe  v.  Wellsman,  2  Exch.  368  } 

{"  The  right  to  mesne  profits  is  a  ne- 
cessary consequence  of  a  recovery  in 
ejectment;  and  the  defendant  could  not 
set  up  a  title  in  bar,  even  if  he  clearly 
had  a  better  title ;"  Benson  and  others 
V.  Matsdorf,  2  Johnson,  369  ;  Jackson  v. 
Randall,  11  id.  405;  Van  Alen  v.  Ro- 
gers; Lloyd  V.  iVourse  and  wife,  2 
Rawle,  49;  Chambers  v.  Lapsley,  7 
Barr,  24  :  and  this  is  equally  the  case 


ASLIN     V.     TAR  KIN. 


520 


where  the  jiulgment  in  ejectment  iias 
gone  by  default:  Caron  v.  Abee),  3 
Johnson,  461  :  Lnngendyck  and  wife  v. 
Burhans,  11  id.  461; — in  fact,  the  judg- 
ment in  ejectment  has  just  tlie  same 
effect  as  other  judgments;  Chirac  v. 
Reinecker,  But  there  is  this  differ- 
ence, as  respects  the  action  for  mesne 
profits,  between  the  case  where  the 
judgment  in  ejectment  has  gone  by  de- 
fault against  the  casual  ejector,  and 
where  it  has  been  given  after  the  con- 
sent-rule lias  been  entered  into,  that,  as 
trespass  is  an  action  brought  for  an  in- 
jury to  the  possession,  it  cannot  be  main- 
tained by  one  who  is  disseised,  or  out  of 
possession,  until  he  has  revested  his  pos- 
session by  entry,  which  entry  relates 
back  to  the  time  of  the  right  accrued, 
or,  more  correctly  speaking,  converts 
the  original  disseisin  into  a  trespass; 
Ilarker  v.  \Vhitaker,5  Walts,  474,  476; 
Reid  V.  Stanley,  6  Watts  &.  Sergeant, 
869,  376  ;  Dewey  v.  Osbourne,  4  Cowen, 
329;  Morgan  v.  Varick,  8  Wendell, 
5y7  ;  Cox  et  al.  v.  Callender,  9  Massa- 
chusetts, 533:  Accordingly,  as  the  con- 
sent-rule confesses  entry,  judgment,  after 
that,  is  sufficient,  alone,  to  sustain  tres- 
pass; but  on  judgment  by  default  against 
the  casual  ejector,  there  must  be  an 
entry,  or  a  delivery  of  possession  by  writ, 
before  trespass  can  be  brought.  Lessee 
of  Brown  v.  Galloway,  1  Peters's  C.  C. 
291;  Jackson  v.  Combs,  7  Cowen,  36.} 

In  one  case,  the  action  of  trespass  for 
mesne  profits  is  rendered  unnecessary 
by  statute  1  G.  4,  c.  87,  s.  2.  When,  in 
ejectment  broughl  by  landlord  against 
tenant,  the  tenant  or  his  attorney  has 
been  served  with  due  notice  of  trial,  the 
plaintit}' will  not  be  nonsuited,  in  case 
of  the  tenant's  non-appearance.  And 
whether  the  tenant  appear  or  no,  the 
plaintiff  after  proving  his  title,  may  go 
on  to  prove  the  mesne  profits  down  to 
the  day  of  the  verdict,  or  some  preced- 
ing day  to  be  specially  mentioned 
therein,  and  will  recover  the  land,  toge- 
ther with  the  mesne  profits  as  damages: 
and  it  is  provided  that  this  shall  not  bar 
the  landlord  from  bringing  trespass  for 
the  mesne  profits  which  shall  accrue 
i'rom  the  verdict,  or  the  day  specified 
therein,  down  to  the  day  of  delivery  of 
possession  of  the  premises  recovered  in 
the  ejectment.  [It  is  not  necessary  to 
prove  notice  of  trial  in  order  to  let  the 
plaintiff'  into  proof  of  the  mesne  profits 
under  this  act.  Doe  d.  Thompson  v.  llob- 
son,  12  A.  &  E.  136] 

Vol.  I.— 34 


In  Aslin  v.  Parkin,  the  costs  of  the 
previous  ejectment  (where  judgment,  as 
will  be  remembered,  went  by  default) 
were  included  in  the  declaration  in  tlic 
action  of  trespass  for  mesne  profits  as 
special  damage.  See  Doe  v.  Davis,  1 
Esp.  358;  Brooke  v.  Bridges,  7  B.  M. 
471.  In  Nowell  v.  Roake,  7  B.  &  C. 
404,  an  ejectment  was  brought  in  the 
Common  Pleas,  and  judgment  given  for 
the  defendant,  which  was  reversed  on 
error.  The  plaintiff  brought  trespass  for 
mesne  profits  in  the  King's  Bench,  and 
recovered  the  costs  in  error,  as  between 
attorney  and  client,  although  the  Court 
of  Error  itself  could  not  have  given  costs  ; 
Bell  V.  Potts,  5  East,  49;  Wyrie  v.  Sta- 
pleton,  Sir.  615.  [But  see  Doe  v.  Filli- 
ter,  13  M.  &  W.  80,  per  cur.]  If  the 
ejectment  was  defended,  the  taxed  co.-ts 
are  recoverable  as  damages  in  this  ac- 
tion ;  '"Doe  v.  Davis,  Symonds  v,  r%9pq-i 
Page,  1  C.  &J.  :?,9;  butnoca-/?-a  L  J 
costs  are  so,  Doe  v.  Davis,  1  Esp.  358  ; 
Brooke  v.  Bridges,  7  B.  M.  471 ;  Doe 
V.  Hare,  2  Dowl.  P.  C.  245;  [and 
where  the  plaintiff  delayed  to  tax  his 
costs,  in  the  hope  of  recovering  unta.xed 
costs,  the  court  would  not  compel  him 
indeed  to  tax  them,  but  recommended  an 
application  for  the  delivery  of  the  plain- 
tiff^'s  bill,  and  to  tax  it  at  llie  defendant's 
instance,  Doe  v.  Filliter,  11  M.  &  W.  80, 
which  having  been  done,  the  defendant 
paid  into  court  the  amount  of  the  taxed 
costs,  and  it  was  liolden  tliat  the  plaintiff 
could  recover  no  more.  Doe  v.  Filliter, 
13  M.  &  W.80.] 

In  estimating  the  damages,  the  jury 
are  also  allowed  to  take  into  considera- 
tion the  trouble  and  inconvenience  sus- 
tained by  the  plaintiff",  in  consequence  of 
the  defendant's  trespasses,  over  and  above 
the  mere  rent  of  the  premises,  so  as  com- 
pletely to  compensate  him  for  the  injury 
he  has  sustained.  Goodtille  v.  Tombs, 
3  Wils.  121.  This  action  could  not  for- 
merly have  been  brought  against,  or  by, 
an  executor  or  administrator,  the  rule 
actio  personalis  moritur  cum  persona. 
being  applicable  to  it.  But  by  3  tSz.  4 
W.  4,  c.  42,  s.  3,  it  now  may,  provided 
it  be  brought  within  six  munths  after  the 
defendant  shall  have  taken  administra- 
tion on  himselt",  and  provided  the  tres- 
passes were  committed  within  six  months 
before  the  death  of  the  trespasser;  and 
by  the  same  section  it  may  be  brought  by 
an  executor,  provided  the  trespasses 
were  committed  within  six  months  before 
the  death,  and  the  action  be  commenced 


530 


SMITHS     LEADING    CASES, 


within  .1  yoar  after  the  death.  By  the 
same  i^tatute,  money  may  be  paid  into 
court,  in  such  an  action,  under  a  Judge's 
order. 

{In  Denn  v.  Chubb,  1  Coxe,  466,  the 
assessment  of  mesne  profits,  (which  were 
thpre  recovered   in  ejectment  from  the 
lime  of  demise  laid)  was  allowed  to  in- 
clude all  the  plaintiff's  reasonable  and 
necessary  e.xpcnses,  taking   in    counsel 
fees;  and  in  Baron  v,  Abeel,  3  Johnson, 
481,  the  costs  of  the  previous  ejectment. 
In   Kentucky,  the  principle  established 
is,  that  the  plaintilf  m  an  action  for  mesne 
jjroflls,  is  entitled  to  be   reimbursed   in 
such  amount  as  he  has  in  good  faith  been 
compelled  to  pay  in  obtaining,  by  legal 
means,  the  restoration  of  the  property 
which  the  defendant  has  wrongfully  ta- 
ken or  withheld  from  him :  and  he  may, 
therefore,  recover  any  counsel  fee  which 
he  has  paid,  or  bound  himself  to  pay,  in 
respect  to  the  ejectment,  if  such  fee  be 
not  unreasonable.     Doe,  &c.  v.  Perkins, 
H  B.  Monroe,  199,  200.     In   Maryland, 
the  measure  of  damages  is  the  rent ;  torts 
done  to  the   properly   being  properly  re- 
mediable in  a  separate  action  of  trespass; 
Gill  V.  Cole,  1   Harris  &  Johnson,  403; 
elsewhere,  the  plaintiti'  is  not  limited  to 
this,  but  may  recover  beyond   the  rent; 
Dewey  v.  Osborne;  and  for  all  actual 
daihjage  ;   Houston  v.  Wickersham.     As 
to  the  general  measure  of  the  damages, 
in  Lessee  of  Brown  v.  Galloway,  Judge 
Washington  said,  that  there  is  no  gen- 
eral rule,  but  the  jury  will  decide  from 
all  the  circumstances;  and  in  Murray  v. 
(ioverneur,   2  Johnson's  Cases,  43S,  it 
was  said  that  trespass  lor  mesne  profits 
"  is  a  liberal  and   equitable  action,  and 
will    allow   of  every  kind  of  equitable 
defence."     See  the  principle  of  equity 
strikingly  applied   in  Ewak  v.  Gray,  0 
Walts,  427.  See  also  Alexander  v.  Herr, 
1  Jones,  537.     The  question  of  compen- 
sation for  improvements  is  one  of  con- 
siderable interest,  inasmuch  as  there  is  a 
conflict  between  the  civil  and  common 
law    on    the    subject.      The    following 
points  seem  to  be  settled.     In  the  action 
for  mesne  profits,  the  value  that  repairs 
or   improvements   are    to    the    plaintiff, 
may  be  set  off,  to  the  extent  of  the  plain- 
tiff ^s  claim  for  7nes7ie  profits,  if  llie  de- 
fendant was  an  innocent,  bona  fide  pos- 
sessor,  and    not    otherwise :    Green    v. 
Biddle,  8  Wheaton,  1,  where  the  subject 
is  ably  considered  by  Wasuington,  J. ; 
and    see   Hylton   v.   Brown,   MuTay  v. 
Gouverneur  et  al. ;    Frear  v.   Harden- 


bergh,  5  Johnson,  272;  Jackson  v. 
Loomis,  4  Cowen,  169;  Marie  v.  Sem- 
ple,  Addison,  215;  Huston  v.  Wicker- 
sham ;  Dowd  v.  Fawcelt,  4  Devereux, 
92:  But  beyond  this,  at  law,  compensa- 
tion is  not  recoverable  for  improvements, 
if  the  occupancy  were  under  a  void  title ; 
Green  v.  Biddle;  see  M'Kce  v.  Lam- 
berlon,  2  Watts  &.  Sergeant,  107;  Jack- 
sou  v.  Loomis:  And  equity  interferes  to 
clog  a  recovery  with  conditions  of  com- 
pensation only,  1,  where  there  is  fraud, 
and,  2,  where  the  claimant's  title  is 
only  equitable,  and  being  obliged  to  ask 
the  aid  of  equity,  he  will  be  compelled 
to  do  equity  to  the  occupant.  See 
Werkheisor  v.  Werkheiser  and  others, 
3  Kawle,  326,  334.  See  the  whole 
subject  in  Green  v.  Biddle ;  South- 
all  V.  M'Keand  et  al.,  1  Washington, 
336;  Pugh's  Heirs  v.  Bell's  Heirs, 
1  J.  J.  Marshall,  399;  Putnam  v. 
Ritchie,  6  Paige,  390;  Bright  v.  Boyd, 
1  Story,  478.  In  the  last  case,  in  equity. 
Story,  J.,  inclined  to  adopt  the  civil 
law  principle  further,  and  perhaps  to  its 
full  extent,  and  to  compel  compensation 
for  valuable  improvements,  where  the 
occupant  had  held  "under  a  title  which 
turns  out  to  be  defective,  he  having  no 
notice  of  the  defect;"  but  the  numerous 
extracts  from  digests  of  Scotch  and 
Roman  law  which  are  relied  on  for  that 
opinion,  furnish  no  answer  to  the  obser- 
vation of  Washington,  J.,  in  Greert  v. 
Biddle,  that  to  clog  the  owner's  recove- 
ry of  his  land  with  the  necessity  of  pay- 
ing before  he  gets  it,  is  to  take  from  a 
man  the  enjoyment  of  his  legal  property 
without  any  act  or  default  on  his  part; 
which  is  against  all  reason  and  justice. 
The  land  and  the  improvements  have 
become  inseparable  by  the  act  of  the 
improver  :  the  equity  of  the  owner  to 
have  his  land  is  at  least  as  clear  as  the 
equity  of  the  other  to  have  the  value  of 
his  improvements;  and  the  former  has 
the  legal  title  to  both.  There  cannot 
be  presumed  entire  ignorance  of  the  de- 
fect, whore  there  is  a  better  legal  title 
outstanding;  for  an  occupant  is  bound, 
both  in  law  and  equity,  to  know  all  legal 
defects  in  his  title.  See  Collins  and 
others  v.  Rush,  7  S.  &  R.  147  ;  Allen 
v.  Flock,  2  Penrose  &  Watts,  L59;  and 
the  remarks  of  Kennedy,  J.,  in  Coney 
V.  Owen,  6  Watts,  435,  444,  on  the 
equity  of  improving  men  out  of  their 
rights;  and  Folk  v.  Beidleman,  id. 
339;  and  Lewis  v.  Bradford,  10  id. 
67,81.} 


A  S  L  I  N    V.     PARKIN. 


531 


When  the  action  is  brought,  as  in  As- 
lin  V.  Parkin,  in  the  name  of  a  fictitious 
plaintiff,  the  court  will  stay  proceedings, 
until  security  be  given  for  the  defend- 
ant's costs,  otherwise  he  would  have  no 
means  of  recovering  them :  B.  N.  P. 
89.  (S.  P.  Jackson  v.  Peer,  4  Co  wen, 
147. } 

It  is  remarked  in  Aslin  v.  Parkin,  that 
as  to  the  length  of  time  the  defendant 
has  been  in  possession,  the  judgment  in 
ejectment  proves  nothing;  the  consent 
rule,  however,  where  there  is  one,  may 
be  put  in,  and  will  show  the  defendant 
to  have  been  in  possession  at  the  time 
of  the  service  of  the  declaration  in  eject- 
ment. Doe  v.  Gibbs,  2  C.  &.  P.  61.5. 
{Jackson  v.  Combs,  7  Covven,  36.  See 
Ainslie  v.  The  Mayor,  &c.,  of  iNew  York, 
1  Barbour's  S.  Ct.  169;}  [actual  posses- 
sion by  the  defendant  is  not  necessary  in 
this  action,  any  more  than  in  use  and 
occupation.  Possession  by  tenant  will 
render  the  landlord  liable.  Doe  v.  Har- 
low, 1-2  A.  &.  E.  40.] 

One  consequence  of  the  plaintiff  in 
ejectment  being  a  fictitious  person,  is, 
that  an  ejectment  may  be  brought  on 
the  demise  of  one  partner  against  the 
firm;  for  the  plaintiff  being  John  Doe, 
and  not  his  lessor,  the  ordinary  rule  that 
the  same  person  cannot  at  once  be 
plaintiff  and  defendant,  does  not  apply. 
Francis  v.  Doe,  4  .M.  &  W.  381.  [And, 
in  like  manner,  it  may  be  brought  on 
the  demise  of  a  husband  against  his 
wife.  Doe  d.  Merigan  v.  Daly,  8  Q,.  B. 
934] 

{It  was  ruled  by  Judge  Washington, 
that,  by  giving  notice,  the  plaintiff  may 
always  recover  the  value  of  the  mesne 
profits  in  the  ejectment ;  Lessee  of  Bat- 
tin  v.  Bigelow,  1  Peters's  C.  C.  452; 
and  that  where  the  plaintiff's  title  has 
expired  before  trial,  he  may  proceed 
for  damages  for  the  trespass  and  for 
♦  mesne  profits;  Lessee  of  Brown  v.  Gal- 
loway, id.  292 ;  but  probably  in  the  lat- 
ter case  also,  notice  should  be  given ; 
else,  the  practice  would  be  to  enter 
judgment  for  nominal  damages  and  full 
costs;  Murray  v.  Garretson,  4  Sergeant 


&  Rawle,  130 ;  or  to  enter  the  regular 
judgment,  with  perpetual  stay  of  the 
writ  of  possession ;  Jackson  v.  Daven- 
port, 18  Johnson,  29-5,  and  to  leave  the 
plaintiff  to  his  action  of  trespass  there- 
upon. In  like  manner,  in  Pennsylvania, 
if  notice  be  given.  Cook  v.  Nicholas,  2 
Watts  &  Sergeant,  27,  the  plaintiff 
may  recover  for  mesne  profits  down  to 
the  time  of  the  judgment;  Dawson  v. 
M'Gill,  4  Wharton,  230 :  but  the  re- 
marks of  Huston,  J.,  in  Huston  v.  Wick- 
ersham,  questioning  the  regularity  of 
this  practice,  certainly  have  force,  and 
point  to  the  propriety  of  requiring  the 
claim  to  mesne  profits  to  be  suggested  of 
record,  and  notice  of  it  to  be  endorsed 
upon  the  declaration  or  writ.  In  N-nv 
Jersey  and  Connecticut,  Dennv.  Chubb, 
1  Coxe,  446,  Starr  v.  Pease,  8  Connec- 
ticut, 541,  the  same  practice  is  allowed  ; 
but  in  the  latter,  damages  are  recover- 
able only  down  to  the  issuing  of  the  writ. 
In  Vermont,  by  statute  damages  are  re- 
covered with  the  possession  in  lieu  of 
mesne  profits;  but  no  damages  are  reco- 
vered unless  the  possession  is ;  i.  e.  unless 
the  title  continues  to  the  time  of  judg- 
ment. See  Burton  v.  Austin  &  Blake, 
4  Vermont,  105;  Smith  v.  Benson,  9  id. 
105.  In  New  York,  the  action  of  tres- 
pass for  mesne  profits,  is  abolished  by  2 
R.  S.  310,  s.  43,44:  and  the  plaintiff 
recovers  by  suggesting  his  claim  on  the 
record  of  the  judgment  in  ejectment, 
within  one  year:  See  Jackson  v.  Leo- 
nard, 6  Wendell,  534;  Broughton  v. 
Wellington,  10  id.  566;  and  the  plaintiff 
is  prevented  by  the  statute  from  recover- 
ing mesne  profits  for  more  than  six  years, 
and  the  defendant  need  not  plead  this 
statute  of  limitations.  Jackson  v.  Wood, 
24  id.  443.  But  this  statute  abolishing 
trespass  for  mesne  profits,  applies  only 
to  such  mesne  profits  the  right  to  which 
results  legally  from  the  recovery  in 
ejectment;  and  therefore  only  to  cases 
where  the  claim  for  mesne  profits  is 
against  the  same  persons  who  were  de- 
fendants in  the  ejectment;  Leland  v. 
Tousey.  6  Hill,  328.} 

|H.  B.  W.} 


532  smith's   leading    cases. 


[=^=270] 


*CARTER    V.   BOEIIM. 


EASTER.— 5  GEORGE  3. 
[REPORTED   3    BURR.    1905.] 

Insurance  on  Fort  Marlborough  against  foreign  capture,  effected  by  its  Governor. 
The  weakness  of  the  furt,  and  tlie  probability  of  its  being  taken  by  the  French, 
and  that  the  insured  knew  tliese  facts,  but  had  not  communicated  them,  were 
offered  to  be  proved  as  a  defence  to  an  action  on  the  policy.  It  was  also  objected 
that  the  insurance  was  against  public  policy.  The  plaintiff  proved  that  the 
ofRce  of  Governor  was  mercantile,  not  military;  and  that  the  fort  was  nevef 
calculated  to  resist  European  enemies.  Held  that  the  jury  were  justified  in 
finding  for  the  plaintiff. 

The  opinion  of  an  insurance  broker  as  to  the  materiality  of  the  facts  not  commu- 
nicated was  thought  inadmissible  as  evidence. 

What  concealments  vitiate  a  policy. 

This  was  an  insurance  cause,  upon  a  policy  underwritten  by  Mr.  Charles 
Boehm,  of  interest,  or  no  interest ;  without  henrfit  of  saliage.'\  The  insu- 
rance was  made  by  the  plaintiff,  for  the  benefit  of  his  brother,  Governor 
George  Carter. 

It  was  tried  before  Lord  Man^Jiehl  at  Guildhall;  and  a  verdict  was  found 
for  the  plaintiff  by  a  special  jury  of  merchants. 

On  Saturday,  the  19th  of  April  last,  Mr.  Recorder  Eyre,  on  behalf  of 
the  defendant,  moved  for  a  new  trial. 

His  objection  was,  "that  circumstances  were  not  suflSciently  disclosed." 

A  rule  was  made  to  shew  cause  :  and  copies  of  letters  and  depositions 
were  ordered  to  be  left  with  Lord  Mansfield. 

N.  B.  Four  other  cases  depended  upon  this. 
^oTi-i       *The  counsel  for  the  plaintiff,  viz.  Mr.  Morton,  Mr.  Dunning, 
L        -I  and  Mr.  Wallace,  shewed  cause  on  Thursday,  the  first  of  this  month. 
But  first. 

Lord  Mansfield  reported  the  evidence.  That  it  was  an  action  on  a  policy 
of  insurance  for  one  year;  viz.  from  16th  of  October,  1759,  to  lUth  of 
October,  1760,  for  the  benefit  of  the  Governor  of  Fort  Marlborough,  George 
Carter,  against  the  loss  of  Fort  Marlborough,  in  the  island  of  Sumatra  in 
the  East  Indies,  by  its  being  taken  by  a  foreign  enemy.  The  event  hap- 
pened :  the  fort  was  taken,  by  Count  D'Estaign,  within  the  year. 

The  first  witness  was  Cawthorne,  the  policy-broker,  who  produced  the 
memorandum  given  by  the  Governor's  brother,  the  plaintiff,  to  him :  and 
the  use  made  of  these  instructions  was  to  shew  "that  the  insurance  was 
made  for  the  benefit  of  Governor  Carter,  and  to  insure  him  against  the 
taking  of  the  fort  by  a  foreign  enemy." 

t  A  policy  containing  these  words  would  now  be  illegal,  in  consequence  of  )4  Geo.  3, 
c.  33,  against  wager  policies,  Patterson  v.  Powell,  9  Bing.  32. 


CARTER     V.     B  O  E  H  M.  533 

Both  sides  liad  been  long  iu  Chancery:  and  the  Chancery  evidence  on 
both  sides  was  read  at  the  trial. 

It  w;is  objected,  on  behilf  of  the  defendant,  to  be  a  fraud,  by  conceal- 
ment of  circumstances  which  ought  to  have  been  disclosed;  and  particularly 
the  weakness  of  the  fort,  and  the  probability  of  its  being  attacked  by  the 
French :  which  concealment  was  ofi'ered  to  be  proved  by  two  letters.  The 
first  was  a  letter  from  the  Governor  to  his  brother  Roger  Carter,  his  trustee, 
the  plaintiff  in  this  cause :  the  second  was  from  the  Governor  to  the  East 
India  Company. 

The  evidence  in  reply  to  this  objection  consisted  of  three  depositions  iu 
Chancery,  setting  forth  that  the  Governor  had  20,000?.  in  effects,  and  only 
insured  10,000/. ;  and  that  he  was  guilty  of  no  fault  in  defending  the  fort. 

The  first  of  these  depositions  was  Captain  Tryon's  :  which  proved  that 
this  was  not  a  fort  proper  or  designed  to  resist  European  enemies ;  but  only 
calculated  for  defence  against  the  natives  of  the  island  of  Sumatra ;  and 
also  that  the  Governor's  office  is  not  military,  but  only  mercantile ;  and 
that  Fort  Marlborough  is  only  a  subordinate  factory  to  Fort  St.  George. 

There  was  no  evidence  to  the  contrary.  And  a  verdict  was  found  for  the 
plaintiff,  by  a  special  jury. 

After  his  lordship  had  made  his  report, 

*The  counsel  for  the  plaintiff  proceeded  to  shew  cause  against  a  r^^.o-on 
new  trial.  *- 

They  argued,  that  there  was  no  such  concealment  of  circumstances  (as 
the  weakness  of  the  fort,  or  the  probability  of  the  attack)  as  would  amount 
to  a  fraud  sufficient  to  vitiate  this  contract :  all  which  circumstances  were 
universally  known  to  every  merchant  upon  the  Exchange  of  London.  And 
all  these  circumstances,  they  said,  were  fully  considered  by  a  special  jury 
of  merchants,  who  are  the  proper  judges  of  them. 

And  Mr.  Dunning  laid  it  down  as  a  rule—"  That  the  insured  is  only 
obliged  to  discover  facts ;  not  the  ideas  or  speculations  which  he  may  enter- 
tain upon  such  facts." 

They  said,  this  insurance  was,  in  reality,  no  more  than  a  wager;  "whe- 
ther the  French  would  think  it  their  interest  to  attack  this  fort ;  and  if 
they  should,  whether  they  would  be  able  to  get  a  ship  of  war  up  the  river, 
or  not." 

Sir  Fletcher  Korton  and  Mr.  Ptecorder  Eyre  argued,  contra,  for  the 
defendant,  the  underwriter.  * 

They  insisted,  that  the  insurer  has  a  right  to  know  as  much  as  the  insured 
himself  knows. 

They  alleged,  too,  that  the  broker  is  the  sole  agent  of  the  insured. 

These  are  general,  universal  principles,  in  all  insurances. 

Then  they  proceeded  to  argue  in  support  of  the  present  objection. 

Tiic  broker  had,  they  said,  on  being  cross-examinSd,  owned  that  he  did 
not  believe  that  the  insurer  would  have  meddled  with  the  insurance,  if  he 
had  seen  these  two  letters. 

All  the  circumstances  ought  to  be  disclosed. 

This  wager  is  not  only  "  whether  the  fort  shall  be  attacked ;"  but,  "whe- 
ther it  shall  be  attacked  and  taken." 

Whatever  really  increases  the  risk  ought  to  be  disclosed. 

Then  they  entered  into  the  particulars  which  had  been  here  kept  con- 


534  smith's  leading  cases. 

cealed.  And  they  insisted  strongly,  that  the  phiintiff  ought  to  have  disco- 
vered the  weakness  and  absolute  indefensibility  of  the  fort.  In  this  case, 
as  against  the  insurer,  he  was  obliged  to  make  such  discovery;  though  he 
acted  for  the  Governor.  Indeed,  a  Governor  ought  not,  in  point  of  policy, 
r*97^n  to  be  permitted  to  insure  at  all :  but  if  he  *is  permitted  to  insure, 
^  "     -'or  will  insure,  be  ought  to  disclose  all  facts. 

It  cannot  be  supposed  that  the  insurer  would  have  insured  so  low,  at  ■il. 
per  cent.,  if  he  had  known  of  these  letters. 

It  is  begging  the  question  to  say,  ''that  a  fort  is  not  intended  for  defence 
against  an  enemy."  The  supposition  is  absurd  and  ridiculous.  It  must  be 
presumed  that  it  was  intended  for  that  purpose  :  and  the  presumption  was 
''that  the  fort,  the  powder,  the  guns,  &c.,  were  in  a  good  and  proper  condi- 
tion." If  they  were  not,  (and  it  is  agreed  that  in  fact  they  were  not,  and 
that  the  Governor  knew  it,)  it  ought  to  have  been  disclosed.  But  if  he  had 
disclosed  this,  he  could  not  have  got  the  insurance.  Therefore,  this  was  a 
fraudulent  concealment :  and  the  underwriter  is  not  liable. 

It  does  not  follow,  that  because  he  did  not  insure  his  whole  property ; 
therefore  it  is  good  for  what  he  has  judged  proper  to  insure.  He  might 
have  his  reasons  for  insuring  only  a  part,  and  not  the  whole. 

Cur.  adv.  vult. 

Lord  MansJieM  now  delivered  the  resolution  of  the  Court. 

This  is  a  motion  for  a  new  trial. 

In  support  of  it,  the  counsel  for  the  defendant  contend,  "that  some  cir- 
cumstances in  the  knowledge  of  Governor  Carter,  not  having  been  men- 
tioned at  the  time  the  policy  was  underwrote,  amount  to  a  concealment, 
which  ought,  in  law,  to  avoid  the  policy." 

The  counsel  for  the  plaintiff  insist,  ''  that  the  not  mentioning  these  parti- 
culars does  not  amount  to  a  concealment  which  ought,  in  law,  to  avoid  the 
policy;  either  as  a  fraud  or,  as  varying  the  contract." 

1st.  It  may  be  proper  to  say  something,  in  general,  of  concealments 
which  avoid  a  policy. 

2ndly.  To  state  particularly  the  case  now  under  consideration. 

Srdly.  To  examine  whether  the  verdict  which  finds  this  policy  good, 
although  the  particulars  objected  were  not  mentioned,  is  well  founded. 

First.  Insurance  is  a  contract  upon  speculation. 
r*o'-j.i  -^'^^  special  facts,  upon  which  the  contingent  chance  is  to  *be  com- 
L  "  J  puted,  lie  most  commonly  in  the  knowledge  of  the  insured  only  : 
the  underwriter  trusts  to  his  representation,  and  proceeds  upon  confidence 
that  he  does  not  keep  back  any  circumstance  in  his  knowledge,  to  mislead 
the  underwriter  into  a  belief  that  the  circumstance  does  not  exist,  and  to 
induce  him  to  estimate  the  risk  as  if  it  did  not  exist. 

The  keeping  hack  &uch  circumstance  is  a  fraud,  and  there/ore  the  policy 
is  void.-\  Although  the  suppression  should  happen  through  mistake,  with- 
out any  fraudulent  intention ;  yet  still  the  underwriter  is  deceived,  and  the 
policy  is  void  ;  because  the  risk  run  is  really  different  from  the  risk  under- 
stood and  intended  to  be  run  at  the  time  of  the  agreement. 

The  policy  would  equally  be  void,   against  the  underwriter,  if  he  con- 

(t)  Fitzhcrbcrt  v.  Mather,  1   T.  R.  12. 


CARTER     V.     B  0  E  II  M.  535 

cealed ;  as  if  he  insured  a  ship  ou  her  V03fage,  which  ho  privately  knew  to 
be  arrived :  and  an  action  would  lie  to  recover  the  premium. 

The  governing  principle  is  applicable  to  all  contracts  and  dealings. 
Good  faith  forbids  either  party,  by  concealing  what  he  privately  knows, 
to  draw  the    other  into   a  bargain   from   his  ignorance   of  that  fact   and 
his  believing  the  contrary. 

But  either  party  may  be  innocently  silent  as  to  grounds  open  to  both  to 
exercise  their  judgment  upon.  Aliud  est  celare  ;  alkul  taceic:  ncque  enim 
id  est  celarc  qiiirquld  rrf'tccas ;  sed  cum  quod  tu  scias,  id  vjnorare  emolu- 
mend  tui  caum  veils  eos,  quoriim  interslt  id  scire. 

This  definition  of  concealment,  restrained  to  the  efficient  motives  and  pre- 
cise subject  of  any  contract,  will  generally  hold  to  make  it  void,  in  favour 
of  the  party  misled  by  his  ignorance  of  the  thing  concealed. 

There  are  many  matters,  as  to  which  the  insured  may  be  innocently 
silent;  he  need  not  mention  what  the  underwriter  knows — Scicntia  utrin- 
que ]iar pares  contrahentcs  facit. 

An  underwriter  cannot  insist  that  the  policy  is  void,  because  the  insured 
did  not  tell  him  what  he  actually  knew;  what  way  soever  he  came  to  the 
knowledge. 

The  insured  need  not  mention  what  the  underwriter  ought  to  know;f 
what  he  takes  upon  himself  the  knowledge  of;  or  what  he  waives  being 
informed  of. 

The  underwriter  needs  not  be  told  what  lessens  the  risk  "^'agreed  p^07p;-i 
and  understood  to  be  run  by  the  express  terms  of  the  policy.  He  L  ~  J 
needs  not  be  told  general  topics  of  speculation  :  as,  for  instance,  tlie 
underwriter  is  bound  to  know  every  cause  ivhich  ma^  occasion  natural  j^crds  ; 
as,  the  difficulty  of  the  voyage — the  kind  of  seasons — the  prohahili/y  of 
lightning,  hurricanes,  earthquakes,  &c.  He  is  bound  to  know  every  cause 
which  may  occasion  political  jicrils  ;  from  the  ruptures  of  states  ;  from  war, 
and  the  various  oj^erations  of  it.  He  is  bound  to  know  the  probability  of 
safety,  from  the  continuance  or  return  of  peace  ;  from  the  imbecility  of  the 
enemy,  through  the  iceakness  of  their  councils,  or  their  tvant  of  strength,  ^-c. 
If  an  underwriter  insures  private  ships  of  war,  by  sea  and  on  shore,  from 
ports  to  ports,  and  places  to  places,  anywhere,  he  needs  not  be  told  the  secret 
enterprises  they  are  destined  upon;  because  he  knows  some  expedition  must 
be  in  view;  and  from  the  nature  of  his  contract,  without  being  told,  Le 
waives  the  information.  If  he  insures  for  three  years,  he  needs  not  be 
told  any  circumstance  to  show  it  may  be  over  in  two :  or  if  he  in^uios  a 
voyage,  with  liberty  of  deviation,  he  needs  not  be  told  what  tends  to  show 
there  will  be  no  deviation. 

Men  argue  diff"erently,  from  natural  phenomena,  and  political  appear- 
ances :  they  have  difi"ereut  capacities,  difl'ereut  degrees  of  knowledge, 
and  different  intelligence.  But  the  means  of  informutiou  and  judging  are 
open  to  both  :  each  professes  to  act  from  his  own  skill  and  sagacity  ;  and, 
therefore,  neither  needs  to  communicate  to  the  other. 

The  reason  of  the  rule  which  obliges  parties  to  disclose  is  lo  prevent 
fraud,  and  to  encourage  good  faith.     It  is  adapted  to  such  facts  as  vary  the 

(t.  See  Elton  v.  Larkins,  8  Binpf.  198  ;  Friere  v.  VVoodhoiiso,  Holt,  .'J72;  Noble  v.  Ken- 
naway,  Dougl.  510  ;  Vallance  v.  Dt-war,  1  Camp.  51)3  ;  Stcwail  v.  Hell,  5  Li.  iV  A.  2'38  ; 
[Mackintosh  v.  Marshall,  11  M.  &  W.  110.] 


536  smith'.-    leading    cases. 

nature  of  the  contract;  which  one  jfi'ivaiil^ knows,  and  ihe  other  is  ignorant 
of,  and  has  no  reason  to  suspect 

The  question,  therefore,  must  always  be  '<  whetlicr  there  was,  under  all 
the  circumstances  at  the  time  the  policy  was  underwritten,  a  fair  represen- 
tation;  or  a  concealment;  fraudulent,  if  designed  ;  or,  though  not  designed, 
varying  materially  the  object  of  the  policy,  and  changing  the  risk  under- 
stood to  be  run." 

This  brings  me,  in  tbc  second  place,  to  state  the  ca.se  now  under  conside- 
ration. 

The  policy  is  against  the  loss  of  Fort  Marlborough,  from  being  destroyed 

•j-p-j  by,  taken  by,  or  surrendered  unto,  any  *European  enemy,  between 
L  "  -'  the  1st  of  October,  1759,  and  1st  of  October,  17G0.  It  was 
underwritten  on  the  9th  of  May,  1760. 

The  underwriter  knew  at  the  time  that  the  policy  was  to  indemnify,  to 
that  amount,  Roger  Carter,  the  Governor  of  Fort  Marlborough,  in  case  the 
event  insured  against  should  happen.  The  Governor's  instructions  for  the 
insurance,  bearing  date  at  Fort  Marlborough,  the  22d  of  September,  1759, 
were  laid  before  the  underwriter.  Two  actions  upon  this  policy  were  tried 
before  me  in  the  year  1762.  The  defendants  then  knew  of  a  letter  written 
to  the  East  India  Company  which  the  Company  offered  to  put  into  my 
hands ;  but  would  not  deliver  to  the  parties,  because  it  contained  some 
matters  which  they  did  not  think  proper  to  be  made  public. 

An  objection  occurred  to  me  at  the  trial,  <•' whether  a  policy  against  the 
loss  of  Fort  Marlborough,  for  the  benefit  of  the  Governor,  was  good;" 
upon  the  principle  which  does  not  allow  a  sailor  to  insure  his  wages. f 

But  considering  that  this  place,  though  called  a  fort,  was  really  but  a 
factury  or  settlement  for  trade;  and  that  he,  though  called  a  Governor,  was 
really  but  a  merchant;  considering,  too,  that  the  law  allows  a  captain  of  a 
ship  to  insure  goods  which  he  has  on  board,  or  his  share  in  the  ship,  if  he 
be  a  part-owner ;  and  the  captain  of  a  privateer,  if  he  be  a  part-owner,  to 
insure  his  share  :  considering,  too,  that  the  objection  did  not  lie,  upon  any 
ground  of  justice,  in  the  mouth  of  the  underwriter,  who  knew  him  to  be 
the  Governor  at  the  time  he  took  the  premium — and  as,  with  regard  to  prin- 
ciples of  public  convenience,  the  case  so  seldom  happens,  (I  never  saw  one 
before,)  any  danger  from  the  example  is  little  to  be  apprehended — I  did  not 
think  myself  warranted,  upon  that  point,  to  nonsuit  the  plaintiff;  especially, 
too,  as  the  objection  did  not  come  from  the  Bar. 

Though  this  point  was  mentioned,  it  was  not  insisted  upon  at  the  last  trial ; 
nor  has  it  been  seriously  argued,  upon  this  motion,  as  sufficient,  alone,  to 
vacate  the  policy;  and  if  it  had,  we  are  all  of  opinion  "that  we  are  not 
warranted  to  say  it  is  void  upon  this  account." 

Upon  the  plaintiff's  obtaining  these  two  verdicts,  the  underwriters  went 

-^_  -.  into  a  court  of  equity  ;  where  they  have  *had  an  opportunity  to 
L  ~  -^  siftcverylhingto  the  bottom,  to  get  every  discovery  from  the  Governor 
and  his  brother,  and  to  examine  any  witnesses  who  were  upon  the  spot.  At 
last,  after  the  fullest  investigation  of  every  kind,  the  present  action  came  on 
to  be  tried  at  the  sittings  after  last  term. 

t  i.  e.  Because  of  it.s  tendency  lo  (iiin'misii  hi.s  exertions  for  the  safut}'  of  tlio  Ihing 
insured.     Webster  v.  De  'Jastet,  7  T.  R.  157  ;  Wilson  v.  R.  E.  A.  Co.  i.'  Camp.  iVML 


CARTER    V.     BOEHM.  537 

The  plaintiff  proved,  without  contradiction,  that  the  place  called  Bcn- 
coolen,  or  Fort  Marlborough,  is  a  factory  or  settlement,  but  no  military  ft)rt 
or  fortress.  That  it  was  not  established  for  a  place  of  arms  or  defence 
against  the  attacks  of  an  European  enemy ;  but  merely  for  the  purpose  of 
ti-ade,  and  of  defence  against  the  natives.  That  the  fort  was  only  intended 
and  built  with  an  intent  to  keep  off  the  country  blacks.  That  the  only 
security  against  European  ships  of  war  consisted  in  the  difSculty  of  the 
entrance  and  navigation  of  the  river,  for  want  of  proper  pilots.  That  the 
general  state  and  condition  of  the  said  fort,  and  of  the  strength  thereof,  was, 
in  general,  well  known  by  most  persons  conversant  or  acquainted  with  India 
affairs,  or  the  state  of  the  Company's  factories  or  settlements  ;  and  could 
not  be  kept  secret  or  concealed  from  persons  who  should  endeavour,  by  pro- 
per inquiry,  to  inform  themselves.  That  there  were  no  apprehensions  or 
intelligence  of  any  act  by  the  French,  until  they  attacked  Nattal  in  Feb- 
ruary, 1760.  That  on  the  8th  of  February,  1760,  there  was  no  suspicion 
of  any  design"  by  the  French.  That  the  Governor  then  bought,  from  the 
witness,  goods  to  the  value  of  4,000?.,  and  had  goods  to  the  value  of  above 
20,000/.,  and  then  dealt  for  50,000/.  and  upwards.  That  on  the  1st.  of 
April,  1760,  the  fort  was  attacked  by  a  French  man-of-war  of  64  guns,  and 
a  frigate  of  20  guns,  under  the  Count  D'Estaign,  brought  in  by  Dutch 
pilots ;  unavoidably  taken  ;  afterwards  delivered  to  the  Dutch  ;  and  the 
prisoners  sent  to  Batavia. 

On  the  part  of  the  defendant,  after  all  the  opportunities  of  inquiry,  no 
evidence  was  offered  that  the  French  ever  had  any  design  \ipon  Fort  Marl- 
borough before  the  end  of  March,  1760 ;  or  that  there  was  the  least  intel- 
ligence or  alarm  <'  that  they  might  make  the  attempt,"  till  the  taking  of 
Nattal  in  the  year  1760. 

They  did  not  offer  to  disprove  the  evidence,  that  the  Governor  had  acted, 
as  in  full  security,  long  after  the  month  of  September,  1759  ;  and  had  turn- 
ed his  money  into  goods,  *so  late  as  the  8th  of  February,  1760.  ^,,_^-. 
There  was  no  attempt  to  show  that  he  had  not  lost  by  the  capture  L  "  J 
very  considerably  beyond  the  balance  of  the  insurance. 

But  the  defendant  relied  upon  a  letter,  written  to  the  East  India  Com- 
pany, bearing  date  the  10th  of  September,  1759,  which  was  sent  to  Eng- 
land by  the  Pitt,  Captain  Wilson,  who  arrived  in  May,  1760,  together  with 
the  instructions  for  insuring;  and  also  a  letter  bearing  date  the  22nd  of 
September,  1759,  sent  to  the  plaintiff  by  the  same  conveyance,  and  at  the 
same  time,  (^which  letters  his  lordship  repeated.)  (a) 

They  relied  too  upon  the  cross-examination  of  the  broker  who  negotiated 
the  policy,  "  that,  in  his  opinionrj"  these  letters  ought  to  have  been  shown, 

(rt)  TliC  former  of  them  notifies  to  the  East  India  Company,  that  the  French  iiad,  the  * 
preceding  year,  a  design  on  foot,  to  attempt  taldng  tliat  settlement  by  surprise;  and  that 
it  was  very  probable  they  might  revive  that  design.     It  confesses  and  represents  the  weaii- 
ness  of  the  fort;  its   being  sadly  supplied  with  stores,  arms,  and  ammunition;  and  the 
impracticability  of  maintaining  it  (in  its  then  state)  against  an  European  enemy. 

The  latter  letter  (to  his  brother)  owns  that  he  is  "  now  more  afraid  than  formerly  that 
the  French  should  attack  and  take  the  settlement;  for,  as  they  cannot  muster  a  force  to 
relieve  their  friends  at  the  coast,  they  may,  rather  than  remain  idle,  pay  us  a  visit.  It 
seems  they  had  such  an  intention  last  year."  And  therefore  he  desires  his  brother  to  get 
an  insurance  made  upon  his  stock  there. 

t  See  Rickards  v.  Murdock,  lU  B.  &  C.  5-27;  Campbell  v.  Richards,  5  B.  &  Ad.  846; 
2Nev.  &M.546. 


538  S  JI  I  T  H  '  S    LEADING    CASES. 

or  the  contents  disclosed;  and  if  they  had,  the  policy  would  not  have  been 
underwritten." 

The  defendant's  counsel  contended  at  the  trial,  as  they  have  done  upon 
this  motion,  <'  that  the  policy  was  void" — 

1st.  Because  the  state  and  condition  of  the  fort,  mentioned  in  the  Go- 
vernor's letter  to  the  East  India  Company,  was  not  disclosed. 

2ndly.  Because  he  did  not  disclose  that  the  French,  not  being  in  a  condi- 
tion to  relieve  their  friends  upon  the  coast,  were  more  likely  to  make  an 
attack  upon  this  settlement,  rather  than  remain  idle. 

Srdly.  That  he  had  not  disclosed  his  having  received  a  letter  of  the  4th 
of  February,  1759,  from  which  it  seemed  that  the  French  had  a  design  to 
take  this  settlement,  by  surprise,  the  year  before. 

They  also  contended  that  the  opinion  of  the  broker  was  almost  decisive. 

The  whole  was  laid  before  the  jury ;  who  found  for  the  plaintiff. 

Thirdly — It  remains  to  consider  these  objections,  and  to  examine  "  whe- 
ther this  verdict  is  well  founded." 

To  this  purpose  it  is  necessary  to  consider  the  nature  of  the  contract,  at 
the  time  it  was  entered  into. 

The  policy  was  signed  in  Ma?/,  1760.  The  contingency  was,  whether 
Fort  Marlborough  was  or  would  be  taken  by  an  European  enemy,  between 
October,  1759,  and  October,  1760. 

r*0'-Ql  -^^^  computation  of  the  risk  depended  upon  the  *chance,  "  whe- 
L  "  -'  ther  any  European  power  would  attack  the  place  by  sea."  If  they 
did,  it  was  incapable  of  resistance. 

The  underwriter  at  London,  in  May,  1760,  could  judge  much  better  of 
the  probability  of  the  contingency,  than  Governor  Carter  could  at  Fort 
Marlborough,  in  September,  1759.  He  knew  the  success  of  the  operations 
of  the  war  in  Europe.  He  knew  what  naval  force  the  English  and  French 
had  sent  to  the  East  Indies.  He  knew,  from  a  comparison  of  that  force, 
whether  the  sea  was  open  to  any  such  attempt  by  the  French.  He  knew, 
or  might  know,  everything  which  was  known  at  Fort  Marlborough,  in  Sep- 
tember, 1759,  of  the  general  state  of  affairs  in  the  East  Indies,  or  the  par- 
ticular condition  of  Fort  Marlborough,  by  the  ship  which  brought  the  orders 
for  the  insurance.  He  knew  that  ship  must  have  brought  many  letters  to 
the  East  India  Company ;  and  particularly  from  the  Governor.  He  knew 
what  probability  there  was  of  the  Dutch  committing  or  having  committed 
hostilities. 

Under  these  circumstances,  and  with  this  knowledge,  he  insures  against 
the  general  contingency  of  the  place  being  attacked  by  an  European  power. 

If  there  had  been  any  design  on  foot,  or  any  enterprise  begun,  in  Septem- 
ber, 1759,  to  the  knowledge  of  the  Governor,  it  would  have  varied  the  risk 
'  understood  by  the  underwriter ;  because,   not  being  told  of  a  particular 
design  or  attack  then  subsisting,  he  estimated  the  risk  upon  the  foot  of  an 
uncertain  operation,  which  might  or  might  not  be  attempted. 

But  the  Governor  had  no  notice  of  any  design  subsisting  in  September, 
1759.  There  was  no  such  design,  in  fact :  the  attempt  was  made  without  pre- 
meditation, from  the  sudden  opportunity  of  a  favourable  occasion,  by  the 
connivance  and  assistance  of  the  Dutch,  which  tempted  Count  D'Estaigu 
to  break  his  parole. 

This  bcin":  the  circumstances  under  which  the  contract  was  entered  into, 


CARTER    V.     BOEHM.  539 

we  shall  be  better  able  to  judge  of  the  objections  upon  the  foot  of  conceal- 
ments. 

The  first  concealment  is,  that  he  did  not  disclose  the  condition  of  the 
place. 

The  underwriter  knew  the  insurance  was  for  the  Governor.  He  knew 
the  Governor  must  be  acquainted  *with  the  state  of  the  place.  He  j-^^n^-. 
knew  the  Governor  could  not  disclose  it,  consistent  with  his  duty,  l-  "  J 
He  knew  the  Governor,  by  insuring,  apprehended  at  least  the  possibility  of 
an  attack.     With  this  knowledge,  without  asking  a  question,  he  underwrote. 

By  so  doing,  he  took  the  knowledge  of  the  state  of  the  place  upon  him- 
self. It  was  a  matter  as  to  which  he  might  be  informed  various  ways  :  It 
was  not  a  matter  within  the  private  Imowledge  of  the  Governor  only. 

But,  not  to 'rely  upon  that,  the  utmost  which  can  be  contended  is,  that 
the  underwriter  trusted  to  the  fort  beino;  in  the  condition  in  which  it  ought 
to  be  :  in  like  manner  as  it  is  taken  for  granted,  that  a  ship  insured  is  sea- 
worthy. 

What  is  that  condition  ?  All  the  witnesses  agree,  "  that  it  was  only  to 
resist  the  natives,  and  not  an  European  force."  The  policy  insures  against 
a  total  loss  ;  taking  for  granted  "  that  if  the  place  was  attacked,  it  would  be 
lost." 

The  contingency,  therefore,  which  the  underwriter  has  insured  against  is, 
"  whether  the  place  would  be  attacked  by  an  European  force ;"  and  not 
''  whether  it  would  be  able  to  resist  such  an  attack,  if  the  ships  could  get 
up  the  river." 

It  was  particularly  left  to  the  jury  to  consider,  "whether  this  was  the 
contingency  in  the  contemplation  of  the  parties  :"  they  have  found  that  it 
was. 

And  we  are  all  of  opinion,  <■'■  that,  in  this  respect,  their  conclusion  is 
agreeable  to  the  evidence." 

In  this  view,  the  state  and  condition  of  the  place  was  material,  only  in 
case  of  a  land  attack  by  the  natives. 

The  2nd  concealment  is,  his  not  having  disclosed,  that,  from  the  French 
not  being  able  to  relieve  their  friends  upon  the  coast,  they  might  make  them 
a  visit. 

This  is  no  part  of  the  case  :  it  is  mere  speculation  of  the  Governor's  from 
the  general  state  of  the  war.  The  conjecture  was  dictated  to  him  from  his 
fears.  It  is  a  bold  attempt  for  the  conquered  to  attack  the  conqueror,  in  his 
own  dominions.  The  practicability  of  it,  in  this  case,  depended  upon  the 
English  naval  force  in  those  seas  ;  which  the  underwriter  could  better  judge 
of  at  London,  in  May,  17G0,  than  the  Governor  could  at  Fort  Marlborough, 
in  September,  1759. 

*The  third  concealment  is,  that  he  did  not  disclose  the  letter  from  ^t^Qi-i 
Mr.  Winch,  of  the  4th  of  February,  1759,  mentioning  the  design  L  ""  -• 
of  the  French  the  year  before. 

What  the  letter  was  ;  how  he  mentioned  the  design  ;  or  upon  what  autho- 
rity he  mentioned  it ;  or  by  whom  the  design  was  supposed  to  be  imagined, 
does  not  appear.  The  defendant  has  had  every  opportuity  of  discovery ; 
and  nothing  has  come  out  upon  it,  as  to  this  letter,  which  he  thinks  makes 
for  his  purpose. 

The  plaintiff  offered  to  read  the  account  Winch  wrote  to  the  East  India 


540  smith's    leading   cases. 

Company  :  wliicli  was  objected  to;  and,  therefore,  not  read.  The  nature  of 
that  intelligence,  therefore,  is  very  doubtful.  But,  taking  it  in  the  strongest 
light,  it  is  a  report  of  a  design  to  surprise,  the  year  before ;  but  then  drop- 
ped. 

This  is  a  topic  of  mere  general  speculation ;  which  made  no  part  of  the 
facts  of  the  case  upon  which  the  insurance  was  to  be  made. 

It  was  said,  if  a  man  insured  a  ship,  knowing  that  two  privateers  were 
lying  in  her  way,  without  mentioning  that  circumstance,  it  would  be  a 
fraud;  I  agree  it.f  But  if  he  knew  that  two  privateers  had  been  there  the 
year  before,  it  would  be  no  fraud  not  to  mention  that  circumstance  :  because 
it  does  not  follow  that  they  will  cruise  this  year  at  the  same  time,  in  the 
same  place;  or  that  they  are  in  a  condition  to  do  it.  If  the  circumstance 
of  "  this  design  laid  aside"  had  been  mentioned,  it  would  have  tended  rather 
to  lessen  the  risk  than  increase  it :  for,  the  design  of  a  surprise  which  has 
transpired,  and  been  laid  aside,  is  less  likely  to  be  taken  up  again ;  espe- 
cially by  a  vanquished  enemy. 

The  jury  considered  the  nature  of  the  Governor's  silence,  as  to  these  par- 
ticulars :  they  thought  it  innocent;  and  that  the  omission  to  mention  them 
did  not  vary  the  contract.  And  we  are  all  of  opinion,  "  that,  in  this  respect, 
they  judged  extremely  right." 

There  is  a  silence,  not  objected  to  at  the  trial,  nor  upon  this  motion, 
which  might  with  as  much  reason  have  been  objected  to  as  the  two  last 
omissions ;  rather  more. 

It  appears  by  the  Governor's  letter  to  the  plaintiff,  "  that  he  was  prin- 
cipally apprehensive  of  a  Dutch  war."  He  certainly  had,  what  he  thought, 
r*oQoi  S^^^  grounds  for  this  *apprehension.  Count  D'Estaign,  being 
L  "  -^  piloted  by  the  Dutch,  delivering  the  fort  to  the  Dutch,  and  sending 
the  prisoners  to  Batavia,  is  a  confirmation  of  those  grounds.  And  probably 
the  loss  of  the  place  was  owing  to  the  Dutch.  The  French  could  not  have 
got  up  the  river  without  Dutch  pilots :  and  it  is  plain  the  whole  was  con- 
certed with  them.  And  yet,  at  the  time  of  underwriting  the  policy,  there 
was  no  intimation  about  the  Dutch. 

The  reason  why  the  counsel  have  not  objected  to  his  not  disclosing  the 
grounds  of  this  apprehension  is,  because  it  must  have  arisen  from  political 
speculation,  and  general  intelligence  :  therefore,  they  agree  it  is  not  neces- 
sary to  communicate  such  things  to  an  underwriter. 

Lastly  :  great  stress  was  laid  upon  the  opinion  of  the  broker. 

But  we  all  think  the  jury  ought  not  to  pay  the  least  regard  to  it.  It  is  mere 
opinion ;  which  is  not  evidence.  It  is  opinion  after  an  event.  It  is  opinion 
without  the  least  foundation  from  any  previous  precedent,  or  usage.  It  is 
an  opinion  which,  if  rightly  formed,  could  only  be  drawn  from  the  same  pre- 
mises from  which  the  court  and  jury  were  to  determine  the  cause:  and, 
therefore,  it  is  improper  and  irrelevant  in  the  mouth  of  a  witness. | 

There  is  no  imputation  upon  the  Governor,  as  to  any  intention  of  fi-aud. 
By  the  same  conveyance,  which  brought  his  orders  to  insure,  he  wrote  to 
the  Company  every  thing  which  he  knew  or  suspected :  he  desired  nothing 

t  Ace.  Beckwaitc  v.  Waljjrove,  cited  3  Taunt.  41  ;  see  Diii-rell  v.  Bederley,  1  Holt, 
263. 

t  Accord.  Campbell  v.  Rickards,  5  B.  &  Ad.  84G;  2  N.  &  M.  .'546;  overruling 
Rickards  v.  Murdock,  10  C.  &  C.  527.     See  Chapman  v.  Walton,  10  Bing.  57. 


CARTER    V.    B  O  E  H  M.  ^41 

to  be  kept  a  secret  which  he  wrote  cither  to  them  or  his  brother.  His  sub- 
sequent conduct,  down  to  the  8th  of  Tubruary  1760,  shewed  that  he  thought 
the  danger  very  improbable. 

The  reason  of  the  rule  against  concealments  is,  to  prevent  fraud  and  en- 
courage good  faith. 

If  the  defendant's  objections  were  to  prevail,  in  the  present  case,  the  rule 
would  be  turned  into  an  instrument  of  fraud. 

The  underwriter,  here,  knowing  the  Governor  to  be  acquainted  with  the 
state  of  the  place;  knowing  that  he  apprehended  danger,  and  must  have 
some  ground  for  his  apprehension ;  being  told  nothing  of  either ;  signed 
this  policy,  without  asking  a  question. 

If  the  objection  ''that  he  was  not  told"  is  sufficient  to  vacate  it,  he  took 
the  premium,  knowing  the  policy  to  be  *void ;  in  order  to  gain,  if  rjjfnqq-i 
the  alternative  turned  out  one  way  ;  and  to  make  no  satisfaction,  if  ■-  -' 
it  turned  out  the  other.  He  drew  the  Governor  into  a  false  confidence, 
"that,  if  the  worst  should  happened,  he  had  provided  against  total  ruin;" 
knowing,  at  the  same  time,  "  that  the  indemnity  to  which  the  Governor 
trusted  was  void." 

There  was  not  a  word  said  to  him  of  the  affairs  of  India,  or  the  state  of 
the  war  there,  or  the  condition  of  Fort  Marlborough.  If  he  thought  that 
omission  an  objection,  at  the  time,  he  ought  not  to  have  signed  the  policy 
with  a  secret  reserve  in  his  own  mind  to  make  it  void:  if  he  dispensed  with 
the  information,  and  did  not  think  this  silence  an  objection  then,  he  cannot 
take  it  up  now  after  the  event. 

What  has  often  been  said  of  the  Statute  of  Frauds  may,  with  more  pro- 
priety, be  applied  to  every  rule  of  law,  drawn  from  principles  of  natural 
equity,  to  prevent  fraud,  "  that  it  should  never  be  so  turned,  construed,  or 
used,  as  to  protect  or  be  a  means  of  fraud." 

After  the  fullest  deliberation,  we  are  all  clear  that  the  verdict  is  well 
founded;  and  there  ought  not  to  be  a  new  trial;  consequently  that  the  rule 
for  that  purpose  ought  to  be  discharged. 

Eule  discharged. 


This  case  is  inserted  on  account  of  It  is  mere  opinion,  which  is  not  evidence, 

tlie  masterly  exposition  of  some  of  the  It  is  opinion  after  an  event.    Itisopinion, 

leading' principles  of  insurance  law  con-  without  the   least  foundation  from  any 

tained    in    the  judgment   of   the    Lord  previous   precedent  or   usage.     It  is  an 

Chief  Justice.     It  would  not  be  proper  opinion  which,  if  rightly  formed,  could 

to  pass  from   if,  without   informing  the  be  drawn  only  from  the  same  premises 

reader  that  a  great  deal  of  controversy  from  which  the  court  and  jury  were  to 

has  since  taken  place  upon  one  of  the  determine  the  cause;  and,  therefore,  it 

subjects  incidentally  touched  upon  by  his  is  improper  and  irrelevant  in  the  mouth 

lordship,  viz.,  the  admissibility   of  the  of  a  witness."     Very  similar  were  the 

broker's  evidence  as  to  his  opinion  on  expres^sions  of  Gibbs,  C.  J.,  in  Durrell  v. 

the    materiality   of  the  facts    not  com-  Rederley,  Holt,  283 :  "It  is  my  opinion 

municated.       "Great   stress,"  says   his  that  the  evidence  of  the  underwriters, 

lordship,  "was    laid  on   the  opinion  of  who  were  called  to  give  their  opinion  of 

the  broker:  but  we  all  think  the  jury  the  materiality  of  the  rumours,  and  the 

ought  not  to  pay  the  least  regard  to  it.  elTect  they  would  have   had   upon  the 


542. 


smith's    leading    cases. 


preminin,  is  not  admissible.  II  is  nol  a 
question  of  science,  upon  which  scientific 
men  will  most  likely  think  alike,  but  a 
question  of  opinion,  liable  to  be  govern- 
ed by  fancy,  and  in  which  the  diversity 
might  be  endless."  And  upon  the  ground 
thus  stated  by  Gibbs,  C.  J.,  it  has  been 
frequently  sought  to  distinguish  Linde- 
nau  V.  Desborough,  8  B.  &,  C.  580,  in 
which,  in  an  action  on  a  life  policy,  the 
r*99il  '^^'i'^^'ice  of  medical  men,  *as  to 
^  J  the  materiality  of  certain  symp- 
toms which  had  not  been  communicated, 
was  received  and  laid  before  the  jury, 
from  the  question  as  to  the  admissibility 
of  the  opinions  of  brokers  and  under- 
writers. In  Rickards  v.  Murdock,  10 
B.  &  C.  257,  such  evidence  was,  how- 
ever, admitted.  That  was  an  action  on 
a  policy,  effected  by  the  plaintiff,  as 
agent  for  Mr.  Campbell,  of  Sydney, 
upon  goods  by  the  ship  Cumberland. 
Upon  the  trial  it  appeared  that  Mr. 
Campbell,  having  shipped  the  goods  in 
question  by  the  Cumberland,  wrote  by 
another  ship  (the  Australia)  to  tiie 
plaintiff,  desiring  him  to  effect  an  insur- 
ance thereon,  and  telling  him,  at  the 
same  time,  that,  in  order  to  give  every 
chance  for  the  Cumberland's  arrival,  he 
had  directed  the  person  intrusted  with 
that  letter  not  to  deliver  it  till  thirty 
days  after  the  Australia's  reaching  Lon- 
don. These  instructions  were  obeyed  ; 
the  Cumberland  not  having  arrived  at  the 
expiration  of  the  prescribed  period,  the 
letter  was  delivered  to  the  plaintiff,  wiio 
thereupon  handed  the  letter  to  their 
broker,  desiring  him  to  effect  the  insur- 
ance, which  he  accordingly  did  with  the 
Indemnily  Insurance  Company,  whom 
the  defendant  represented.  But  he  read 
to  the  company's  manager  that  part  of 
the  letter  only  which  contained  the  in- 
struction to  ^insure,  the  nature  of  the 
goods,  and  the  time  of  their  sailing.  At 
the  trial  it  was  contended  that  the  other 
circumstances  respecting  the  mode  in 
which  the  letter  was  conveyed  to  Eng- 
land, and  the  time  it  had  remained  there, 
were  material,  and  ought  to  have  been 
communicated,  and  that  their  suppres- 
sion vitiated  the  policy:  and  several  un- 
derwriters were  called,  who  deposed  that, 
in  their  opinion,  ihe  whole  of  the  letter 
ought  to  have  been  communicated,  and 
that  the  parts  suppressed  were  material. 
This  evidence  was  objected  to,  but  ad- 
milted  ;  and,  on  a  motion  for  a  new  trial, 
after  a  verdict  for  the  defendant.  Lord 
Tenterden,  delivering  the  judgment  of 


the  court,  said,  "  Several  witnesses  were 
e-xamined,  who  stated  that  they  thought 
the  letter  material;  but  it  has  been  con- 
tended that  no  such  evidence  ought  to 
have  been  received.  I  know  not  how 
the  materiality  of  any  matter  is  to  be 
ascertained  but  by  the  evidence  of  per- 
sons conversant  with  the  subject-matter 
of  the  inquiry." 

This  opinion  seems  to  be  embraced  by 
the  Court  of  Common  Pleas,  in  Chap- 
man V.  Walton,  10  Bing.  57.  In  that 
case  the  defendant,  who  was  a  broker, 
had  effected  policies  for  Richardson,  in 
which  the  voyage  was  described  to  be, 
"at  and  from  London  to  St.  Thomas, 
with  leave  to  call  at  Madeira  and  Tene- 
riffe."  Richardson  afterwards  received 
a  letter  from  his  supercargo,  who  stated 
that  he  intended  to  sail  the  next  day 
"  for  the  Canaries,"  and  thence  to  one 
or  more  of  the  West  India  Islands,  say 
Barbadoes,  St.  Kitt's  and  St.  Thomas, 
where  he  was  told  that  he  should  be 
able  to  dispose  of  the  part  of  his  cargo 
unsold  "in  the  Canaries."  With  respect 
to  linens,  he  said  he  had  no  fear, "  as  in 
Canary  any  reasonable  quantity  is  de- 
sirable." This  letter  Richardson  handed 
to  the  defendant,  telling  him  "that  the 
voyage  was  altered,  and  that  he  left  him 
to  do  the  needful  with  it."  The  defend- 
ant got  the  policies  altered,  by  adding 
leave  to  proceed  to  St.  Kitt's  and  Bar- 
badoes for  all  purposes.  The  vessel  was 
lost  at  the  Grand  Canary  Island.  Ac- 
tions were  brought  on  the  policies,  which 
turned  out  unsuccessful  on  account  of 
the  voyage  not  being  covered  by  the 
alterations,  and  this  action  was  brought 
by  the  assignees  of  Richardson,  who  had 
become  a  bankrupt,  against  the  defend- 
ant, for  negligence  in  not  having  pro- 
cured the  proper  alterations  to  be  made. 
The  plaintiffs  contended  that  it  was  the 
defendant's  duty  to  have  procured  the 
insertion  of  "  liberty  to  proceed  or  touch 
at  any  of  the  Canary  Islands."  The 
defendant's  counsel,  on  the  otiier  hand, 
called  several  policy-brokers,  and  putting 
into  their  hands  the  policies,  the  bills  of 
lading,  and  invoices,  of  the  goods,  and 
the  supercargo's  letter,  asked  them  what 
ulteruiions  of  the  policies  a  skilful  in- 
surance-broker, ought,  in  their  judg- 
ment, to  have  procured,  having  these 
documents  in  his  possession,  and  being 
instructed  to  do  the  needful.  To  which 
question  they  replied  that  they  thought 
he  would  do  ample  justice  by  procuring 
the  alterations  as  made.     The  jury  hav. 


CARTER    V.     B  0  E  H  M. 


543 


ino-  found  for  the  defendant,  the  court  rell   v.   Bedorley,  Holt,  N.   P.  C.    -,83, 

r^L-1  discharo-ed  a  rule  for  a  new  trial,  with  the  judu-nicnt  ot  the  Court  of  King  s 

[*28oJ  ^^oygj^on   ihe  ground  that  this  Bench  in  the  case  last  above  reh^rred  to. 

evidence  had  been  improperly  admitted.  We  think,  therefore,  bothon  principle, 

"  It  is  objected,"  said  the  Lord  Chief  and    on    the   authority   ot   the   decided 

Justice,  delivering  the  judgment  of  the  cases,  the   evidence  was   properly  ad- 


court,  "  that  to  allow  this  question  to  be 
put  to  the  witnesses  is,  in  effect  and  sub- 
stance, to  allow  them  to  be  asked,  what 
is  the  meaning  of  the  letter! — that  is, 
to  ask  them  whether  the  letter  told  the 
defendant  that  the  vessel  was  going  to 

the  Canaries,  whereas  the  letter  ought  .        -  ,   ^.„    ,       i    ,  ■ 

to  be  allowed  to  speak  for  itself,  or,  if    Rickards,  5  B.  &  Adol  840,  decided  m 
there  were  any  doubt  upon  the  meaning,     Uie  Michaelmas  Term  of  the  same  year. 


mitted." 

It  is  remarkable  that  the  above  case, 
which  was  decided  in  Trinity  Term 
1S:33,  and  contains  a  recognition  of  the 
opinion  of  the  King's  Bench  in  Rickards 
V.  Murdock,  should  not  have  been  al- 
luded  to  in  any  stage  of  Campbell  v. 


It  may  be  admitted  that,  if  such  were  office,  having,  as  we  have  seen,  ^Mm 

the  real  nature  of  the  question,  the  evi-  consequence  of  the  suppression   by  the 

dence  offered  would  have  been  inadmis-  broker,  who  was  employed  by  ItickarUs  & 

sibie.  .  .  .  But  it  is  not  a  simple  abstract  Co.  to  effect  the  policy,  Campbell,  the 

question,  as  supposed   by  the  plaintiffs,  merchant  of  Sydney,  upon  whose  goods 


what  the  words  of  the  letter  mean  ;  it 
is  what  others  conversant  with  the  busi- 
ness of  a  policy-broker  would  have  un- 
derstood it  to  mean,  and  how  they  would 
have  acted  upon  it  under  the  same  cir- 
cumstances. The  time  of  year  at  which  --  n  i  t-  ti 
the  voyage  is  performed— the  nature  of  and  underwriters  were  called  tor  tlie 
the  cargo  on  board— the  objects  of  the     plaintiff;  and Jhe  same  letter  which  was 


the  policy  had  been  effected,  brought  this 
action  auainst  Rickards  &  Co.,  to  recover 
compeiisaiion  for  the  loss  which  he  had 
sustained  by  their  negligence;  in  not 
taking  care  that  the  policy  effected  should 
be  valid.     At  the  trial,  several  brokers 


voyage,  as  disclosed  in  the  letter — 
above  all,  the  circumstances  that  the 
original  voyage  described  in  the  policy 
itself  comprehended  Teneriffe,  the 
greatest  and  most  important  of  the 
Canary  Islands,  would  all  operate  in  the 
minds  of  experienced  men  in  determin- 
ing whether  it  was  intended  that  the 
alteration  should  include  a  liberty  to 
touch  and  stay  at  the  Canaries  in  gene- 
ral; and  this  conclusion  it  appears  to  us, 
neither  judge  nor  jury  could  arrive  at 
from  the  simple  perusal  of  the  letter, 
unassisted  by  evidence,  because  tiiey 
would  not  have  the  experience  upon 
which  a  judgment  could  be  formed. 
The  decision  in  this  case  appears  to  be 
consistent  with  the  principle  laid  down 
by  Mr.  Justice  Holroyd,  in  Berthon  v. 
Loughman,  2  Star.  N.  P.  25>^,  that   a 


produced  in  Rickards  v.  JMurdock  being 
put  into  their  hands,  they  were  asked, 
"  whether  it  ivas  material  to  have  com- 
municated the  fact  that  that  letter  had 
arrived  in  this  country  thirty  duys^  be- 
fore effecting  this  insurance?'''     The 
answer  was  that  it  was  material.     The 
jury  having  found  a  verdict  for  the  plain- 
tiff, and  a  new  trial  being  moved  for,  on 
the  ground  that  the  evidence  had  been 
improperly  admitted,  the  rule  was  made 
absolute.     The  Lord  Chief  Justice  Den- 
man,  delivering   the   judgment   of  the 
court,    referred   to  the  opinion  of  Lord 
Mansfield  in  Carter  v.  Bochm,  and  that 
of  Chief  Justice  Gibbs  in  Durrell  v.  I3e- 
derley.     "  In  some  more  recent  cases," 
continued  his  lordship,  "such  questions 
have  certainly  been  proposed  to  witness- 
es, but  they  have  passed  without  objec- 


witness  conversant  with  the  subject  of  tion,  and  it  may  be  observed  that  the 
insurance  might  give  his  opinion,  as  a  answers  will  often  imply  no  more  tlian 
matter  of  judgment,  whether  particular  scientific  witnesses  may  properly  slate 
facts,  if  disclosed,  would  make  a  differ-  —their  opinion  on  some  question  of  sci- 
ence as  to  the  amount  of  the  premium  ence.  Tins  is  especially  true  of  j-^^^ggj 
—a  principle  which  has  been  confirmed  *medical  opinions.  In  Rickar.  s 
by  the  later  case  of  Rickards  v.  Mur-  v.  Murdock,  indeed,  out  of  whicl.  ttie 
dock,  10  B.  &  C.  527  :  and  it  is  difficult  present  case  arises,  this  kind  of  tesumony 
to  reconcile  the  opinion  given  by  Lord  was  received.  In  giving  judgn^nt  on  ttie 
Chief  Justice  Gibbs,  in  the  case  of  Dur-  motion  for  a  new  trial,  Lord  ientertien 


544 


S  M  I  T  U '  S    LEADING    CASES. 


(lid  not  expressly  ilefcnd  its  admissibili- 
ty, but  his  words  are  in  the  alternalive. 
'  If  such  evidence  be  rejected,  the  court 
and  jury  niu?t  decide  the  point  by  liieir 
own  judirinent,  unassisted  by  that  of 
others.  If  they  arc  to  decide,  all  the 
court  agree  in  thinking  the  letter  was 
material,  and  ought  to  have  been  com- 
municated, and  that  a  jury  would  have 
been  bound  to  come  to  that  conclusion.' 
Now,  this  mode  of  disposing  of  the  ques- 
tion does  not  appear  to  the  court,  on  re- 
flection, to  be  quite  correct ;  but  we  think 
that,  as  the  jury  are  to  decide  on  the 
materiality  of  facts,  and  the  duty  of  dis- 
closing them,  this  verdict,  founded  in 
soine  degree  on  evidence  that  could  not 
be  legally  received,  ought  to  be  set  aside, 
'i'he  rule  for  a  new  trial  must  therefore 
be  made  absolute." 

Such  being  the  state  of  the  authori- 
ties, the  question  of  admissibility  can  be 
hardl}'  even  now  considered  as  settled  ; 
for  opposed  to  the  decision  of  the  King's 
Hencli,  in  Campbell  v.  Rickards,  is  the 
opinion  of  the  Judges  of  that  Court  in 
Rickards  v.  Murdock,  recognised  by  the 
(.^ourt  of  Common  Pleas  in  Chapman  v. 
Walton.  The  difl'erence  is,  however, 
perhaps  less  upon  any  point  of  law  than 
on  the  application  of  a  settled  law  to 
certain  states  of  facts;  for,  on  the  one 
hand,  it  appears  to  be  admitted  that  the 
opinion  of  witnesses  possessing  peculiar 
skill  is  admissible  whenever  the  subject- 
matter  of  inquiry  is  such  that  inexperi- 
enced persons  are  unlikely  to  prove  ca- 
pable of  forming  a  correct  judgment 
upon  it  without  such  assistance,  in  other 
r  *2ftr  1  ^^'"'"''^'  when  *it  so  far  partakes 
'-  -■  of  the  nature  of  a  science  as  to 

require  a  course  of  previous  habit,  or 
study,  in  order  to  the  attainment  of  a 
knowledge  of  it;  see  Folkes  v.  Chadd,  3 
Dow^l  157;  R.  V.  Searle,  2  M.  &  M. 
75;  Thornton  v.  R.  E.  Assurance  Co., 
Peake,  25;  Chaurand  v.  Angerstein, 
Peake,  43;  [MciXaghten's  case,  10  CI. 
&  Fin.  200;  Greville  v.  Chripman,5  Q,. 
B.  731 ;  and  Fenwick  v.  Bell,  1  Carr.  & 
Kir.  312,  Coltman,  J.  ;  but  see  iSilk  v. 
Brown,  9  Car.  &  P.  601,  Coleridge,!.;] 
wiiile,  on  the  other  hnnd,  it  does  not 
seem  to  be  contended  that  the  opinions 
of  witnesses  can  be  received  when  the 
inquiry  is  into  a  subject-matter,  the  na- 
ture of  which  is  not  such  as  to  require 
any  peculiar  habits  or  study  in  order  to 
qualify  a  man  to  understand  it.  iVow, 
the  question  of  materiality  in  an  assur- 
ance seems  one  which  may  possibly  hap- 


pen to  fall  within  either  of  the  above 
two  classes,  for,  setting  out  of  the  ques- 
tion the  cases  of  life-policies,  where  the 
medical  evidence  is  unquestionably  sci- 
entific, and  necessary  in  order  to  enable 
the  jury  to  come  to  a  right  conclusion, 
it  is  submitted  that  it  may  happen,  even 
in  cases  of  sea-policies,  that  a  communi- 
cation, the  materiality  of  which  is  in 
question,  may  be  one  respecting  the  im- 
portance of  which  no  one  except  an  un- 
derwriter can,  in  all  probability,  form  a 
correct  opinion.  If  such  a  case  were  to 
occur,  it  possibly  would  not  be  consider- 
ed as  falling  within  the  decision  in  Camp- 
bell v.  Rickards.  In  that  case  the  facts 
concealed  were  of  the  very  simplest  na- 
ture ;  a  vessel  which  sailed  after  the  one 
insured  had  arrived  thirty-nine  days  be- 
fore it,  and  it  was  easy,  without  much 
experience  in  the  business  of  an  under- 
writer, to  divine  the  probable  fate  of  the 
ship  insured  under  those  circumstances. 
[In  Mr.  Arnould's  valuable  work  on 
the  law  of  marine  insurance  and  aver- 
age. Vol.  I.  pp.  571 — 573,  the  conflict- 
ing opinions  on  the  subject  of  the  above 
note  are  considered,  and  the  American 
decisions  are  stated  to  be  in  the  same 
unsettled  state  as  our  own.  The  author 
marshals  the  authorities  in  both  coun- 
tries as  follows: — Lord  Mansfield  in  Car- 
ter V.  Boehm  ;  Gibbs,  C.  J.  in  Durrell  v. 
Bederley  ;  and  Lord  Denman  in  Camp- 
bell V.  Rickards,  supra,  against  receiv- 
ing the  evidence ;  Lord  Konyon  in  Chau- 
rand V.  Angerstein;  Holroyd,  J.,  in 
Berlhon  v.  Loughnan;  Lord  Tenterden 
in  Rickards  V.  Murdock;  and  Tindal,  C. 
J.  in  Chapman  v.  Walton,  supra ;  (and 
see  Elton  v.  Larkins,  5  C.  &  B.  392), 
expressly  in  favour  of  its  reception  ;  and 
tacitly  so,  by  receiving  and  acting  upon 
it  without  objection,  Mansfield,  C.  J., 
Littledale  v.  Dixon,  1  N.  R.  151 ;  and 
Lord  Ellenborough,  Haywood  v.  Rogers, 
4  East,  590.  In  America  there  are  the 
opinions  of  Chancellor  Kent,  3  Kent's 
Com.  284,  note  (b),  edit.  1844  ;  Judge 
Storey,  in  M'Lanahan  v.  Universal  Ins. 
Co.,  1  Peters,  188 ;  *Duer  on  r  *2SfiA  i 
Representations,  190;  andMr. '-  -' 

Duer,  in  his  work  on  Representations, 
184 — 191,  note  xix,  to  the  same  efl^ect. 
The  latter  writer  has  pointed  out  that 
the  evidence  was  refused  in  Carter  v. 
Boehm,  on  account  of  the  unusual  na- 
ture of  the  risk,  namely,  the  capture  of 
a  fort  in  the  East  Indies ;  so  that  in  the 
language  of  Lord  Mansfield,  the  evi- 
dence was  "  mere  opinion,  icithoul  the 


CARTER    V.    B  0  E  H  M.  545 

least  foundation  from  any  previous  merits  in  favour  of  the  admission  of  the 
precedent  or  usage."  x'Vnd  the  author  evidence  far  outweigh  those  which  have 
first  referred  to  concludes  that  the  argu-     been  urged  against  it.] 


It  would  seem  that  the  insured  is  not  bound  to  communicate  to  the  in- 
surers, the  particuhirs  of  those  general  facts  which,  in  one  form  or  other, 
must  be  present  in  every  contract  of  insurance.     As  the  insurer  must  know 
that  they  exist,  if  he  wish  to  learn  in  what  form  they  exist,  he  should  in- 
quire ;  and  so  put  the  assured  to  the  necessity  of  confessing,  what  is  the 
true  state  of  the  case.     Thus  under  ordinary  circumstances,  the  insured  is 
not  bound  to  communicate  the  age  of  the  vessel,  nor  how  she  was  built ; 
Poppleston  V.  Kitchen,  3  Wash.  C.  C  Rep.  139.     Nor  can  he  be  charged 
with  concealment,  for  not  stating  the  time  of  sailing,  or  the  character  of  the 
property  as  to  ownership,  or  neutrality ;  Barnwall  v.   Church,  1  Caines, 
237 ;  Elting  v.  Scott,  2  Johnson's  Rep.  157 ;  Seton  v.  Low,  1  Johnson's 
Cases,  1 ;  Buck  v.  Chesapeake  Insurance  Co.,  1  Peters,  161 ;  Fiske  v.  The 
New  England  Insurance  Co.,  15  Pick.  310.     Under  ordinary  circumstances, 
the  mind  of  the  insurers  may  as  readily  be  directed  to  points  of  this  sort, 
as  that  of  the  insured,  and  the  one  cannot  be  liable  for  concealing  what  the 
other  did  not  think  it  worth  while  to  know.     Thus  where  the  premises  in- 
sured, were  described  in  the  written  application  for  insurance,  as  a  dwelling- 
house,  with  an  out-house  and  kitchen  disconnected  from  it,  and  some  dis- 
tance in  the  rear,  but  nothing  was  said  with  regard  to  the  existence  of  a 
kitchen  in  the  dwelling-house,  which  was  habitually  used,  while  that  in  the 
out-house  was  not,  the  court  held,  that  there  was  no  misrepresentation  or 
concealment,  because  if  the  insurers  wished  to  know  the  exact  use  and  ap- 
propriation of  the  rooms  in  the  dwelling-house,  they  were  bound  to  inquire, 
and  not  put  it  upon  the  insured  to  enter  a  multitude  of  details,  no  one  of 
which  might  be  more  important  than  another.     But  if  circumstances  occur 
within    the  knowledge  of  the   insured,  which  render  any  fact  especially 
or  peculiarly   important   to   the  risk,  it  will   be  his  duty  to  state  them, 
and  to  bring  forward  all  the  information  which  he  possesses  on  the  sub- 
ject.    When,  therefore,  the  insured  is  aware,  that  the  vessel  has  been  at 
sea  for  a  longer  period,  than  is  usually  requisite  for  the  voyage,  and  that 
vessels  which  sailed  some  time  after  her,  have  arrived,  he  will  be  bound  to 
mention  the  day  in  which  she  sailed,  in  effecting  the  insurance.     Vale  v. 
The  Phoenix  Ins.  Co.,  1  W.  C.  C.  R.  283 ;  Johnson  v.  The  Phoenix  Ins. 
Co.,  ib.  378  J  M'Lanahan  v.  The  Universal  Ins.  Co.,  1  Peters,  170  ;  Liv- 
ingston v.  Delafield,  3  Caines,  53 ;  Ely  v.  Ilallett,  2  id.  57.     But  where 
the  peculiar  circumstances  which  render  a  fact  material  to  the  risk  insured, 
are  publicly  and  generally  known,  no  special  information  need  be  conveyed 
to  the  insurer.     Thus  where  a  cargo  which  would  be  innocent  in  time  of 
peace,  becomes  contraband  of  war,  on  the  breaking  out  of  hostilities,  it  is 
not  necessary  to  apprise  the  insurer  of  its  nature,  and  of  the  danger  of  con- 
demnation, which  grows  out  of  it,  because  he  is  bound  to  take  notice  of  the 
increased  risk  produced  by  a  public  event,  and  to  provide  against  it  by  au 
increase  of  premium,  or  by  stipulating  for  the  neutrality  of  the  goods  insured. 
Vol.  I.— 35 


546  smith's   leading    cases. 

Seton  V.  Low,  1  Johnson's  Cases,  1 ;  8kidmore  v.  Dcsdoity,  2  id.  77;  Isbel 
V.  Rhinelander,  ib.  120,  487 ;  Le  Roy  v.  The  United  Ins.  Co.,  7  Johnson, 
343  ;  The  Ins.  Co.  v.  Bathurst,  5  Gill  &  Johnson,  159. 

Where,  however,  a  material  fact  is  so  far  out  of  the  usual  course  of  trade, 
that  it  could  not  have  been  anticipated  and  provided  for  by  the  insurer,  it  will 
be  the  duty  of  the  insured  to  apprise  him  of  it,  although  its  materiality  may 
be  due  to  a  public  and  well  known  cause.  Thus  where  goods  insured  from 
Newport  to  Port  Passage,  in  Spain,  were  brought  from  Laguira  to  Newport, 
and  reshipped  from  thence  without  being  lauded,  which  rendered  them  lia- 
ble to  confiscation  under  the  British  Orders  in  Council,  it  was  decided,  that 
although  those  orders  were  public,  and  therefore  unnecessary  to  be  com- 
municated, yet  as  the  particular  circumstances  attendant  on  the  shipment 
of  the  goods,  which  occasioned  their  condemnation,  were  of  a  private  nature, 
they  ought  to  have  been  stated  to  the  insurer.  Kohne  v.  The  Ins.  Co.  of 
N.  A.,  6  Binney,  224.  And  where  a  vessel  was  insured  at  and  from 
Charleston  to  Marseilles,  the  omission  to  state,  that  the  vessel  merely  touched 
at  Charleston,  and  sailed,  in  the  first  instance,  from  Havana,  which  was  a 
belligerent  port,  was  held  to  vitiate  the  insurance,  because  although  the 
insurers  were  bound  to  take  notice  of  the  war,  which  was  a  public  event, 
they  were  not  of  tlie  particular  course  of  the  voyage,  which  was  the  prox- 
imate cause  of  the  loss.  Stoncy  v.  The  Union  Ins.  Co.,  3  M'Cord,  387. 

A  decision  will  be  found  in  Stocker  v.  The  Merrimack  M.  &  F.  Ins.  Co., 
6  Mass.  220,  which  is  somewhat  inconsistent  with  that  of  Seton  v.  Low,  and 
with  the  general  principle,  that  the  insurer  is  bound  to  anticipate  and  pro- 
vide for  every  risk,  which  is  caused  by  a  public  event,  and  cannot  complain 
of  not  being  put  on  his  guard  against  consequences,  which  it  is  his  duty  to 
know.  In  Stocker  v.  The  Merrimack  M.  &  F.  Ins.  Co.,  insurance  had  been 
effected  on  freight  from  one  neutral  port  to  another,  and  the  cargo  was  con- 
demned as  belligerent  property,  and  freight  refused  to  the  owners  of  the 
vessel.  The  court  admitted,  that  the  transportation  of  belligerent  property 
by  a  merchant  was  lawful,  and  did  not  in  itself  vitiate  the  insurance,  but 
they  held,  that  as  the  character  of  the  cargo  was  more  directly  within  the 
knowledge  of  the  insured,  he  was  guilty  of  a  concealment  in  not  communi- 
cating it  to  the  insurer.  A  similar  opinon  was  expressed  in  Ptichardson  v. 
The  Maine  Ins.  Co.,  6  Mass.  102.  These  cases  appear  inconsistent  with  the 
decisions  in  New  York,  which  hold  that  the  insurer  is  bound  to  presume 
that  trade  continues  to  flow  in  the  same  channels  after  war  has  commenced, 
as  it  did  before,  and  should,  therefore,  provide  against  any  increase  of  risk, 
which  the  war  may  have  occasioned.  In  Stocker  v.  The  Merrimack  Ins. 
Co.,  however,  the  cargo  was  described  in  the  bill  of  lading  as  belonging  to 
the  owner  of  the  vessel,  with  a  view  of  screening  its  real  character,  and 
the  prize  court,  by  which  it  was  condemned,  founded  their  decree  upon 
this  circumstance.  The  decision  may,  therefore,  be  sustained,  without 
adopting  the  doctrine,  that  the  insured  was  guilty  of  a  concealment  in  not 
stating,  tliat  the  cargo  vras  belligerent  property.  For  although  the  owner 
of  a  vessel  may  be  entitled  to  carry  belligerent  property,  without  informing 
the  insurers,  it  does  not  follow  he  is  equally  justifiable  in  being  silent 
as  to  his  intention  to  cover  it  by  false  papers.  There  can  be  no  doubt, 
that  carrying  papers  which  increase  the  risk,  without  communicating  the 
fact  to  the  insurer,    will  vitiate   the  insurance ;   Livinn-ston  v.   The    Mar. 


i 


CARTER    V.    BOEHM.  547 

Ins.  Co.,  6  Crancli,  274;  7  id.  506;  unless  it  appear,  that  the  use  of  such 
papers  was  necessary,  and  usual  for  the  purposes  of  the  voyage,  insured  ; 
Le  Roy  v.  The  United  Ins.  Co.,  7  Johnson,  343.  And  in  Ohl  v.  The 
Eagle  Ins.  Co.,  4  Mason,  390,  every  policy  was  said  to  carry  with  it  a 
representation,  that  the  papers  of  the  vessel  disclose  her  true  character;  and 
if  so,  the  decision  in  Stocker  v.  The  Merrimack  Ins.  Co.,  rests  on  the 
ground  of  misrepresentation,  as  well  as  of  concealment. 

No  information  need  be  communicated  to  the  insurer  which  he  knows  to 
be  possessed  by  the  insured,  and  does  not  think  fit  to  ascertain  by  inquiry. 
Thus,  where  the  insured  stated,  in  applying  for  insurance,  that  a  vessel 
which  sailed  before  that  to  which  his  application  related,  had  arrived,  he  was 
held  not  to  be  bound  to  go  further,  and  state  that  she  had  been  in  port  for 
more  than  a  month.  For  as  the  attention  of  the  insurer  was  directed  to  the 
subject,  be  was  bound  to  ask  for  further  information  if  he  wished  to  obtain 
it ;  Alsop  V.  The  Commercial  Ins.  Co.,  1  Sumner,  451.  But  when  the  insured 
has  received  information  which  he  is  not  known  to  possess,  and  would  not 
necessarily  or  ordinarily  have,  he  will  be  bound  to  disclose  it,  without  wait- 
ing for  an  inquiry  which  there  is  nothing  to  induce  the  insurer  to  make. 
Thus,  where  the  contents  of  a  letter  were  communicated  to  the  insured,  in 
which  it  was  stated  that  a  violent  hurricane  had  occurred  at  the  port  of  des- 
tination, about  the  time  at  which  the  vessel  might  have  been  expected  to 
arrive,  he  was  held  to  be  guilty  of  concealment  in  not  communicating  this 
specific  information  to  the  insurer,  although  the  latter  not  only  knew  of  the 
storm,  but  that  it  had  been  one  of  great  severity.  Moses  v.  The  Delaware 
Ins.  Co.,  1  W.  C.  C.  R.  385. 

There  are  two  general  principles,  which  will  often  be  found  conclusive  of 
the  question,  whether  the  omission  to  state  a  particular  fact,  or  set  of  facts, 
has  or  has  not  been  a  concealment.  In  the  first  place  there  can  be  no  con- 
cealment, if  the  existence  of  the  fact  is  implied  by  the  terms  of  the  policy  ; 
and  in  the  next,  the  assured  is  not  bound  to  state  any  of  the  usual  or  accus- 
tomed incidents  of  the  voyage  or  trade,  on  which  the  insurance  is  effected, 
even  when  they  are  in  the  highest  degree  material  to  the  risk.  Livingston 
v.  The  Maryland  Ins.  Co.,  7  Cranch,  306  ;  Le  Roy  v.  The  United  Ins.  Co., 
7  Johnson,  203.  Thus,  where  on  the  face  of  the  policy,  the  insurance  is 
effected  for  whomsoever  it  may  concern,  the  insurer  need  not  be  told  that 
the  ostensible  is  not  the  real  owner  of  the  property,  nor  that  it  belongs 
wholly  or  in  part  to  a  belligerent.  Elting  v.  Scott,  2  Johns.  Rep.  157 ; 
Buck  V.  Chesapeake  Ins.  Co.,  1  Peters,  161.  And  as  nothing  need  be  told 
which  is  necessarily  to  be  inferred  from  the  nature  of  the  trade,  the  insurers 
were  held  liable  under  a  policy  of  insurance,  at  and  from  New  York  to 
the  port  of  Sisal,  with  liberty  to  proceed  to  one  other  port  on  the  coast  of 
Yucatan,  for  a  loss  which  happened  while  the  vessel  was  taking  in  her  lad- 
ing at  a  bad  anchorage,  in  the  open  sea  on  that  coast.  As  it  appeared  that 
there  were  no  ports,  in  the  ordinary  sense  of  the  term,  at  the  place  of  desti- 
nation, and  as  the  usual  and  necessary  course  of  commerce  had  been  pur- 
sued, a  representation  by  the  insured  was  held  unnecessary  to  the  validity  of 
the  policy.  Dclonguemere  v.  The  New  York  Fireman  Ins.  Co.,  10  Johns. 
120.  Nor  will  the  rights  of  those  interested  in  the  insurance  be  compro- 
mised, by  the  existence  of  false  papers  on  board  the  vessel,  describing 
property  which  has  been  represented  or  warranted  as  neutral,   as  belonging 


548  smith's    leading   cases. 

to  a  belligerent,  wlien  it  is  both  essential  and  customary  for  vessels  carrying 
neutral  property  on  the  voyage  insured  in  the  policy,  to  be  provided  with 
papers  of  that  description.  Lc  Koy  v.  United  Ins.  Co.,  7  Johns.  Hep.  343  ; 
Livingston  v.  Md.  Ins.  Co.,  7  Cranch,  536  j  Calbreath  v.  Gracy,  1  W.  C. 
C.  R.  222.  Scton  v.  Low,  1  Johnson's  Cases,  1 ;  Skedmore  v.  Desdoity, 
2  Id.  77  J  Ishal  v.  Rhinclander,  Id.  120,  487;  The  Ins.  Co.  v.  Bathurst, 
5  Gill  &  Johnson,  159.  And  where  it  appeared  that  steamboats  of  the  class 
of  that  insured,  were  often  built  on  the  hulls  of  old  keel  boats,  it  was  held 
unnecessary  to  inform  the  insurer  that  such  was  the  case  in  the  particular 
instance  in  question.     The  Lexington  Ins.  Co.  v.  Power,  16  Ohio,  324. 

Whenever  it  becomes  the  duty  of  the  insured  to  make  a  representation  to 
the  insurers,  it  must  be  made  with  accuracy,  and  with  the  full  degree  of 
care  which  a  pi'udent  man  would  exert  in  providing  materials  or  information 
for  the  transaction  of  his  own  business.  Gates  v.  The  Madison  County  Ins. 
Co.,  3  Barbour,  73.  Thus  where  the  insured  was  aware  that  there  had  been 
a  violent  storm  on  the  coast  a  few  hours  after  the  vessel  sailed,  a  general 
statement  that  there  had  been  blowing  weather  after  her  departure,  without 
stating  the  time  when  or  the  degree  of  violence,  was  held  to  be  such  a  con- 
cealment as  would  avoid  the  insurance.  The  insured  cannot  recover  unless 
he  has  communicated  all  the  knowledge  within  his  reach,  material  to  the 
risk  insured,  of  which  the  insurer  may  reasonably  be  presumed  to  be  igno- 
rant. But  if  that  be  done,  his  duty  will  be  discharged,  and  he  will  not  be 
responsible  for  not  stating  other  facts,  which  have  been  concealed  from  him 
by  the  bad  faith  or  negligence  of  third  persons,  or  even,  as  it  would  seem,  of 
his  own  agents.  Briggs  v.  The  Union  Ins.  Co.,  1  W.  C  C.  11.  506 ;  Bug- 
gies V.  The  Girard  Ins.  Co.,  4  Mason,  74 ;  The  General  Ins.  Co.  v.  Buggies, 
12  Wheatou,  408.  Thus  it  was  held  in  the  case  last  cited,  that  the  inten- 
tional omission  of  the  master  to  communicate  the  loss  of  the  vessel,  did  not 
vitiate  a  subsequent  insurance  eifected  by  the  owner,  there  being  no  reason 
to  charge  him  with  collusion  with  the  master.  The  point  was,  however,  de- 
cided the  other  way  in  Gladstone  v.  King,  1  Maule  &  Selwyn,  35,  on  the 
ground  of  the  intimate  relation  between  the  master  and  owner,  and  the 
necessity  for  making  it  the  interest  of  the  one,  that  correct  information  should 
be  given  by  the  other. 

The  duty  of  the  insured  to  communicate  everything  to  the  insurer,  which 
is  material  to  the  risk  assured  by  the  latter,  does  not  necessarily  terminate 
on  his  making  an  accurate  statement  of  all  the  facts  known  to  him  at  the 
time  of  the  application  for  insurance;  for  if  other  facts  come  to  his  know- 
ledge subsequently  and  before  the  insurance  is  effected,  he  must  use  due 
diligence  in  communicating  them  to  the  insurer.  Watson  v.  Delafield,  2 
Caines,  224,  1  Johnson,  150,  2  Johnson,  506.  In  this  case,  the  insured 
sent  letters  in  triplicate,  by  different  vessels  from  Jamaica  to  Baltimore, 
directing  insurance  to  be  made  on  his  effects,  on  board  a  ship  in  which  he 
was  about  to  sail  for  the  United  States.  He  was  subsequently  saved  from 
the  wreck  of  this  ship,  which  was  lost  during  the  passage,  by  one  of  the 
vessels  in  which  he  had  sent  the  order  for  insurance.  And  his  neglect  to 
withdraw  the  letter  containing  this  order  from  the  letter  bags  of  the  vessel, 
and  to  write  immediately  on  landing  at  Norfolk,  announcing  the  loss  and 
countermanding  the  insurance,  was  held  to  be  a  concealment  which  vitiated 
the  policy.     But  good  faith  and  reasonable  diligence,  are  all  that  can  be 


0  xV  R  T  E  R    V,     B  0  E  H  M.  549 

required  from  the  insured  iu  communicating  information  to  the  insurer, 
either  at  the  time  of  the  applying  for  the  insurance  or  suhsequently  ;  and 
when  these  have  been  duly  exercised,  he  will  be  entitled  to  enforce  the 
policy  against  the  insurers.  McLanahan  v.  The  Universal  Ins.  Co.,  1 
Peters,  170  ;  Andrews  v.  The  Marine  Ins.  Co.,  9  Johnson  32.  Thus,  even 
in  the  extreme  case  where  the  insured  hears  of  the  loss  of  the  vessel,  after 
sending  the  application  for  insurance,  it  will  be  enough  to  forward  the  intel- 
ligence by  the  next  mail,  without  resorting  to  any  more  speedy  but  less  reg- 
ular public  conveyance.  Green  v.  The  Merchants  Ins.  Co.,  10  Pick.  402. 
Good  faith  and  diligence,  are  not,  however,  always  sufficient  to  exonerate 
the  insured  from  liability  for  misapprehension,  or  mistake  in  his  commu- 
nication to  the  insurer.  The  contract  of  insurance  is  based  upon  the  repre- 
sentations of  the  insured,  and  necessarily  fails  when  they  are  unfounded. 
Thus,  where  there  is  a  failure  on  the  part  of  the  insured,  to  disclose  a 
material  fact  within  his  own  knowledge,  the  insurance  will  be  equally 
vitiated,  whether  the  omission  result  from  design,  or  from  ignorance 
of  the  materiality  of  the  fact,  or,  the  duty  of  disclosing  it  to  the  insurer. 
And  although  the  insured  cannot  incur  any  danger  from  making  an  honest 
statement  of  his  belief,  or  opinion,  as  such,  and  will  always  be  safe  in  sub- 
mitting all  the  evidence  within  his  reach,  to  the  insurer,  and  leaving  the 
latter  to  draw  his  own  conclusions  from  it ;  .Rice  v.  The  New  England  M.  Ins. 
Co.  4  Pick.  439 ;  Allegro's  adm'r  v.  The  Maryland  Ins.  Co.  2  Gill  &  John- 
son, 136  ;  yet,  if  he  goes  beyond  this,  and  makes  unqualified  statements, 
he  cannnot  get  rid  of  the  consequences  of  their  incorrectness,  by  showing 
that  they  were  made  in  good  faith,  and  under  the  influence  of  mistaken 
impressions  derived  from  third  persons.  M'Dowell  v.  Frazer,  Douglas, 
260.  It  has,  notwithstanding,  been  doubted,  whether  the  full  severity  of 
the  rule,  which  maks  a  misstatement,  or  concealment  fatal  to  the  validity  of 
a  marine  insurance,  where  the  insured  has  acted,  not  only  without  an  intent 
to  defraud,  but  in  the  fullest  good  faith,  is  appliable  to  insurances  against 
fire,  when  the  insurer  is  usually  much  better  able  to  protect  himself  by  spe- 
cial provisions  in  the  policy  of  insurance,  and  by  actual  inspection  of  the 
property  insured.  "  In  marine  insurance,"  said  Bronson,  J.,  in  Burnett  v. 
Saratoga  M.  Ins.  Co.  5  Hill,  188,  "  the  misrepresentation,  or  concealment 
by  the  assured,  of  a  fact  material  to  the  risk,  will  avoid  the  policy,  although 
no  fraud  was  intended.  It  is  no  answer  for  the  assured,  to  say  that  the 
error  or  suppression  was  the  result  of  mistake,  accident,  forgetfulness,  or 
inadvertence.  It  is  enough  that  the  insurer  has  been  misled,  and  has  thus 
been  induced  to  enter  into  a  contract,  which,  upon  correct  and  full  informa- 
tion,  he  would  either  have  declined,  or  would  have  made  upon  different 
terms.  Although  no  fraud  was  intended  by  the  assured,  it  is  nevertheless, 
a  fraud  upon  the  underwriter,  and  avoids  the  policy.  Bridges  v.  Hunter,  1 
Maulc  &  Selw.  13  j  Macdowell  v.  Fraser,  Doug.  269  ;  Fitzherbert  v.  Ma- 
ther, 1  T.  R.  12 ;  Carter  v.  Bochm,  3  Burr.  1905  ;  Bufe  v.  Turner,  6 
Taunt.  338;  Curry  v.  Comm.  Ins.  Co.  10  Pick.  535;  N.  Y.  Bowery  Ins.  Co. 
v.  The  N.  Y.  Ins.  Co.  17  Wend.  359  ;  1  Marsh.  (Condy)  451,  453,  405 ;  1 
Phil.  214.  303.)  The  assured  is  bound,  although  no  inquiry  be  made,  to  dis- 
close every  fact  within  his  knowledge,  which  is  material  to  the  risk.  But 
this  doctrine  cannot  be  applicable,  at  least,  not  in  its  full  extent,  to  policies 
against  fire.       If  a  man  is  content  to  insure  my  house  without  taking  the 


550  smith's   leading   cases. 

trouble  to  inquire  of  wliat  materials  it  is  constructed,  how  it  is  situated  in 
reference  to  other  buildings,  or  to  what  uses  it  is  applied,  he  has  no  ground 
for  complaint,  that  the  hazard  proved  to  be  greater  than  he  had  anticipated, 
unless  I  am  chargeable  with  some  misrepresentation  concerning  the  nature  or 
extent  of  the  risk.  It  is,  therefore,  the  practice  of  companies  which  insure 
against  fire,  to  make  inquiries  of  the  assured,  in  some  form,  concerning  all 
such  matters  as  are  deemed  material  to  the  risk,  or  which  may  affect  the 
amount  of  premium  to  be  paid.  This  is  sometimes  done  by  the  conditions 
of  insurance  annexed  to  the  policy,  and  sometimes  by  requiring  the  appli- 
cant to  state  particular  facts  in  a  written  application  for  insurance.  When 
thus  called  upon  to  speak,  he  is  bound  to  make  a  true  and  full  representa- 
tion concerning  all  the  matters  brought  to  his  notice,  and  any  concealment 
will  have  the  like  effect,  as  in  the  case  of  a  marine  risk.  (See  1  Phil.  Ins. 
28-1,  285,  ed.  of  1840).  It  is  not  necessary  for  the  purpose  of  avoiding  the 
policy,  to  show  that  any  fraud  was  intended.  It  is  enough  that  information 
material  to  the  risk  was  required  and  withheld." 

The  same  distinction  between  insurance  against  fire  and  marine  insurance, 
was  taken  by  Chancellor  Walworth  in  Snyder  v.  the  Farmer's  Ins.  Co.  16 
Wend.  481  ;  and  again  by  the  Supreme  court  of  Kentucky  in  the  case  of 
The  Louisville  Ins.  Co.  v.  Southard,  8  B.  Monroe,  634.  The  insured  are, 
however,  held  to  greater  strictness  of  disclosure,  in  one  important  particular 
by  some  of  the  courts  of  this  country  in  fire  insurances,  than  in  those  of 
any  other  description.  It  is  well  settled  that  in  marine  insurances,  the 
insurer  is  not  entitled  to  a  representation  of  the  nature  of  the  interest  of 
the  insured,  even  when  it  is  not  based  on  property,  and  is  wholly  remote 
and  contingent  in  its  character.  Hancox  v.  The  Fishing  Ins.  Co.  3  Sum- 
ner, 132  ;  Crowley  v.  Cohen,  3  B.  &  A.  478  ;  Locke  v.  The  N.  A.  Ins.  Co. 
13  Mass.  61 ;  Bartlett  v.  Walter,  lb.  267.  But  it  has  been  decided  by  the 
Supreme  Court  of  the  United  States,  and  by  some  of  the  state  courts,  that  in 
the  case  of  insurances  against  fire,  the  nature  and  extent  of  the  interest 
insured,  are  material  to  the  risk,  and  must  be  represented  truly  to  the 
insurer.  The  Columbian  Ins.  Co.  v.  Lawrence,  2  Peters,  25  ;  10  Id.  507 ; 
Carpenter  v.  The  Washington  Ins.  Co.  16  Id.  495;  Catron  v.  The  Tennes- 
see Ins.  Co.  6  Humphreys,  170;  The  Illinois  M.  F.  Ins.  Co.  v.  The  Mar- 
seilles Man.  Co.  1  Gilman,  236.  The  courts  of  Mew  York  and  Massachu- 
setts have  refused  their  assent  to  this  doctrine,  and  hold  that  the  insured  is 
not  bound  to  communicate  the  nature  of  his  interest  in  the  property,  whe- 
ther the  insurance  be  against  fire,  or  a  marine  insurance,  unless  he  is  called 
upon  to  do  so  by  the  insurer,  when  of  course,  he  will  be  bound  to  state  it  accu- 
rately and  fully.  Tyler  v.  The  Etna  F.  Ins.  Co.  12  Wend.  507  ;  The  Etna 
F.  Ins.  Co.  V.  Tyler,  16  Id.  385 ;  Niblo  v.  The  N.  A.  F.  Ins.  Co.  1  Sand- 
ford,  S.  C.  R.  551 ;  Bixby  v.  The  Frankford  Ins.  Co.  8  Pick.  86  ;  Strong  v. 
The  M.  Ins.  Co.  8  Id.  40;  Curry  v.  The  Commonwealth  Ins.  Co.  11  Id.  535  ; 
Fletcher  v.  The  Com.  Ins.  Co.  18  Id.  417.  And  there  can  be  little  doubt 
that  these  decisions  are  consistent  with  the  principles,  both  of  fire  and 
marine  insurance,  as  generally  understood  and  applied  in  this  country  and 
in  England. 

When  the  representations  of  the  insured  are  substantially  true,  the  policy 
will  not  be  vitiated  by  mistakes  in  immaterial  particulars.  A  warranty  on 
the  other  hand,  must  be  literally  fulfilled,  and  any  breach,  either  in  form  or 


CARTER     V.     B  0  E  H  M.  551 

substance,  will  avoid  tbe  insurance.  It  is  therefore,  important  to  distin- 
guish between  a  warranty  and  a  representation.  A  representation  is  a  collat- 
eral statement  of  a  fact  material  to  the  contract,  while  a  warranty  is  a  stipu- 
lation forming  part  of  the  contract,  and  is  construed  as  a  condition.  All  state- 
ments contained  in  the  policy  itself,  are  prima  facie  warranties,  while  extraneous 
statements,  are  regarded  merely  as  representations,  even  when  made  formally 
in  writing,  and  in  answer  to  written  or  printed  questions,  propounded  by  the 
insurers.  But  although  statements,  which  are  not  introduced  into  the  policy, 
are  ordinarily  collateral  to  the  contract,  they  may  undoubtedly  be  incorpo- 
rated with  it  by  express  agreement,  and  will  then  cease  to  be  mere  represen- 
tations, and  become  warranties.  A  reference  in  the  policy  to  a  representa- 
tion, will  not,  necessarily,  make  it  a  part  of  the  contract,  or  render  it  abso- 
lutely binding  on  the  insured,  for  the  intention  may  be  merely  to  prove  its 
existence  as  a  representation,  and  not  to  give  it  another  and  more  unfiivora- 
ble  character.  The  Jefferson  Ins.  Co.  v.  Cothral,  7  Wend.  72  ;  Snyder  v. 
The  Farmers'  Ins.  Co.  13  Id.  92 ;  IG  Id.  481 ;  The  Louisville  Ins.  Co.  v. 
Southard,  8  B.  Monroe,  634.  But  when  the  representations  of  the  insured 
are  expressly  referred  to. in  the  policy,  as  forming  part  of  the  contract, 
they  will  acquire  the  character  of  warranties,  and  invalidate  the  policy, 
unless  strictly  complied  with,  whether  they  are  or  are  not  material  to  the 
risk  assumed  by  the  insurer.  Jennings  v.  The  M.  Ins.  Co.  2  Denio,  75  ; 
Murdock  V.  The  Chenango  Ins.  Co.  2  Comstock,  210 ;  Koutledge  v.  The 
Chenango  Ins.  Co.  3  Hill,  501.  And  even  when  the  reference  to  the  state- 
ments of  the  insu.red,  is  not  such  as  to  render  them  warranties,  as  when 
they  are  expressly  referred  to  as  representations,  it  will  still  be  prima  f.icie, 
if  not  conclusive  evidence  of  their  materiality  to  the  risk,  and  render  any 
misrepresentation  or  concealment  in  making  them,  fatal  to  the  validity  of  the 
insurance.  Houghton  v.  The  Man.  M.  F.  Ins.  Co.  8  Metcalf,  114;  Burritt 
V.  The  Saratoga  M.  F.  Ins.  Co.  5  Hill,  188. 

Although  the  representations  of  the  assured  form  the  basis  of  the  con- 
tract with  the  insurer,  they  do  not  enter  into,  or  form  part  of  the  contract 
itself.  When  coupled  with  evidence  of  fraud,  they  will  sustain  an  action 
in  tort,  but  cannot  serve  to  support  any  suit  founded  in  contract.  Their 
effect  is  purely  negative,  for  they  impose  no  obligation  on  the  insured, 
although  they  may  invalidate  his  claim  against  the  insurer.  This  has  given 
rise  to  the  inference,  that  as  a  promissory  representation,  is  ineffectual  as  a 
promise,  it  must  be  equally  so  as  a  representation,  and  may  be  violated  by 
the  insured,  without  impairing  the  insurance.  Thus,  where  the  insured 
gave  a  verbal  promise  at  the  time  of  effecting  the  insurance,  to  discontinue 
the  use  of  an  open  fireplace  in  the  premises  insured,  and  use  a  stove,  the 
court  of  errors  reversed  the  decision  of  the  Supreme  Court,  and  held  that 
the  failure  to  comply  with  this  promise,  was  not  a  bar  to  a  recovery  against 
the  insurer.  Alston  v.  The  Mechanic's  F.  Ins.  Co.  1  Hill,  510  ;  Id.,  329. 
The  ground  taken  by  the  court  was,  that  if  the  promise  was  meant  to  be  a 
part  of  the  contract,  it  should  have  been  introduced  into  the  policy,  and  if 
it  was  not,  it  could  not  bind  the  insured.  The  law  was  held  the  same  way 
ihi  Whitney  v.  Haven,  13  Mass.  172,  and  Bryant  v.  The  Ocean  Ins.  Co.  22 
Pick.  200.  And  the  reasoning  on  which  these  cases  proceed,  would  be  conclu- 
sive if  the  effect  of  a  representation,  were  the  same  on  a  policy  of  insurance, 
as  on  other  written  contracts. 


552  smith's   leading   cases. 

Nothing  is  better  settled,  than  that  when  an  ordinary  contract  is  reduced 
to  writing,  evidence  cannot  be  given  of  antecedent  or  cotemporaneous  stat-e 
ments,  or  stipulations  not  embraced  in  the  writing,  unless  for  the  purpose  of 
proving  mistake  or  fraud.  If  this  rule  were  applied  to  policies  of  insur- 
ance, it  would  exclude  all  representations,  whether  present  or  promissory, 
which  are  not  incorporated  with  the  contract,  or  shown  to  be  fraudulent. 
But  the  effect  of  the  representations  of  the  insured  upon  the  policy  of  insur- 
ance, is  so  far  an  exception  to  the  ordinary  rules  of  evidence,  that  although 
they  from  no  part  of  the  agreement  between  the  parties,thcy  describe  and  de- 
fine the  nature  of  the  risk  insured,  and  control  the  contract  by  specifying  and 
ascertaining  its  subject  matter.  And  when  thus  regarded,  there  seems  no 
sufficient  reason  why  they  should  be  limited  to  the  present,  and  should  not 
extend  into  and  embrace  the  future.  It  must  be  remembered,  that  the  sub- 
ject matter  of  the  contract  of  insurance  is  risk;  and  that  the  risk  depends 
upon  the  nature  and  condition  of  the  property  insured.  It  has  been  held 
in  some  cases,  that  even  when  no  representations  are  made  to  the  insurer, 
any  change  in  the  property,  which  increases  the  risk,  will  avoid  the  insur- 
ance, unless  it  is  manifestly  within  the  scope  of  the  powers,  expressly  or 
impliedly  rserved  to  the  insured.  Jolly  v.  The  Baltimore  Eq.  Soe.  1  Har- 
ris &  Gill,  294.  And  it  would  iS^ould  seem  to  follow,  that  when  the  insured 
gives  a  specific  description  of  the  risk  on  which  he  requests  insurance,  any 
subsequent  variation  by  which  it  is  materially  increased,  will  discharge  the 
insurer.  It  can  hardly  be  supposed  that  if  property  be  insured  as  a  dwell- 
ing house,  it  can  subsequently  be  converted  into  a  carpenter's  shop,  without 
discharging  the  insurers,  or  that  they  would  be  liable  for  the  condemnation 
of  a  cargo  represented  as  neutral,  and  subsequently  filled  up  with 
goods  of  a  belligerent  character.  It  may  always  be  shown  that  a  con- 
tract is  inapplicable  to  the  subject  to  which  it  is  sought  to  apply  it,  and 
the  peculiarity  of  the  contract  of  insurance  seems  to  be,  that  the  existence 
of  a  written  agreement,  does  not  exclude  parol  evidence  of  the  representa- 
tions of  the  insured,  when  offered,  not  for  the  purpose  of  contradicting  the 
writing,  but  of  showing  the  nature  of  the  risk  to  which  it  relates.  Whether 
therefore,  these  representations  are  present,  or  promissory,  they  would  seem  to 
have  the  same  character,  and  to  be  equally  admissible.  It  was  said  in  Stetson 
V.  The  Mass.  M.  F.  Ins.  Co.  4  Mass.  330,  that  when  the  extent  and  nature  of 
the  risk,  depends  upon  the  continuance  of  the  premises  in  the  condition  in 
whichthey  were  represented,  they  cannot  be  altered  to  the  detriment  of  the 
insurer,  without  invalidating  the  insurance.  And  it  seems  to  be  admitted, 
even  in  the  more  recent  decisions,  that  where  representations  are  referred  to 
in  the  policy,  they  must  be  substantially  fulfilled  throughout  the  continu- 
ance of  the  risk  insured,  although  not  so  far  incorporated  with  the  contract, 
as  to  have  the  character  of  a  warranty.     (Supra.) 

The  point  has  not  been  expressly  or  finally  decided  in  England,  but  there 
seems  little  doubt  that  statements  made  to  the  insurer,  are  equally  binding, 
whether  they  relate  to  the  present  or  future  condition  of  the  property 
insured;  Edwards  v.  Fortner,  1  Campbell,  330;  Dennistown  v.  Lillie.  3 
Bligh,  202.  But  it  is  well  settled,  both  in  that  country  and  in  this,  that 
expressions  of  belief,  expectation  or  intention,  are  not  binding  on  the 
insured,  and  that  their  non-fulfilment  will  not  avoid  the  insurance,  unless 
they  are  made  in  bad  faith,  and  with  the  view  of  misleading  the  insurer. 


CARTER    V.    BOEHM.  553 

Catlin  V.  The  Springfield  F.  Ins.  Co.,  1  Sumner,  434;  Tillon  v.  The  Me. 
Ins.  Co.,  7  Barbour,  570;  Allegre  v.  The  Maryland  Ins.  Co.,  2  Gill  &  John- 
son, 136.  All  such  representations  have  in  fact  but  one  character,  and  turn 
solely  on  the  mental  condition  of  the  party  who  makes  them.  If  that  bo 
stated  truly  at  the  time,  the  statement  cannot  be  falsified  by  the  subsequent 
course  of  events.  And  the  rule  that  in  the  absence  of  fraud,  the  insured 
is  not  liable  for  any  thing  more  than  the  truth  of  the  statements  which  he 
makes,  as  he  makes  them,  applies  with  equal  force,  whether  he  states  the 
opinion  of  others,  or  his  own.  A  representation,  therefore,  that  the  vessel 
insured,  is  said  to  sail  remarkably  fast,  can  have  no  effect  on  the  insurance, 
unless  it  is  shown,  either  that  she  had  not  the  reputation  of  being  a  fast 
sailer,  or  that  the  insured  knew  that  she  did  not  deserve  it ;  Tidmarsh  v. 
The  Wash.  Ins.  Co.,  4  Mason,  439. 

It  is  well  settled,  that  unle'ss  a  representation  or  concealment  is  material, 
it  will  not  avoid  the  policy;  Curry  v.  Com.  Ins.  Co.,  10  Pick.  535;  Strong 
V.  Manufacturers'  Ins.  Co.,  Id.  40;  Farmers'  Ins.  and  Loan  Co.  v.  Snyder, 
10  Wend.  481;  Tyler  v.  .^tna  Insurance  Company,  12  Id.  507;  l^G  Id. 
385;  Flinn  v.  Headlam,  9  B.  &  C.  G93.  When,  therefore,  the  insurer  sets 
up  a  representation  or  concealment  by  the  insured,  in  bar  of  an  action 
brought  on  the  insurance,  he  must  prove  its  materiality,  as  well  as  its  exist- 
ence; Fiske  V.  The  New  England  Ins.  Co.,  15  Pick.  310.  In  some  cases, 
however,  the  nature  of  the  concealment  may  be  sufficient  proof  of  its  mate- 
riality, without  the  aid  of  extrinsic  evidence;  Elkin  v.  Janson,  13  M.  &  W. 
655 ;  and  it  would  seem  that  in  general,  the  statement  of  a  fact  by  one 
party,  as  a  ground  for  action  by  another,  must  be  some  evidence  of  its  ma- 
teriality to  the  contract  between  them.  And  there  can  be  no  doubt,  that 
where  the  policy  contains  a  proviso,  that  any  concealment  or  misrepresenta- 
tion in  the  answers  of  the  insured  to  the  questions  put  to  him  by  the  insurer, 
shall  avoid  the  insurance ;  the  burden  of  excusing  or  explaining  a  mistate- 
ment,  will  rest  on  the  former;  Burrett  v.  The  Saratoga  M.  Ins.  Co.,  5 
Hill,  188;  Gates  v.  The  Madison  County  M.  Ins.  Co.,  3  Barb.  73. 

It  was  held  by  the  Supreme  Court  of  the  United  States,  in  Hodgson  v. 
The  Marine  Ins.  Co.,  5  Cranch,  100,  that  as  a  misrepresentation  or  conceal- 
ment does  not  invalidate  an  insurance,  unless  it  is  fraudulent  or  material  to 
the  risk  insured,  a  plea,  setting  forth  that  the  insurers  bad  been  induced 
to  insure  and  value  the  vessel  at  a  much  higher  rate  than  she  was  worth,  by 
mistatements  as  to  her  age  and  tonnage,  was  bad  on  demurrer,  for  want  of  a 
positive  averment  of  materiality,  or  of  fraud.  But  it  has  been  repeatedly 
held  in  this  country,  that  the  real  value  of  the  property,  as  compared  with 
the  value  insured,  may  be  material  to  the  risk,  in  the  case  of  insurances 
against  fire,  if  not  of  marine  insurances,  by  diminishing  the  interest  of  the 
insured  in  its  preservation ;  The  Columbia  Ins.  Co.  v.  Lawrence,  2  Peters, 
25;  Carpenter  v.  The  Washington  Ins.  Co.,  16  Peters,  495.  ^'Generally 
speaking,"  said  Marshall.,  C.  J.,  in  The  Columbia  Ins.  Co.  v.  Lawrence, 
"  insurances  against  fire  are  made  in  the  confidence  that  the  assured  will  use 
all  the  precautions  to  avoid  the  calamity  insured  against,  which  would  be 
suggested  by  his  interest.  The  extent  of  his  interest  must  always  influence 
the  underwriter  in  taking  or  rejecting  the  risk,  and  in  estimating  the  pre- 
mium. So  far  as  it  may  influence  him  in  these  respects  it  ought  to  be  < 
communicated  to  him.     Underwriters  do  not  i-ely  so  much  upon  the  princi- 


554  smith's    leading  cases. 

pics,  as  on  the  interest  of  the  assured;  and  it  would  seem,  therefore,  to  be 
always  material,  that  they  should  know  how  far  this  interest  is  engaged  in 
guarding  the  property  from  loss." 

Thus,  where  the  insurers  refused  to  insure  the  property,  on  the  ground 
that  it  was  already  insured  for  as  much  as  it  was  worth,  and  subsequently 
altered  their  determination,  on  being  told  that  additional  buildings  had  been 
erected  since  the  first  insurance,  they  were  held  to  be  discharged  by  the 
untruth  of  this  statement,  whether  it  were  or  were  not  fraudulent  on  the 
part  of  the  insured;  1  Story,  C.  C.  R.  56.  And  the  presumption  that  the 
interest  of  the  insured  in  the  safety  of  the  property,  is  material  to  the  risk 
assumed  by  the  insurers,  has  been  carried  in  some  cases  to  the  extent  of  decid- 
ing that  his  title  must  be  represented  truly  to  the  insurer  at  the  time  of 
effecting  the  insurance,  because  it  has  a  direct  and  necessary  bearing  on  his 
interest,  (supra,  550.)  But  a  different  view  has*  been  taken  on  this  point  by  the 
courts  of  New  York  and  Massachusetts,  and  it  has  been  decided  that 
although  the  insured  must  prove  that  he  has  some  interest  or  title,  in  order 
to  recover  against  the  insurers,  the  nature  or  extent  of  bis  title  need  not  be 
disclosed  in  the  application  for  insurance.  It  has,  notwithstanding,  been 
held  in  New  York,  that  the  character  of  the  insured  may  be  material  to  the  risk 
assumed  by  the  insurer,  and  that  when  the  plaintiffs  effected  a  reinsurance 
with  the  defendants,  in  consequence  of  learning  that  the  owner  of  the  pro- 
perty covered  by  the  original  insurance,  was  suspected  of  having  set  fire  to 
his  house  on  a  former  occasion,  their  failure  to  communicate  this  informa- 
tion to  the  defendants,  vitiated  the  policy  executed  by  the  latter;  The  N. 
Y.  Bowery  F.  Ins.  Co.  v.  The  N.  Y.  Ins.  Co.,  17  Wend.  359. 

The  materiality  of  a  representation  or  concealment  must  be  judged  by 
the  state  of  facts  at  the  time,  and  not  by  what  occurs  subsequently;  Marshall 
V.  The  Union  Ins,  Co.,  2  W.  C.  C.  R.  359.  Thus,  where  a  foreign  prize 
court  bases  a  decree  condemning  the  property  insured,  upon  circumstances 
which  did  not  justify  the  condemnation,  and  would  not  have  occasioned  it 
in  the  ordinary  course  of  events,  the  insurance  will  be  valid,  although  these 
circumstances  have  not  been  disclosed  to  the  insurer ;  Sperry  v.  The  Dela- 
ware Ins.  Co.,  2  W.  C.  C.  R.  249;  Earl  v.  Shaw,  1  Johnson's  Cases,  315; 
Daguet  V.  Rhinelander,  2  Id.  476.  But  as  the  materiality  of  a  concealment  to 
the  risk,  is  a  question  of  fact  and  not  of  law;  the  insured  cannot  justify  a 
failure  to  disclose  special  circumstances,  which  have  been  made  a  cause  of 
condemnation  by  the  ordinances  of  a  foreign  power,  on  the  ground  that  these 
ordinances  or  the  decisions  under  them,  are  in  violation  of  the  law  of  nations. 
The  only  question  in  such  cases  is,  as  to  whether  the  facts  withheld  from 
the  insurer  increased  the  risk,  and  could  have  been  known  to  do  so  by  the 
insured;  Kohne  v.  The  Ins.  Co.  of  North  America,  6  Binney,  224;  Mar- 
shall V.  The  Union  Ins.  Co.,  2  W.  C.  C.  R.  357;  Sperry  v.  The  Delaware 
Ins.  Co. 

It  was  held  in  Hazard  v.  The  New  England  M.  Ins.  Co.,  1  Sumner,  218,  that 
where  the  application  for  insurance  was  made  by  a  letter  containing  a  represen- 
tation, which  was  true  according  to  the  usage  of  the  place  where  it  was  written, 
but  not  of  that  where  it  was  received,  the  insurance  was  not  binding,  because 
the  minds  of  the  parties  had  not  met  on  the  same  point,  or  assented  to  the 
same  agreement.  But  this  decision  was  subsequently  reversed  in  error,  on 
the  ground  that  the  representation  was  extrinsic  to  the  contract,  and  that 


CARTER    V.     BOEHM.  555 

the  words  of  a  proposition  ought  to  be  interpreted  in  the  sense  in  which 
they  are  understood  by  the  person  who  makes  it ;  Hazard  v.  The  New  Eng- 
land Ins.  Co.,  8  Peters,  557. 

The  materiality  of  a  representation  or  concealment  is  ordinarily  a  ques- 
tion of  fact  and  not  of  law,  and  must  therefore  be  submitted  to  the  jury, 
and  not  withheld  from  them  or  determined  by  the  court ;  Livingston  v.  The 
Maryland  Insurance  Co.,  M'Lanahan  v.  The  Universal  Ins.  Co.,  Living- 
ston V.  Delafield,  1  Johnson,  522 ;  The  N.  Y.  Firemen's  Ins.  Co.  v.  Walden, 
12  Id.  538.  Questions  of  law  may  however  enter  into  the  determination  of  every 
question  of  fact,  and  where  the  bearing  of  a  concealment  on  the  risk,  depends 
on  the  construction  of  a  foreign  law  or  ordinance,  the  jury  should  be  pro- 
perly instructed,  and  their  verdict  set  aside,  if  contrary  to  the  charge  of  the 
court;  Kohne  v.  The  Ins.  Co.  of  North  America,  6  Binney,  224. 

The  right  to  call  in  persons  acquainted  with  the  business  of  insurance,  to 
give  their  opinion  as  to  the  materiality  of  a  misrepresentation  or  conceal- 
ment, was  conceded  without  opposition,  in  Marshall  v.  The  M.  Ins.  Co.,  2 
W.  C.  C.  R.  558,  and  Moses  v.  Murgatroyd,  1  Id.  386;  but  in  The 
Jefferson  Ins.  Co.  v.  Cotheal,  7  Wend.  72,  where  the  point  was  much  dis- 
cussed, the  court  came  to  a  different  conclusion.  The  question  at  issue,  was 
whether  the  risk  had  been  increased  by  the  erection  of  a  boiler-house,  adjoin- 
ing a  steam  saw-mill  covered  by  the  insurance,  and  it  was  held  that  even  if 
the  opinions  of  witnesses  conversant  with  the  construction  and  management 
of  such  mills,  were  admissible  in  evidence,  yet  that  persons  who  had  no 
other  knowledge  of  the  subject  than  that  derived  from  their  business  as 
insurers,  could  not  be  allowed  either  to  say  what  they  thought  on  this 
point,  or  whether  they  would  have  insured  the  mill  at  the  same  pre- 
mium after  the  boiler-house  was  erected,  as  before.  The  only  cases  in 
which  opinion  is  evidence,  were  said  to  be  those  where  the  nature  of  the 
question  at  issue  is  such,  that  the  jury  are  incompetent  to  draw  their  own 
conclusions  from  the  facts,  without  the  aid  of  persons  whose  skill  or  know- 
ledge is  superior  to  their  own;  Norman  v.  Wells,  17  Wend.  136;  Fish  v. 
Dodge,  4  Denio,  311.  The  general  principle  thus  laid  down  is  well  settled, 
and  there  is  no  sufficient  reason  for  excepting  the  contract  of  insurance  from 
its  operation.  Witnesses  may  state  their  belief  or  impression  as  to  the 
value  or  usual  market  price  of  a  class  of  things,  when  the  value  of  a  par- 
ticular thing  belonging  to  that  class  is  in  question,  because  such  testimony 
is  the  best  which  the  nature  of  the  case  admits  of,  and  is  moreover  a  matter 
of  fact  rather  than  of  opinion ;  Brill  v.  Hagler,  23  Wend.  354.  The  same 
reasons  apply  where  artizans  are  called  in  to  state  the  results  of  their  experi- 
ence in  their  art,  as  where  a  mason  is  asked  how  much  time  must  elapse 
before  the  walls  of  a  new  house  are  sufficiently  dry  to  be  fit  for  habitation ; 
Smith  V.  Gregerty,  4  Barbour,  614.  But  persons  conversant  with  a  par- 
ticular business,  cannot  be  asked  their  opinion  of  the  extent  of  the  injury 
occasioned  by  its  interruption,  or  by  the  withdrawal  of  the  personal  care  and 
superintendence  of  the  plaintiff,  during  an  ilkiess  occasioned  by  the  acci- 
dent for  which  he  brings  suit;  Lincoln  v.  The  Saratoga  and  Schenectady 
Rail  Road,  23  Wend.  425 ;  GilesV.  Toole,  4  Barbour,  261.  Although  therefore 
the  master  of  a  vessel  or  the  owner  of  a  factory,  may  be  entitled  to  express  an 
opinion,  whether  a  particular  mode  of  constructing  one  or  equipping  the 
other,  increases  the  danger  of  loss  at  sea,  or  by  fire ;  yet  this  can  hardly  be 


55G  smith's   leading    cases. 

said  of  the  president  or  officers  of  an  insurance  company,  who  may 
be  well  acquainted  with  the  details  of  their  own  business,  but  can  not 
be  presumed  to  have  such  a  special  knowledge  of  the  different  risks  which 
they  insure,  as  make  their  conclusions  a  proper  foundation  for  those  of  the 
jury.  II. 


[*287] 


=^T.ICE    Y.   SHUTE. 


EASTER— 1  GEO.  3  B.  R. 

[REPORTED,  BURR.  2611.] 

In  an  action  ex  contractu,  the  non-joinder  of  a  co-contractor  as  defendant  can  be 
taken  advantage  of  by  plea  in  abatement  only. 

This  was  an  action  brought  against  one  partner  only,  on  a  partnership 
account. 

At  the  trial  ("which  was  before  Mr.  Justice  Bathurst,)  the  defendant  gave 
evidence  that  there  was  another  partner,  named  Cole,  who  was  not  joined  in 
the  action,  as  a  defendant;  which  he  ought  to  have  been,  as  the  plaintiff 
knew  the  fact  to  be  so. 

Whereupon  the  plaintiff  was  nonsuited. 

Mr.  Serjeant  Burland  moved,  upon  the  5th  of  this  instant.  May,  1770, 
on  behalf  of  the  plaintiff,  to  set  aside  this  nonsuit,  and  to  have  a  new  trial. 
It  appeared  upon  the  Judge's  report  that  the  plaintiff  could  not  but  know 
of  the  partnership  :  for  that  all  the  letters  shewed,  and  it  was  even  stated 
upon  the  very  account  itself,  "that  Cole  and  Shute  were  partners."  So 
that  the  plaintiff  was  not  surprised  by  the  defendant's  producing  this  evi- 
dence of  a  partnership :  on  the  contrary,  he  had  brough  his  action  in  this 
manner  against  the  present  defendant  alone,  with  a  deliberate  design  to  take 
some  advantage  of  him. 

The  Serjeant's  objection  was,  that  this  matter  could  not  be  given  in  evi- 
dence, but  ought  to  have  been  pleaded  in  abatement. 

The  court  gave  him  a  rule  to  shew  why  the  nonsuit  should  not  be  set 
aside,  and  a  new  trial  Jiad. 
r*9S8n  *Mr.  Serjeant  Davy  now,  on  this  14th  of  May,  shewed  cause. 
L  -^  He  said,  it  would  be  very  mischievous,  if  a  person  having  a  de- 
mand upon  a  partnership  should  be  left  at  liberty  to  cull  out  one  parti- 
cular partner,  and  bring  an  action  against  him  alone,  leaving  out  the  rest  of 
the  partners. 


RICE    V.     S  H  U  T  E.  557 

la  the  case  of  Boson  v.  Sandford,  2  Salk.  440,  the  court  held  "  that  all 
the  part-owners  of  the  ship  must  be  joined;"  and  they  gave  judgment  for 
the  defendant,  because  all  the  owners  were  not  joined. 

This  may  undoubtedly  be  pleaded  in  abatement :  but  it  is  not  necessary 
that  in  all  cases  whatsoever  it  must  be  pleaded  in  abatement.  In  some 
cases,  and  under  certain  circumstances,  and  particularly  where  it  is  within 
the  plaintiff's  own  knowledge  "  that  there  are  more  partners,"  it  may  be 
given  in  evidence,  without  pleading  it  in  abatement. 

Here  the  plaintiff  knew  that  Cole  was  partner  with  the  defendant.  He 
was  not  surprised  by  this  evidence  :  he  acted  with  his  eyes  open,  and  with 
a  deliberate  design  to  take  an  unfair  advantage. 

If  the  defendant  had  pleaded  in  abatement,  he  must  have  shewn  who  his 
partners  were  :  and  then  the  plaintiff,  being  thus  informed  who  they  were, 
must  have  brought  a  new  action  against  them  all.  But  in  the  present  case 
the  plaintiff  already  knew,  of  his  own  previous  knowledge,  '^  who  were  the 
partners :"  and,  therefore,  he  was  as  much  obliged  to  bring  his  action  origi- 
nally against  them  all,  as  he  would  have  been  obliged  to  bring  a  new  action 
against  them  all,  if  he  had  come  at  that  knowledge  only  by  the  defendant's 
plea  in  abatement.  As  soon  as  he  knows  who  the  partners  are,  he  is 
obliged  to  bring  his  action  against  them  all,  however  he  may  come  at  this 
knowledge.  He  cannot,  after  having  obtained  this  knowledge,  select  one, 
and  omit  the  rest.  Its  being  pleadable  in  abatement  shews  that  he  cannot 
omit  any  one,  if  in  fact  there  are  moi'e  than  one.  And  if  he  does  it  before 
he  brings  his  action,  it  is  more  expeditious  and  more  reasonable,  that  he 
should  join  them  all  at  first. 

And  though  it  may  have  been  heretofore  holden,  "  that  it  could  not  be 
given  in  evidence;"  yet  that  was  only  an  *opinion  at  Nisi  Prius:  |-^_^„„-, 
there  never  has  been  any  such  determination  of  this  court,  or  any  L  "  J 
where  else  in  your  lordship's  time.  And  if  it  has  been  ever  holden  "  that 
it  was  sufficient  to  make  the  acting  partners  defendants,"  the  rule  has  been 
since  established,  "  that  all  must  be  joined,  if  known." 

He,  therefore,  prayed  that  the  nonsuit  might  be  recorded. 

Serjeant  Burland  was  proceeding  to  support  his  rule;  but  was  stopped 
by  Lord  Mansfield,  as  not  being  necessary. 
Lord  Mansfield — 

To  be  sure,  a  distinction  is  to  be  found  in  the  books,  between  torts  and 
assumpsits — <'  that  in  torts,  all  the  trespassers  need  not  be  made  parties : 
but  in  actions  upon  contract  every  partner  must  be  made  a  defendant." 
Many  nonsuits,  much  vexation,  and  great  hinderance  to  justice,  have  been 
occasioned  by  this  distinction.  It  must  have  been  introduced  originally 
from  the  semblance  of  convenience,  that  there  might  be  one  judgment 
against  all  who  were  liable  to  the  plaintiff's  demand.  But  experience  shews 
that  convenience,  as  well  as  justice,  lies  the  other  way.  All  contracts  with 
partners  are  joint  and  several :  every  partner  is  liable  to  pay  the  whole.  In  what 
proportion  the  others  should  contribute  is  a  matter  merely  among  themselves. 
A  creditor  knows  with  whom  he  dealt :  but  he  does  not  know  the  secret 
partner.  He  may  be  nonsuited  twenty  times  before  he  learns  them  all;  or 
driven  to  a  suit  in  equity,  for  a  discovery,  <'  who  they  are."  It  is  cruel  to 
turn  a  creditor  round,  and  make  him  pay  the  whole  costs  of  a  nonsuit,  in 
favour  of  a  defendant  who  is  certainly  liable  to  pay  his  whole  demand;  and 


558  smith's    leading    cases. 

who  is  not  injured  by  another  partner's  not  being  made  defendant;  because, 
wliat  he  pays,  he  must  have  credit  for,  in  his  account  •\vith  the  partnership. 
Upon  this  point,  I  very  early  consulted  the  three  other  Judges  of  this 
Court,  Mr.  Justice  Denison,  Mr.  Justice  Foster,  and  Mr.  Justice  Wilmot. 
They  were  all  of  opinion,  "  that  the  defendant  ought  to  plead  it  in  abate- 
ment ;"  he  then  must  say  "  who  the  partners  are."  If  the  defendant  does 
not  take  advantage  of  it  at  the  beginning  of  the  suit,  and  plead  it  in  abate- 
ment, it  is  a  waiver  of  the  objection.  He  ought  not  to  be  permitted  to  lie 
r*OQm  ^y'  ^°*^  P^^^  *^*^  plaintiff  to  the  delay  and  expense  of  a  trial,  and 
L  "  -'  *then  set  up  a  plea  not  founded  in  the  merits  of  the  cause,  but  on 
the  form  of  proceeding.  The  old  cases  make  no  distinction  between  the 
plaintiff's  knowing  of  a  partnership  or  not.  Here,  indeed,  the  plaintiff 
knew  of  it :  but  the  present  defendant  was  the  person  with  whom  he  trans- 
acted. He  must  be  allowed  this,  in  his  account  with  the  other  partners. 
No  injustice  is  done  to  the  defendant,  by  allowing  the  plaintiff  to  recover  : 
but  great  injustice  is  done  to  the  plaintiff,  by  allowing  the  nonsuit  to  stand; 
and,  what  is  still  worse,  a  mode  of  litigation  allowed  which  is  highly  incon- 
venient. 

Mr.  Justice  Asldon  concurred. 

He  said,  that  as  his  lordship  had  gone  through  the  whole,  be  would  not 
repeat  what  had  been  already  mentioned  :  but  he  observed,  that  there  was 
no  necessity  for  admitting  it  to  be  given  in  evidence ;  nor  any  inconvenience 
in  pleading  it  in  abatement;  and  the  not  pleading  it  in  abatement  seemed 
to  be  a  waiver  of  the  objection. 

The  case  in  which  Mr.  Justice  Yates  tried  the  cause  was  a  contract  about 
wood :  but  it  was  never  decided  here  by  the  court. 

He  took  notice,  that,  upon  a  joint  bond,  the  action  cannot  be  brought 
against  one  of  the  obligors  only.  This  was  the  point  of  a  case  in  Michael- 
mas Term,  1750,  24  Gr.  2,  in  this  court ;  which  was  argued  by  the  now 
Lord  Lifford ;  the  name  of  it  was  Horner  v.  Moor.'j'  rf  I  have  note  of  this 
case.  ''  Non  est  factum"  was  pleaded :  and  the  jury  found  it  to  be  the  deed 
of  both.  Mr.  Sergeant  Hewitt  moved  in  arrest  of  judgment,  ^ipon  the.  face 
vf  the  declaration.  He  acknowledged,  that  it  could  not  have  been  moved 
in  arrest  of  judgment,  if  it  had  not  appeared  upon  the  face  of  the  declara- 
tion :  hut  it  there  appeared,  that  both  had  sealed  the  obligation,  and  both 
were  living.  lie  otoned,  that  if  it  had  not  appeared  upon  the  face  of  the 
declaration,  it  rmist  have  been  averred.  Mr.  Ford,  who  was  for  the  plaintiff, 
gave  it  up;  and  the  judgment  was  arrested.] 

Mr.  Justice  Willcs  and  Mr.  Justice  Blackstone  being  both  of  the  same 
opinion, 

The  whole  court  were  unanimous  that  the  nonsuit  ought  to  be  set  aside, 
and  a  new  trial  had. 

Rule  made  absolute. 

*[N.  B.  There  was  a  case  solemnly  argued  and  determined  in  the  Com- 
mon Pleas  upon  this  point,  in  Easter  Term,  1774,  14  G.  3,  and  they  held, 
upon  the  authority  even  of  cases  in  the  year-books,  "  that  it  should  be 
pleaded  in  aba-tement."  The  name  of  it  was  Abbot  v.  Smith.  After  argu- 
ment, it  stood  for  the  opinion  of  the  court :  and  Lord  Chief  Justice  De 
Grey  afterwards  delivered  their  opinion.     Pie  observed,  that  this  was  not  a 


RICE     V.     S  H  U  T  E. 


559 


novel  doctrine  or  invention;  in  proof  of  which  he  cited  Trin.  9  E.  4,  24, 
b.,  10  E.  4,  5,  a.,  et  post;  36  11.  G,  38;  and  Book,  Brief,  37.  And  he 
took  notice,  that  this  case,  just  now  reported  (of  Eice  v.  Shute,)  went  on 
the  general  principle  that  the  court  then  went  upon  in  the  case  of  Abbot  v. 
Smith.* 

I  was  favoured  with  an  account  of  this  case  of  Abbot  v.  Smith,  by  a  very 
learned  Judge  of  the  court  in  which  it  was  determined.] 


Accordingly  it  has  ever  since  been 
held  that  the  non-joinder  of  a  joint- 
contractor,  as  defendant  in  an  action  ex 
contractu,  must,  if  advantage  is  to  be 
taken  of  it  at  all,  be  pleaded  in  abate- 
ment. {S  P,  Zeile  and  Becker  v.  Ex- 
ecutors of  Campbell,  2  Johnson's  Cases, 
382  ;  Seymour  v.  Minturn,  17  Jolinson, 
169;  Williams  v.  Allen,  7  Cowen,  310; 
Gay  V.  Cary,  9  id.  44;  VVitmer  et  al.  v. 
Sclilatter  et  al.,  15  Sergeant  &  Rawle, 
151) ;  S.  C.  2  Rawle,  359 ;  Moore's  Ex- 
ecutors V.  Russell,  2  Bibb,  442 ;  Robin- 
son V.  Robinson,  1  Fairfield,  240;  Wins- 
low  V.  IMerrill,  2  id.  127;  VVbite  v. 
Cushing,30  Maine,  267;  Mershon  et  al. 
V.  Hobensack,  2  Zabriskie,  373,  380; 
Barnett  &l  Woolfolk  v.  Watson  &  Urqii- 
hart,  1  Washington,  372;  &c.  'J'he 
opinion  of  Judge  Washington,  in  Jordan 
V.  Wilkins,  3  Washington,  C.  C.  110, 
that  where  the  declaration  is  general, 
nnd  there  is  no  bill  of  particulars,  so  that 
the  defendant  has  no  notice  that  he  is 
sued  on  a  joint  contract,  non-joinder  is 
ground  of  non-suit,  is  expressly  overruled 
by  Chief  Justice  Marshall  in  Barry  v. 
Fuyles,  1  Peters,  311;  and  is  again 
overruled  in  Grubb  v.  Foltz,  4  Watts  & 
Sergeant,  549.  If  the  executor  of  one 
of  two  obligors  be  sued,  tiie  fact  that 
the  other  obligor  survives  or  survived 
the  testator,  cannot  be  given  in  evidence 
under  the  general  issue,  or  the  plea  of 
payment  or  of  covenants  performed,  &c. ; 
but  if  the  objection  appear  on  the  record 
it  is  fatal  to  the  action,  and  if  it  appear 
not  in  the  declaration,  it  should  be  put 
on  the  record  by  plea  in  abatement,  or 
rather  by  special  plea  in  bar.  Geddis 
and  another  v.  Hawk,  Executor  of  Hawk, 
10  Sergeant  &  Rawle,  33  ;  Hoiton  and 
Wife  V.  Cooke,  3  Walts,  40.}  The 
authorities  on  this  subject  are  cited,  and 


the  subject  itself  elaborately  discussed, 
in  the  notes  to  Cabell  v.  Vaughan,  1 
Wms.  Saund.  291,  where  it  is  remarked 
that  the  observation  of  J\lr.  J.  Aston, 
respecting  joint  bonds,  is  too  large,  and 
that  he  must  be  understood  to  have 
meant  that  the  action  cannot  be  main- 
tained against  one  co-obligor  jy^/ico^/ier 
plead  in  abatement,  except  indeed  in 
such  a  case  as  that  of  Moore  v.  Horner, 
as  explained  by  the  reporter,  where  the 
fact  that  two  persons,  both  of  whom 
executed  the  bond,  are  still  living  ap- 
pears on  the  face  of  the  record.  {If 
the  declaration  does  not  show  that 
others  were  jointly  bound,  but  on  oyer, 
the  deed  contains  the  names  of  others 
as  co-obligors,  you  cannot  demur,  bo- 
cause  from  the  instrument  itself  as  set 
forth  on  oyer,  it  does  not  appear  that 
the  others  sealed:  you  must  therefore 
by  plea  in  abatement  aver  that  the 
others  sealed,  and  in  such  case  must  add 
that  they  are  still  alive,  for  every  plea 
in  abatement  is  taken  strictly  agauist 
him  who  pleads  it ;  see  Dauchy  v. 
Smith  &  Olmsted,  Kirby,  1(!(5;  M'Ar- 
thur  V.  Ladd,  5  Hammond's  Ohio,  514; 
Morgan  v.  Crim,  1  Monroe,  129;  Allen 
V.  Luckett,  3  J.  J.  Marshall,  104;  but 
where  the  fact  that  another  was  jointly 
bound  and  liable,  whether  by  deed,  sim- 
ple contract,  or  matter  of  record,  appears 
on  the  face  of  the  declaration,  the  better 
opinion  is,  against  the  view  of  Mr.  Ser- 
jeant Williams,  that  the  other  is  pre- 
sumed to  be  still  living,  and  that  the 
declaration  may  be  demurred  upon,  or 
judgment  arrested,  or  reversed  on  error, 
unless  the  plaintiff"  aver  in  his  declara- 
tion that  the  other  is  dead.  In  (iilmnn 
V.  Rives,  10  Peters,  298,  it  was  decided 
that  in  suits  on  recognizances,  and  judg- 
ments,  and    other    matters   of   record, 


See  2  Bl.  947,  where  ibis  case  is  reported. 


5G0 


smith's   leading   cases. 


where  one  is  sued,  and  the  writ  or  de- 
claration shows  liiat  another  was  jointly 
bound,  it  is  fatal  on  demurrer  or  arrest 
of  jiulginent,  if  the  plaintiff  docs  not 
aver  lliat  the  other  is  dead;  though  a 
distinction  is  sugf^ested  between  records 
and  deeds.  In  Virginia,  it  has  repeat- 
edly been  decided,  that  in  suits  on  bonds, 
where  the  declaration  showf^' that  ano- 
ther was  jointly  boun  1  and  does  not 
aver  that  he  is  dead,  it  is  bad  on  de- 
murrer or  writ  of  error;  Leftwich  and 
others  v.  Berkley,  1  Hening'  &  Mun- 
ford,  61 ;  Saunders  v.  Wood,  1  Mun- 
ford,  406;  Newell  v.  Wood,  id.  555; 
Newman  v.  Graham,  3  id.  187:  and 
see  Winslow  et  al.  v.  Com.Tionwealth, 
2  Hening  &  Munford,  459,  of  which 
the  syllabus  is  wrong.  And  in  the 
case  of  promissory  notes,  it  was  decided 
by  C.  J.  Mellen,  in  the  case  of  Har- 
wood  et  al.  v.  Roberts,  5  Greenleaf,  441, 
that  when  the  declaration  shows  that 
more  were  parties  than  are  sued,  the 
plaintiff  must  allege  that  the  others 
are  dead,  or  judgment  will  be  reversed  : 
and  in  case  of  simple  contracts  gener- 
ally, the  dictum  of  Chief  Justice  Mar- 
shall in  Barry  v.  Foyles,  1  Peters,  311, 
317,  is,  that  "  if  the  declaration  were  to 
show  a  partnership  contract,  the  judg- 
ment against  the  single  partner  could  not 
be  sustained."  There  are,  however,  seve- 
ral decisions  and  opinions  to  the  contrary. 
In  Mackall  v.  Roberts,  3  Monroe,  130,  in 
an  action  on  a  joint  note  against  one  of 
the  makers,  the  court  below  on  demur- 
rer gave  judgment  for  the  defendant; 
and  on  writ  of  error,  this  was  reversed, 
the  court  saying  that  in  cases  where  all 
the  persons  are  not  joined  as  defendants, 
who  ought  to  have  been  joined,  the  lav/ 
is  well  settled  that  no  advantage  can  be 
taken  of  the  non-joinder,  but  by  plea  in 
abatement;  and  the  same  practice  is 
approved  in  Harrow  v.  Dugan,  6  Dana, 
341,  342,  and  Tharp  v.  Farquar,  6  B. 
Monroe,  3;  and  more  expressly  de- 
cided in  Common  wealth  for  M'Creery 
V.  Davis,  9  B.  Monroe,  123.  In 
Nealley  v.  Moulton,  12  New  Hamp- 
shire, 485,  the  argument  of  the  court  is, 
that  in  no  case,  not  even  where  the 
fact  tliat  there  is  a  joint-contractor  liv- 
ing appears  on  the  face  of  the  pleadings, 
can  the  non-joinder  be  taken  advantage 
of,  otherwise  than  by  y)lea  in  abatement. 
In  Lillard  v.  The  Planter's  Bank,  3 
Howard's  Mississippi,  78,  it  is  admitted 
that  if  it  appear  in  the  declaration  that 
another  party  jointly  contracted  and  is 


still  living,  the  defendant  may  demur; 
but  it  is  said  that  if  it  does  not  appear 
there  that  he  is  still  living,  there  must 
be  a  ])lea  in  abatement;  and  the  dictum 
in  Geddis  and  another  v.  Hawk,  10  Ser- 
geant &  Rawle,  33,  38,  is  to  the  same 
effect.  In  Burgess  v.  Abbott,  1  Hill's 
N.  Y.  476,  which  was  debt  against  one, 
on  a  judgment  of  a  court  of  another 
state  against  two,  where  it  did  not  ap- 
pear expressly  that  the  other  was  living, 
on  general  demurrer,  it  was  decided  in 
the  Supreme  Court  by  Cowen,  J.  "not 
without  some  hesitation,"  that  objection 
could  not  be  taken  by  demurrer  unless 
it  appeared  in  the  pleadings  that  'the 
other  was  alive ;  and  ho  thought  there 
could  be  no  difference  between  scire 
facias  on  a  record,  and  debt  on  a  record  ; 
and  the  judgment  in  favour  of  the  plain- 
tiff in  this  case  was  affirmed  in  the 
court  of  errors ;  one  Senator  holding 
that  the  objection  could  be  taken  advan- 
tage of,  only  by  plea  in  abatement,  and 
the  chancellor  holding  that  though  the 
objection  might  be  laken  on  special 
demurrer,  it  could  not  on  general  de- 
murrer, unless  it  appeared  affirmatively 
that  the  other  was  alive,  or  unless  in 
case  of  scire  facias  on  a  record ;  Bur- 
gess V.  Abbott,  6  id.  135.  In  The 
State  of  Indiana  v.  Woram,  id.  33,  it 
was  decided  by  the  Supreme  Court  that 
the  non-joinder  of  a  defendant  corpora- 
tion could  not  be  taken  advantage  of  on 
general  demurrer,  where  it  did  not  ap- 
pear affirmatively  that  the  corporation 
was  still  in  existence,  In  Converse  v. 
Symms,  10  Massachusetts,  377,  it  is  de- 
cided that  judgment  will  not  be  arrested 
when  the  non-joinder  is  disclosed  by  plea 
in  bar.  In  Cocks  v.  Brewer,  11  Meeson 
&  Welsby,  51,  where  it  was  decided  in 
debt  on  judgment,  that  non-joinder  is 
not  a  ground  oi'  variance,  there  is  a  dic- 
tion of  Lord  Abinger,  C.  B.  that  the  ob- 
jection could  be  taken  advantage  of  only, 
if  at  all,  by  plea  in  abatement,  but  it  was 
admitted  that  in  scire  facias  on  a  judg- 
ment the  omission  of  a  defendant,  with- 
out the  cause  being  stated,  as  that  he  is 
dead  or  the  like,  is  demurrable,  because 
the  sci.  fa.  is  a  quasi  continuation  of 
a  matter  of  record.  In  Morrison  v. 
Trenchard,  4  M.  &  Gr.  709,  there  is  an 
obiter  dictum  of  Tindal,  C.  J.,  that  if  the 
promise  appear  in  the  declaration  to  be 
joint,  and  the  suit  be  against  one,  it 
would  be  ground  only  for  plea  in  abate- 
ment, and  not  for  special  demurrer;  but 
the  remark  was  extra-judicial  as  the  de- 


RICE    V.     S  H  U  T  E. 


561 


claration  in  that  case  showed  that  the 
promiso  was  j(jint  and  sevcriil.  In 
Needham  et  al.  v.  Heath,  17  Vermont, 
224,  22.'),  which  was  an  action  of 
debt  upon  a  recog-nizance,  wiiere  the 
plaintiff  having  set  out  the  reco<,mizance 
in  the  declaration,  which  showed  that 
there  was  another  cognizor,  without  its 
appearing  whether  or  not  he  was  alive ; 
the  declaration  was  adjudged  to  be  bad 
on  general  demurrer.  And  Bennett,  J., 
delivering  judgment,  in  tliat  case,  said, 
"The  law  is  well  settled,  that,  if  one 
obligor  be  sued  alone  upon  a  joint-bond, 
and  it  appear  from  the  declaration  that 
the  other  obligor  is  living,  the  declara- 
tion is  ill  upon  demurrer.  It  would 
seem,  however,  that,  in  sucli  case,  unless 
it  appears  from  the  declaration,  or  the 
subsequent  pleadings  of  the  plaintiff, 
that  the  other  obligor  is  still  living,  the 
objection  cannot  be  reached  by  a  de- 
murrer, a  motion  in  arrest,  or  a  writ  of 
error.  It  is  proper  matter  to  be  pleaded 
in  abatement.  But  the  doctrine  which 
has  been  applied  to  joint  obligations, 
does  not  seem  fully  to  have  been  extend- 
ed to  cases  of  joint  recognizances,  judg- 
ments, and  other  matters  of  record.  In 
these  cases,  it  has  been  held,  that,  if  it 
appear  from  the  declaration,  or  other 
pleadings  of  the  plaintiff,  that  there  is 
another  joint  debtor,  who  is  not  sued, 
the  objection  may  be  taken  advantage 
of  by  a  demurrer,  or  upon  a  motion  in 
arrest  of  judgment,  although  it  is  not 
averred  that  he  is  still  living."  But  in 
a  later  case,  in  the  same  court,  this  sup- 
posed distinction  was  discredited.  It 
was  held  that  in  scire  facias  on  a  recog- 
nizance, the  non-joinder  of  parties  could 
not  be  taken  advantage  of  upon  trial,  on 
a  plea,  of  nul  tiel  record.  And  Redfield, 
J.,  giving  judgment,  said,  •'  The  rule 
and  the  reason  for  it,  seem  to  us  to  be 
the  same,  whether  the  declaration  be 
upon  a  contract  of  record,  or  upon  any 
other  contract ;  as,  for  example,  a  bill, 
note,  or  bond.  And  in  all  these  cases, 
it  is  well  settled  tliat  the  omission  of  a 
joint  contractor  can  only  be  taken  ad- 
vantage of  by  plea  in  abatement,  unless 
such  omission  appear  upon  the  record, 
that  is,  the  record  of  the  very  suit  upon 
trial ;  and  in  that  case  it  may  be  taken 
advantage  of  by  demurrer,  motion  in 
arrest  of  judgment,  or  writ  of  error. 
And  in  the  present  case,  if  the  defend- 
ants had  craved  oyer  of  the  record  de- 
clared upon,  and,  alter  setting  it  out,  had 
demurred,  the  defect  complained  of,  ap- 

VOL.  I.— 86 


pr^aring  of  record,  must  have  been  fital. 
It  i.s  said,  in  some  of  the  books,  that  it 
must  appear  of  record,  that  the  joint 
contractor  omitted  is  still  living,  in 
order  to  take  advantage  of  the  non- 
joinder by  demurrer,  &c.  :  but  this,  I 
apprehend,  is  to  be  presumed,  for  at  least 
seven  years,  unless  the  contrary  appear." 
McGregor  v.  Balch  et  al.,  id.  56;J,  567. 
These  opinions  are  so  discordant  and 
uncertain,  that  they  cannot  be  considered 
as  overthrowing  a  principle  so  clearly 
founded  in  reason,  as  tliat  where  a  joint 
liability  appears  on  the  declaration  in  a 
suit  against  one,  the  non-joinder  is  fatal 
on  general  demurrer,  or  in  arrest  of 
judgment.}  There  are  some  cases  in 
which  the  non-joinder  of  a  joint  con- 
tractor cannot  be  taken  advantage  of  in 
any  way  whatever.  Thus,  though  it 
seems  to  be  assumed,  in  the  principal 
case,  that  the  non-joinder  of  a  secret 
partner  might  be  ground  of  a  plea  in 
abatement;  and  was  indeed,  afterwards, 
so  decided  in  Dubois  v.  Ludert,  8 
Taunt.  9;  1  Marsh.  246;  yet  that 
case  was  soon  disregarded  in  practice 
and  at  last  solemnly  overruled.  Mullet 
v.  Hook,  1  M.  &  Mai.  88;  De  Mau- 
tort  v.  Saunders,  1  B.  &  Adol.  ;W8;  and, 
therefore  if  issue  be  joined  upon  a  plea 
in  abatement  of  non-joiuder,  the  jury 
are  directed  to  consider  with  whom  had 
the  plaintiff  reason  to  believe  that  he 
contracted.  [Bonfield  v.  Smith,  12  M. 
&  VV.  405,  where  the  judge  left  it  to 
the  jury  to  say  if  the  defendant  gave  the 
plaintiffs  reason  to  believe  that  he  alone 
constituted  the  firm.]  {See  also  Peck 
v.  Cowing,  1  Denio,  222;  and  Alexander 
V.  M'Ginn,  3  Watts,  220.} 

Statutes  G.  4,  c.  14,  commonly  called 
Lord  Tenterden's  Act,  and  which  re- 
quires a  writing  signed  to  take  a  debt  out 
of  the  statute  of  limitations,  further  en- 
acts that  the  written  acknowledgment  of 
one  joint  contractor  shall  not  charge 
another,  and  directs  that  if  non-joinder  of 
a  joint-contractor  be  pleaded  in  abate- 
ment, and  it  appear  that  by  reason  of  the 
St.  21  Jac.  1,  cap.  16,  or  of  that  act,  no 
action  could  be  maintained  against  the 
person  whose  non-joinder  is  pleaded,  the 
issue  shall  be  found  against  the  party 
pleading  such  plea.  By  stat.  3  &  4  VV. 
4,  c.  42,  s.  9,  the  bankruptcy  and  certifi- 
cate, or  the  discharge  under  an  insolvent 
act  of  a  co-conlractor,  may  be  replied  to 
a  plea  of  abatement  of  his  non-joinder. 
And  that  act  throws  considerable  imped- 
iment in  the  way  of  such  pleas,  by  enact- 


562 


SMITH'S      LEADING     CASES. 


ing',  in  sec.  8,  tliat  no  such  plra  shall  be 
allowed,  unless  the  co-dc tent! ant,  whose 
non-joinder  is  pleaded,  be  therein  stated 
to  be  resident  within  the  jurisdiction  of 
the  court,  and  unless  the  place  of  his 
residence  be  stated  with  convenient  cer- 
tainty in  an  affidavit,  verifying  such  plea. 
The  effect  of  this  will  be  to  put  an  end 
r*9qoi  ^'^  ^  ^^^y  considerable  *inconve- 
^  "-'  nience;  for  it  was  held  that 
where  there  were  two  defendants  in  one 
action,  one  of  whom  resided  out  of  the 
jurif^diction  of  the  court,  and  so  could  not 
be  served  with  process,  it  was  necessary 
that  he  should  be  outlawed  before  declar- 
ing against  the  other.  Now,  however, 
as  the  non-joinder  of  the  defendant  re- 
siding out  of  the  jurisdiction  cannot  be 
pleaded  in  abatennent,  the  plaintiff's 
course  will  be  to  omit  him  altogether, 
and  sue  the  one  residing  within  the  juris- 
diction. [And  if  one  of  several  co-con- 
tractors reside  out  of  the  jurisdiction, 
there  can  be  no  plea  in  abatement  for 
non-joinder  of  those  who  are  within  the 
jurisdiction,  Joll  v.  Lord  Curzon,  4  C.  B. 
r*oq9  1  ^'^^-  '^''^  affidavit  is  to  state 
'-  "  ^  the  *domicilc,  or  home  of  the 
party,  and  not  the  spot  where  he  actually 
is  at  the  time,  Lamb  v.  Smythe,  15  M. 
&.  W.  4'33;  see  VVheatley  v.  Golney,  9 
Dowl.  1019.  Where  it  contained  a  false 
statement  of  residence,  the  pica  was  set 
aside,  Newton  v.  Stewart,  4  D.  &  L.  89  ] 
The  same  statute  further  enacts,  at  sec. 
10,  that  whenever  such  a  plea  is  pleaded, 
and  the  plaintiff,  without  proceeding  to 
trial  on  an  issue  thereon,  commences  a 
new  action,  joining  the  party  named  in 
the  plea  as  a  joint-contractor,  if  it  turn 
out  that  all  the  original  defendants  are 
liable,  but  that  some  person  or  persons 
named  in  the  plea  in  abatement  are  not 
liable' as  a  contracting  party  or  parlies, 
the  plaintiff  is  to  succeed  against  those 
who  are  liable;  and  though  the  party 
who  is  not  liable  is  to  recover  his  costs 
against  the  plaintiff,  the  plaintiff  is  to  be 
allowed  them  as  costs  in  the  cause  against 
the  party  who  pleaded  the  plea  in  abate- 
ment. [As  to  the  course  of  proceeding 
at  the  trial  under  this  section,  see  Beale 
V.  Mouls,  1  Car.  &  K.  1.]  By  1  W.  4, 
c.  69,  sec.  5,  any  one  or  more  of  mail- 
contractors,  stage-coach  proprietors,  or 
common  carriers,  may  be  sued  in  his, 
her,  or  their  name  or  names  only,  and  no 

action  or  suit  for  damages,  for  loss  or  in- 
jury to  any   parcel,  package,  or  person, 

shall  abate  for  non-joinder  of  any  co-con- 

r  actor  or  co-proprietor. 


[One  consequence  of  the  doctrine  es- 
tablished in  Rice  v.  Shute  is  that  if  one 
joint  contractor  sued  alone,  and  not  plead- 
ing in  abatement,  happens  to  have  a  de- 
fence grounded  on  the  joint  nature  oft  he 
debt,  such,  f)r  instance,  as  a  set-off,  he 
must  and  may  plead,  averring  the  debt  to 
have  been  joint,  tStackwood  v.  Dunn,  3 
Q.  B.  823.  Another  is,  that  a  judgment, 
(though  unsatisfied)  against  one  of  two 
joint,  (not  joint  and  several)  debtors,  is  a 
bar  to  an  action  against  the  other.  King 
v;  Hoare,  13  M.  &  VV.  494.  There  is  a 
distinction  between  scire  facias  and  other 
forms  of  action  in  this  respect:  scire  fa- 
cias being  a  proceeding  to  have  execu- 
tion of  a  record  must  follow  its  terms  and 
include  all  the  defendants,  or  account  for 
their  omission ;  but  debt  on  a  record 
stands  on  the  same  ground  as  debt  on 
contract ;  and  the  omission  of  one  of  the 
original  defendants  is  not  a  variance  at 
the  trial  of  an  issue  upon  nul  tiel  record 
in  such  an  action,  Cocks  v.  Brewer,  11 
M.  &  VV.  51.  A  statutory  scire  facias, 
founded  on  a  judgment  against  the  pub- 
lic officer  ofa  joint  stock  company,  stands 
upon  quite  a  different  footing,  and  is  not 
open  even  to  a  plea  in  abatement  for  non- 
joinder of  other  members  than  the  one 
proceeded  against.  Fowler  v.  Rickerby,  2 
JMan.  &  Gr.^760,  3  Sc.  N.  R.  138,  S.  C] 

[In  actions,  ex  delicto,  no  objection 
can  be  taken  on  accountof  non-joinder  of 
defendants,  for  in  torts,  each  is  answera- 
ble fijr  the  act  ofall.  Livingston  v.  Bish- 
op, 1  Johnson,  290;  Rose  v.  Oliver  and 
others,  2  id.  36ei.  Actions  called  quasi 
e.\  contractu,  that  is,  where  the  form  of 
the  action  is  in  tort,  but  the  liability 
springs  from  a  joint  contract  or  interest, 
are  like  actions  ex  contractu  ;  and  non- 
joinder of  a  defendant  is  matter  in  abate- 
ment: Allen  V.  Sewall  and  others,  2 
Wendell,  327;  Low  v.  Mumford  & 
Mumford,  14  Jehnson,  426;  see  Patton, 
Kennedy  &  Foster  v.  Magrath  &  Brooks, 
Rice,  So.  Car,,  103;  but  this  principle 
must  be  considered  as  greatly  shaken,  if 
not  wholly  overruled,  by  the  case  of  Bank 
of  Orange  v.  Brown  and  five  others,  3 
Wendell,  158;  where,  in  case  of  com- 
mon carriers,  it  is  decided,  that  either 
case  or  assumpsit  lies,  and  which  ever 
action  is  chosen,  must  be  governed  by  its 
own  ruleas  to  joinder;  and  this  appears 
to  be  the  sounder  opinion.  Actions 
quasi  ex  delicto,  when  the  form  of  the 
action  is  in  contract,  but  the  ground  ot'it 
ex  delicto,  as  debt  for  a  penalty,  are  like 
actions  ex  delicto,  and  non-joinder  of  de 


RICE    V.     S  H  U  T  E. 


563 


fendants  is  no  objection;  Bontelle,  q.  t., 
&c.,  V.  NoiirsR,  4  Massachusetts,  481; 
Bnrnliam  v.  Webster,  5  id.  266;  Frost 
et  al.  V.  Rowse  et  al.  2  Greenleaf,  130.} 
The  non-joinder  of  a  person  vviio  ought 
to  be  co-plaintiff,  is  an  action  ex  con- 
tractu, generally  speaking,  fiital,  and 
will  be  ground  of  nonsuit,  or  if  it  appears 
r-MQ.-j/i  on  the  *record  will  constitute 
'-  ^'-'^  error;  1  VVms.  Saund.  291,  f. 
i;-^  Halsall  v.  Griffith,  2  C.  &  Mee.  679. 
[Slingsby's  case,  5  Rep.  18  b.  ;  Lane  v. 
Drinkwater,  3  Dowl.  223;  Foley  v.  Ad- 
denbrooke,  4  Q.  B.  197  :  Hopkinson  v. 
Lee.  6  Q.  B.  964  ;  Harold  v.  VVhitaker, 
Q.  B.  29  May,  1846,  15  L.  J.  345.  Sors- 
bie  V.  Park,  12  M.  &  W.  146;  Brad- 
burne  v.  Botfield,  14  M.  &  VV.  559.]  {S. 
P.  VVilsnn  V.  Wallace,  Executrix  of 
Wallace,  8  Sergeant  &Rawle,  53;  Dob 
&  Dob  V.  Ilalsey,  16  Johnson,  34 :  be- 
cause one  plaintiff  is  not  entitled  to  the 
whole,  and  he  knew  who  his  partner 
was;  Jordan  v.  VVilkins,  3  Washington, 
C.  C.  110, 114  :  but  see  Porterand  others 
V.  Cresson  and  others,  10  Sergeant  &. 
Ravvie,  257,  in  which  it  was  held  that  in 
a  suit  by  C.  W.  &.  Co.  on  a  single  bill  to 
C.  VV.  &.  Co.,  it  could  not  be  objected 
under  the  pleas  of  non  est  factum  and 
payrrent,  that  the  company  consisted  of 
four,  of  whom  some  were  not  named,  for 
the  court  will  intend  C.  W.  &  Co.  to  be 
the  name  of  the  four.}  In  actions  ex 
delicto  it  is  otherwise;  Sedgworth  v. 
Overend,7  T.  R.  279,  Addison  v.  Over- 
end,  6  T.  R.  766;  [Wallis  v.  Harison,  5 
M.  &  VV.  142;  Phillips  v.  Claggett,  10 
M.  &  W.  102,  2  Dowl.  N.  S.  25^,  S.  C. ; 
Broadbent  v.  Ledward,  11  Ad.  &  Ell. 
210,  a  case  of  detinue  ;]  and  even  in  ac- 
tions ex  contractu,  the  non-joinder  of  a 
co-executor  as  plaintit!'is  not  fatal,  unless 
taken  advantage  of  by  plea  in  abatement, 
1  Wms.  Saund.  291  g.  3  T.  R.  558 ;  1 
Chilt.  R.  71.  [See  Doe  d.  Starr  v. 
Wheeler,  15  M.  &  W.  633.]  And  the 
courts  have  of  late  hit  upon  a  mode  of 
obviating  the  ill  consequences  resulting 
from  the  joinder  of  too  few  or  too  many 
plaintiffs,  or  of  too  many  defendants;  for 
on  a  proper  case  being  made  out,  they 
have  allowed  the  party  making  the  mis- 
take to  amend  by  omitting  or  inserting  a 
name  or  names  as  the  case  required. 
Baker  V.  Neave,  3  Tyrwh.  R.  233;  1 
Chitt.  P.  Ed.  5,  p.  14,  n. ;  Lakin  v.  Wat- 


son, 4  Tyrwh.  839.  But  the  Court  of 
Queen's  Bench  has  since  refused  to  act 
on  the  authority  of  these  decisions.  Ro- 
berts V.  Bate,  6  Ad.  &  Ell.  778.  [And  in 
the  Court  of  Exchequer,  where  the  oow- 
er  of  amendment  has  been  more  exten- 
sively exercised,  although  the  name  of  a 
plaintiff  may  be  added.  Brown  v.  Fuller- 
ton,  14  M.  &  W.  556 ;  it  seems  that  the 
name  of  a  fresh  defendant  cannot,  with- 
out his  consent,  Goodchild  v.  Leadham, 
1  Exch.  706.  Nor  it  seems  will  such  an 
amendment  be  allowed  in  any  case,  ex- 
cept to  save  a  debt  from  the  operation  of 
the  statute  of  limitations;  an  object  the 
legitimacy  of  which  has  been  doubted  by 
Pollock,  C.  B.,  Christie  v.  Bell,  16  M.v& 
W.  669,  and  which  seems  in  some  degree 
anomalous ;  see  Plowden  v.  Thorpe,  7 
CI.  &  Fin.  137;  Thorpe  v.  Plowden,  14 
M.  &L  VV.  526,  the  effect  of  the  amend- 
ment being  in  fact  to  make  a  new  writ 
not  tested  of  the  day  it  issued.  See 
Campbell  v.  Smart,  5  C.  B.  196.  { In  this 
country,  an  amendment  adding  a  new 
plaintiff  is  not  allowed,  Wilson  v.  Wal- 
lace, 8  Sergeant  &  Rawle,  53 ;  nor 
changing  the  Christian  name  of  a  plain- 
tiff, Horback  v.  Knox,  8  Walts  &  Ser- 
geant, 30;  nor  adding  a  defendant,  Win- 
slow  v.  Merrill  et  al.,  2  Fairfield,  127; 
nor  striking  out  a  defendant,  Redington 
V.  Farraret  al.,  5  Greenleaf,  379:  but  an 
amendment  striking  out  a  married  wo- 
man improperly  made  defendant  in  cove- 
nant, was  allowed  in  Massachusetts; 
Colcord  et  al.  v.  Swan  and  ux.,  7  Mas- 
sachusetts, 291 ;  Parsons  v.  Plaisted  and 
others,  13  id.  189.  In  New  Hampshire, 
by  statute  of  July  4, 1834,  an  amendment 
may  be  made  discharging  one  of  the  de- 
fendants; Perley  v.  Brown,  12  ^qw 
Hampshire,  494.} 

The  whole  of  the  subject  of  non-join- 
der has  been  elaborately  discussed  in  the 
notes  to  Cabell  v.  Vaughan,  1  Wms. 
Saund.  291. 

{In  actions,  ex  contractu,  misjoinder 
of  either  plaintiffs  or  defendants  is  ground 
of  non-suit,  or  if  it  appear  on  the  re- 
cord, of  error.  Executors  of  Living.-ton 
v.  Tremper  and  others,  11  Johnson,  101 ; 
Elmendorph  v.  Tappen  and  others,  5 
id.  176;  Robertson  v.  Smith,  18  id. 
459;  Savage  &,  Bird  v.  Pierpont,  1  id. 
118;  Heron  v.  Hoffner  and  others,  3 
Rawle,  393.}  H.  B.   W, 


oGi  smith's    leading    cases. 


P293]  *K  E  E  C  H   V.    HA  L  L. 

MICH.— 19  GEO.   3. 

[reported,  dougl.  21.] 

\  mortg'ag'Re  may  recover  in  ejectment,  without  giving-  notice  to  quit,  against  a 
tennnt  who  claims  under  a  lease  from  the  mortgagor,  granted  after  the  mortgage 
without  tlie  privity  of  the  mortgagee. 

E.IECTMENT  tried  at  Gruildball  before  BuIIer,  Justice,  and  verdict  for  the 
plaiutiif.  After  a  motioa  for  a  new  trial  or  leave  to  enter  up  judgment  of 
nonsuit,  and  cause  shown,  the  court  took  time  to  consider:  and  now  Lord 
Mani^fidd  stated  the  case,  and  gave  the  opinion  of  the  court  as  follows  : 

Lord  Mansfield — This  is  an  ejectment  brought  for  a  warehouse  in  the  city, 
by  a  mortgagee,  against  a  lessee  under  a  lease  in  writing  for  seven  years, 
made  o/ter  (he  date  of  the  mortgage,  by  the  mortgagor,  who  had  continued 
in  possession.  The  lease  was  at  a  rack-rent.  The  mortgagee  had  no  notice 
of  the  lease,  nor  the  lessee  any  notice  of  the  mortgage.  The  defendant 
offered  to  attorn  to  the  mortgagee  before  the  ejectment  was  brought.  The 
plaintiff  is  willing  to  suffer  the  defendant  to  redeem.  There  was  no  notice  to 
quit :  so  that,  though  the  written  lease  should  be  bad,  if  the  lessee  is  to  be 
considered  as  tenant  from  i/car  to  year,  the  plaintiff  must  fail  in  this  action. 
The  question,  therefore,  for  the  court  to  decide  is,  whether  by  the  agreement 
understood  between  mortgagors  and  mortgagees,  which  is  that  the  latter  shall 
receive  interest,  and  the  former  keep  possession,  the  mortgagee  has  given  an 
implied  authority  to  the  mortgagor  to  let  from  year  to  year  at  a  rack-rent ; 
or  whether  he  may  not  treat  the  defendant  as  a  trespasser,  disseisor,  and 
r*9Qn  wrong-doer.  No  case  has  been  *cited  where  this  question  has  been 
L  "  J  agitated,  much  less  decided.  The  only  case  at  all  like  the  present, 
is  one  that  was  tried  before  me  on  the  home  circuit  (Belcher  v.  Collins  j) 
but  tliere  the  mortgagee  teas  privy  to  the  lease,  and  afterwards  by  a  knavish 
trick  wanted  to  turn  the  tenant  out.  I  do  not  wonder  that  such  a  case  has 
not  occurred  before.  Where  the  lease  is  not  a  beneficial  lease,  it  is  for  the 
interest  of  the  mortgagee  to  continue  the  tenant;  and  where  it  is,  the  tenant 
may  put  himself  in  the  place  of  the  mortgagor,  and  either  redeem  himself, 
or  get  a  friend  to  do  it.  The  idea  that  the  question  may  be  more  proper 
for  a  court  of  equity  goes  upon  a  mistake.  It  emphatically  belongs  to 
a  court  of  law,  in  opposition  to  a  court  of  equity ;  for  a  lessee  at  a 
rack-rent  is  a  purchaser  for  a  valuable  consideration,  and  in  every  case 
between  purchasers  for  a  valuable  consideration  a  court  of  equity  must 
follow,  not  lead  the  law.  On  full  consideration,  we  are  all  clearly  of  opin- 
ion, that  there  is  no  inference  of  fraud  or  consent  against  the  mortgagee,  to 
prevent  him  from  considering  the  lessee  as   a  wrong-doer.     It  is  rightly 


K  E  E  C  II     V.     HALL.  5C5 

admitted  that  if  the  mortgagee  had  encouraged  the  tenant  to  lay  out  money, 
he  could  not  maintain  this  action ;(a)  but  here  the  question  turns  upon  the 
agreement  between  the  mortgagor  and  mortgagee :  when  the  mortgagor  is 
left  in  possession,  the  true  inference  to  be  drawn  is  an  agreement  that  he 
shall  possess  the  premises  at  will  in  the  strictest  sense,  and  therefore  no 
notice  is  ever  given  him  to  quit,  and  he  is  not  even  entitled  to  reap  the  crop, 
as  other  tenants  at  will  are,  because  all  is  liahle  ^o  the  debt;  on  payment  of 
which  the  mortgagee's  title  ceases.  The  mortgagor  has  no  power,  express  or 
implied,  to  let  leases  not  subject  to  every  circumstance  of  the  mortgage.  If,  by 
implication,  the  mortgagor  had  such  a  power,  it  must  go  to  a  great  extent ;  to 
leases  where  a  fine  is  taken  on  a  renewal  for  lives.  The  tenant  stands  exactly 
in  the  situation  of  the  mortgagor.  The  possession  of  the  mortgagor  cannot 
be  considered  as  holding  out  a  false  appearance.  It  does  not  induce  a  belief 
that  there  is  no  mortgage ;  for  it  is  the  nature  of  the  transaction  that  the 
mortgagor  shall  continue  in  possession.  Whoever  wants  to  be  secure,  when 
he  takes  a  lease,  should  inquire  after  and  examine  the  title-deeds.  In  prac- 
tice, *indeed  (especially  in  the  case  of  great  estates,)  that  is  not  p*.oQf;i 
often  done,  because  the  tenant  relies  on  the  honour  of  his  landlord ;  L  ~  J 
but,  whenever  one  of  two  innocent  persons  must  be  a  loser,  the  rule  is,  qiti 
prior  est  temjwre  potior  est  Jure.  If  one  must  suffer,  it  is  he  who  has  not 
used  due  diligence  in  looking  into  the  title.  It  was  said  at  the  bar*,  that  if 
the  plaiutiif,  in  a  case  like  this,  can  recover,  he  will  also  be  entitled  to  the 
mesne  profits  from  the  tenant,  in  an  action  of  trespass,  which  would  be  a 
manifest  hardship  and  injustice,  as  the  tenant  would  then  pay  the  rent  twice. 
I  give  no  opinion  on  that  point ;  but  there  may  be  a  distinction,  for  the 
mortgagor  may  be  considered  as  receiving  the  rents  in  order  to  pay  the 
interest,  by  an  implied  authority  from  the  mortgagee,  till  he  determine  his 
will.  As  to  the  lessee's  right  to  reap  the  crop  which  he  may  have  sown 
previous  to  the  determination  of  the  will  of  the  mortgagee,  that  point  does  not 
arise,  in  this  case,  the  ejectment  being  for  a  warehouse ;  but,  however  that 
may  be,  it  could  be  no  bar  to  the  mortgagee's  recovering  in  ejectment.  It 
would  only  give  the  lessee  a  right  of  ingress  and  egress  to  take  the  crop ; 
as  to  which,  with  regard  to  tenants  at  will,  the  text  of  Littleton  is  clear. 
We  are  all  clearly  of  opinion  that  the  plaintiff  is  entitled  to  judgment. (6) 

The  Solicitor  General  for  the  defendant. — Dunning  and    Couper  for  the 
plaintiff. 

The  rule  discharged. 


TiiE  point  decided  in  this  case  has  sey.  8  B.  &  C.  767  ;  Tliunder  v.  Belcher, 
been  since  frequently  confirmed.  See  li  East,  449;  Smartle  v.  Williams,  3 
i.Hie  v.  {]\\c>,  5  Bing.  421;  Doe  v.  Mai-     Lev.  387,  1  Salk    245.     Li    Doe  dem. 

(a  !   Vide  Cinvp.  473, 

(/;}  When  ihc  question  was  argfued  at  the  bar,  Lord  Mansfield  said  he  entirely  approved 
of  wlj.it  li. id  been  done  by  Narrs,  Jnslice  upon  the  O.vford  circuit,  and  afierward.s  con- 
finned  liy  this  court,  in  the  case  of  White  v.  Hawkins,  viz.  not  to  suffer  a  lessee  under  a 
lease /);t'jr  to  the  mortgage  to  avail  himself  of  such  lease  on  an  ejectment  by  the  mort- 
gagee, if  he  has  had  notice  before  th(^  action  that  the  mortgagee  did  not  intend. to  turn 
liim  out  of  possession.  This  doctrine  is,  however,  lung  since  overruled.  Sec  Roe  v. 
Ueade,  8  T.  R.  118 ;  Doe  v.  Staple,  2  T.  R,  684. 


566 


SMITHS     LEADING     CASES. 


Rogers  v.  Cadawallader,  2  B.  &.  Atlol. 
47y,  the  wife  of  the  le!?sor  of  the  plain- 
i\ff  had  become  mortgagee  of  the   pre- 
mises in  question  by  a  deed,  dated  the 
7tli  of  May,  1828.     Interest  was  payable 
on   tlie  25th  of  December  every  year ; 
and   had  been   paid  up  to  the  2olh   of 
December,   1830;    the   demise  was  on 
the  1st  of  July,  1830,  and  the  defendant, 
who  had  been  let  into  possession  after 
the   mortgage   by   the   mortgagor,  con- 
tended that  the  action  was  not  maintain- 
able, because  it  was  not  competent  to  a 
mortgagee  to  treat  the  mortgagor,  or  his 
tenants,  as  trespassers,  at  any  time  dur- 
ing which  their  lawful    possession  had 
been   recognised  by  him;  and   that,  by 
receiving  the  interest  of  the   mortgage- 
money,  on  the  25lh  of  December,  1830, 
i)e  had  acknowledged  that  up  to  that 
time  the  defendant  was  in  lawful  pos- 
session of  the  premises ;  but  the  court 
gave  judgment  for  the  plaintiff,  on  the 
ground  that  the  receipt  of  interest  was 
no  recognition  of  the  defendant  as  a  per- 
son in  lawful  possession  of  the  premises. 
However,  in   Doe   dem.  Whittaker  v. 
Hales,  7  Bing.  322,  Austin,  having  mort- 
gaged the  premises  to  the  lessor  of  the 
plaintiff,   let    them    to    the    defendant. 
The  mortgagee  directed  his  attorney  to 
apply  to  Austin   for  the   interest;  and 
the   attorney,    in   April,  1830,   applied 
to  the   defendant  for   rent  to  pay   the 
r*2Qfil  '"^^rest,  ^threatened  to  distrain 
*-        -I  if  it  were  not  paid,  and  received 
it   three   or   four   times.     The  learned 
Judge   at  the   trial,   and    the  court   in 
Bunco  afterwards,  held  that  these  facts 
amounted  to  a  recognition  that  the  de- 
fen(jant  was  lawfully  in  possession  in 
April,  1830,  and   consequently  that  he 
could  not  be  treated   as  having   been  a 
trespasser  on  December  25,    1829,  the 
day  on  which  the  demise  was  laid.  [See 
Doe  d.  Bowman  v.  Lewis,  13  i\I.  &  VV. 
241.     Lord  Tenterden,  delivering  judg- 
ment in  Doe  v.  Cadwallader,  took  some 
pains  to  distinguish  that  case  from  Doe 
dem.    Whittaker    v.   Hales :     "  there," 
says   his   lordship,  "  the   defendant,    in 
order  to  show  that  he  was  not  a  tres- 
passer, on  the  25th  of  December,  1829, 
proved  that  m  April,  1830,  he  was  in 
possession  of  the  premises;  and  that  an 
agent  of  the  lessor  of  the  plaintiff  called 
on  him,  demanded  payment  of  interest 
on  a  mortgage  to  the  lessor  of  the  plain- 
tiff, and  received  money  co  norinne,  as 
interest,  the  defendant  being  required 
to  pay  it  instead  of  rent  to  the  mortga- 


gor." Lord  Chief  Justice  Tindal,  after 
staling  these  facts,  observes,  "this, 
therefore,  was  a  demand  made  by  the 
agent  of  the  mortgagee,  and  with  lull 
knowledge  of  all  the  circumstances  of 
the  parties,  namely,  that  the  defendant 
was  tenant  to  the  mortgagor,  and  not  to 
the  lessor  of  the  plaintiff,  and  if  a  party 
employs  an  agent,  who  has  full  know- 
ledge of  the  circumstances,  it  must  be 
presumed  that  the  principal  has  the 
same  knowledge,  so  that  the  lessor  of 
the  plaintiff,  having  recognised  and 
availed  himself  of  the  possession  of  the 
defendant,  so  late  as  April,  1830,  cannot 
treat  him  as  a  trespasser  in  1829.  This 
case  is  very  distinguishable  from  the 
present:  the  evidence  in  this  case  was 
only  that  the  mortgagee  had  received 
*interest  on  the  money  advan-  r:f:.iqf>  i 
ced  by  him  for  a  period  cover-    •-  -■ 

ing  the  1st  of  July,  1830,  the  day  of  the 
demise  mentioned  in  the  declaration. 
By  so  receiving  the  interest  he  did  not 
recognise  the  defendant  as  a  person  in 
lawful  possession  of  the  premises,  nor 
did  he  avail  himself  of  that  possession  to 
obtain  payment  of  the  interest." 

Upon  the  whole,  the  question  whether 
the  mortgagee  have  recognised  the 
tenant  of  the  mortgagor  as  Lis  tenant 
appears  to  be  a  question  more  of  fact 
than  of  law,  and  probably  would  be  left 
to  the  coMsideration  of thejury,  provided 
there  were  any  evidence  fit  to  be  sub- 
milted  to  them.  And  the  decision  in 
Doe  V.  Cadwallader  seems  to  establish 
that  mere  receipt  of  interest  by  tlie 
mortgagee,  coupled  with  no  other  fact 
what(!ver,  would  not  be  evidence  fit  to 
be  left  to  the  jury,  on  the  question  of 
recognition,  The  ruling  in  Doe  v.  Cad- 
wallader, it  must,  however,  be  observed, 
seems  to  have  been  thought  too  severe 
by  Lord  Denman  in  Evans  v.  Elliot,  9 
A.  &  E.  342,  where  his  lordship  reiiiark- 
ed  that  he  was  by  no  means  prepared  to 
admit  that  a  jury  would  not  be  warrant- 
ed in  inferring  a  recognition  of  the 
tenant's  right  to  hold  from  the  mere  cir- 
cumstance of  the  mortgagee's  knowingly 
permitting  the  mortgagor  to  continue 
the  apparent  owner  of  the  premises  as 
before  the  mortgage,  and  to  lease  them 
out  exactly  as  if  his  property  in  them 
continued.  It  seems,  however,  from  a 
prior  part  of  his  lordship's  judgment, 
that  the  three  other  judges  were  dis- 
posed to  adhere  to  the  opinion  expressed 
in  Doe  v.  Cadwallader.  When  once  it 
has  been  proved  that  the  mortgagee  has 


K  E  E  C  n     V.     HALL. 


567 


recon^nised  the  tenant  of  tlie  mortg'agor 
as  his  tenant,  he  cannot  treat  liim  as  a 
tort  feasor,  nor,  if  he  elect  to  treat  hitn 
as  a  tort  feasor,  can  he  maintain  any 
demand  against  him  in  which  he  is 
charged  as  a  tenant,  for  Birch  v.  Wright, 
1  T/R.  378,  clearly  establishes  that  a 
man  cannot  be  treated  at  once  both  as  a 
tenant  and  a  trespasser. 

It  often  happeno  that  there  is  an  ex- 
press covenant  in  a  mortgage  deed,  that 
the  mortgagor  shall  remain  in  possession 
of  the  premises  until  default  in  payment 
of  the  mnrtgage-inoney  at  a  certain 
period.  Up  to  that  period  he  seems  to 
hold  an  interest  in  the  nature  of  a  term 
of  years;  and,  of  course,  during  that 
period  he  has  a  right  to  the  possession, 
and  could  not  be  legally  ejected.  Wil- 
kinson V.  Hall,  3  Bmg.  N.  C.  533,  the 
stipulation  that  he  shall  remain  in  pos- 
session operating  as  a  redemise.  When 
that  fixed  period  has  expired,  he  be- 
comes, if  the  money  have  not  been  paid, 
tenant  at  sufferance  to  the  mortgagee. 
"  We  must  look,"  said  Best,  C.  J.,  deli- 
vering judgment  in  such  a  case,  "at 
the  covenant  he  has  made  with  the  mort- 
gagee, to  ascertain  what  his  real  situa- 
tion is.  We  find,  from  the  deed  between 
r*2QrAl  *^^^  parties,  that  possession  of 
L  '  -I  his  estate  is  secured  to  him 
until  a  certain  day,  and  that,  if  he  does 
not  redeem  his  pledge  by  that  day,  the 
mortgagee  has  a  right  to  enter  and  take 
possession.  From  that  day  the  posses- 
sion belongs  to  the  mortgagee;  and 
there  is  no  more  occasion  for  his  requir- 
ing that  the  estate  should  be  delivered 
up  to  him  before  he  brings  an  ejectment, 
than  for  a  lessor  to  demand  possession 
on  the  determination  of  a  term.  The 
situation  of  a  lessee  on  the  expiration  of 
a  term,  and  a  mortgagor  who  has  cove- 
nanted that  the  mortgagee  may  enter 
on  a  certain  day,  is  precisely  the  same." 
5  Ring.  4-27. 

[And,  attending  to  the  distinction  be- 
tween an  agreement  to  be  collected 
from  the  mortgage  deed  that  the  mort- 
gagor shall  remain  in  possession  fora//?/;e 
certain,  which  o|)erales  as  a  redemise, 
and  an  agreement  that  the  mortgagee 
may  enter  upon,  or  the  mortgagor  hold 
iiniil,  a  default,  the  time  of  which  is  un- 
certain, and  which  agreement  cannot 
operate  as  a  redemise  for  want  of  cer- 
tainly (Com.  Dig.  Estate,  G,  12),  the 
view  taken  in  Wilkinson  v.  IJall,  seems 
not  to  be  at  variance  with  the  more  re- 
cent decisions   in   Doe    d.    Koylnnce  v. 


Lightfoot,  8  M.  &,  W.  564,  and  Doe  d. 
iVrsley  v.  Day,  2  Q.  B.  147,  though  ex- 
tended too  widely  in  Doe  d.  Lyster  v. 
Goldwin,  2  Q,.  B.  143.  As  for  Wheeler 
V.  Montefiore,  2  Q  B.  133,  explained  by 
the  court  in  Doe  d.  Parsley  v.  Day,  2 
Q.  B.  155,  it  has  no  bearing-  upon  the 
question  ;  because  the  mortgage,  in  that 
case,  was  for  a  term  of  years,  the  mort- 
gagee had  never  entered,  and  the  action 
was  of  trespass;  which  form  of  action 
cannot  be  maintained  by  a  lessee  for 
years  before  entry,  although  he  may 
bring  an  ejectment  because  in  that  pro- 
ceeding the  entry  of  the  feigned  lessee 
is  admitted  by  the  consent  rule.  In  Doe 
d.  Lyster  v.  Goldwin,  2  Q.  B.  143,  a 
conveyance  was  made  of  the  legal  estate, 
by  Lyster  and  his  wife,  (in  whose  right 
he  enjoyed  the  property,)  in  order  "  to 
secure  an  annuity  upon  which  money 
had  been  advanced  by  the  Globe  Insur- 
ance OtEce,"  and  it  was  in  trust,  amongst 
other  things,  to  permit  and  suffer  Mrs. 
Lyster  to  receive  the  rents  until  default 
made  for  sixty  days  in  payment  of  the 
annuity;  and,  no  default  appearing,  it 
was  held  that  the  legal  estate  remained 
by  way  of  redemise  in  Lyster.  But,  to  cite 
the  observation  of  the  court  in  a  subse- 
quent judgment,  (Doe  d.  Parsley  V.  Day, 
2  Q.  B.  155,)  "it  may  be  questionable 
whether  sufficient  attention  was  paid  in 
that  case  to  the  point  as  to  the  certainly 
of  the  time:  at  all  events,  it  was  not  de- 
cided upon  any  ground  that  such  cer- 
tainty was  immaterial."  And  it  may  be 
further  observed,  upon  Doe  d.  Lyster  v. 
Goldwin,  that  the  nature  of  the  transac- 
tion does  not  appear  very  distinctly,  and 
the  conveyance  seems  not  unlikely  to 
have  been  simply  a  demise  or  r  ^.3)q£; . 
^assignment  of  a  term  tosecure  '-  ""  -' 
the  annuity,  and  so  to  have  admitted  of 
considerations  different  from  those  which 
govern  the  case  of  an  ordinary  mort- 
gage. (See  Jacob  v.  Milford,  1  J.  & 
W.  629;  Doe  d.  Butler  v.  Lord  Ken- 
sington, 8  Q,  B.  429.)  In  Doe  d.  Roy- 
lance  V.  Lightfoot,  8  M.  &  W.  553,  the 
proviso  was,  that  if  the  mortgagor  should 
well  and  truly  pay  the  principal  money 
and  interest  on  the  25lh  of  March  then 
next,  the  mortgagee  should  reconvey, 
and  there  were  covenants  that  after 
default  the  mortgagee  might  enter,  and 
also  after  default  for  further  assurance. 
The  Court  of  Exchequer,  referring  to 
the  passage  in  yiiejipard's  Touchstone 
presently  to  be  slated  in  full,  and  observ- 
inir  that  it  was  not  hrouoht  to  the  alten- 


568 


SMITHS     LEADING    CASES. 


tion  of  ihe  court  in  Wilkinson  v.  Hall, 
held  that  tlie  estate  was  in  t!ic  mortga- 
gee  from  the  time  of  the  execution  of 
the  innrlgage,  and  that  the  statute  of 
limitations  began  to  run  at  that  time. 
In  Doc  d.  Parsley  v.  Day,  2  Q.  B.  147, 
freehokb  and  leaseholds  were  conveyed 
in  mortgage  with  a  proviso  that  upon 
payment  of  550^.  and  interest  on  the  5lh 
of  October  then  next  the  conveyance 
should  be  void,  but  in  case  of  non-pay- 
ment it  was  to  be  lawful  for  the  mort- 
gagee, after  a  month's  notice  in  writing 
demanding  payment,  to  enter  into  posses- 
sion, and  to  make  leases  and  sell,  and 
there  was  a  covenant  by  the  mortgagee 
not  to  sell  or  lease  until  after  such  no- 
tice. The  Court  of  Queen's  Bench  fol- 
lowing the  authority  of  the  passage  in 
the  Touchstone,  referred  to  by  Parke, 
B.,  in  Doe  d.  Roylance  v.  Lightfoot,  and 
acceding  to  the  doctrine  of  that  case, 
came  to  the  conclusion  that,  inasmuch 
as  after  the  day  of  payment,  the  time,  if 
any,  during  which  the  mortgagor  was  to 
hold  was  not  determinate,  but  altogether 
uncertain;  neither  was  there  any  affir- 
mative covenant  whatever  that  he  should 
hold  at  all ;  "  the  covenant,  therefore, 
that  the  mortgagee  shall  not  sell  or  lease, 
or  even  if  it  be  construed  should  not 
enter,  until  a  month's  notice,  was  a  co- 
venant only  and  no  lease."  The  passage 
in  Shep.  Touch.,  (8th  ed.)  272,  referred 
to  in  Doe  d.  Roylance  v.  Lightfoot,  was 
cited  at  length,  and  commented  upon  in 
the  judgment  in  Doe  d.  Parsley  v.  Day, 
as  follows: — "If  A.  do  but  gratit  and 
covenant  with  B.,  that  B.  shall  enjoy 
such  a  piece  of  land  for  twenty  years; 
this  is  a  good  lease  for  twenty  years. 
>So,  if  A.  promise  to  B.  to  suffer  him  to  en- 
J!)y  such  a  piece  of  land  for  twenty  years ; 
this  is  a  good  lease  for  twenty  years. 
»So  if  A.  license  B.  to  enjoy  such  a  piece 
of  land  for  twenty  years;  this  is  a  good 
lease  for  twenty  years.  And  therefore 
.it  is  the  common  course,  if  a  man  make 
a  feoff*:nent  in  fee,  or  other  estate  upon 
condition,  that  if  such  a  thing  be  or  be 
not  done  at  such  a  time,  that  the  feoffor, 
&c.,  shall  re-enter,  to  the  end,  that  in 
this  case  the  feoffor,  &c.,  may  have  the 
r^..jnC  ji  *liind,  and  continue  in  posses- 
L  J    siou  until  that  time,  to  make  a 

covenant  that  he  shall  hold,  and  take 
the  profits  of  the  land  until  that  time; 
and  this  covenant  in  this  case  will  make 
a  good  lease  for  that  time,  if  the  uncer- 
tainty of  the  time  v/hereunto  care  must 
be  had  do  not  make  it  void.     (Mr.  Pres- 


ton adds,  "The  limitation  of  a  certain 
term,  with  a  collateral  determination  on 
the  event,  would  meet  the  difficulties  of 
the  case.")  And  therefore,  if  A.  bargain 
and  sell  his  land  to  B.  on  condition  tore- 
enter  if  he  pay  him  lOOZ.,  and  B.  doth 
covenant  with  A.  that  he  will  not  take 
the  profits  until  default  of  ])ayment ;  or 
that  A.  shall  take  the  profits  until  default 
of  payment;  in  this  case,  howbeit  this 
may  be  a  good  covenant,  yet  it  is  no 
good  lease  ("for  want,"  .says  Mr.  Pres- 
ton, "of  a  more  formal  contract,  and 
also  for  want  of  certainty  of  lime.") 
And  if  the  mortgagee  covenant  with  the 
mortgagor,  that  he  will  not  take  the 
profits  of  the  land  until  the  day  of  pay- 
ment of  the  money;  in  this  case,  albeit 
the  time  be  certain,  yet  this  is  no  good 
lease,  but  a  covenant  only,  ("since," 
says  IMr.  Preston,  "the  words  are  nega- 
tive only,  and  not  affirmative.")  Precise- 
ly the  same  law  is  laid  down  in  Powseley 
V.  Blackman,  Cro.  Jac.  659;  Evans  v. 
Thomas,  Cro.  Jac.  172;  Jemmot  v. 
Cooly,  1  Lev.  170,  S.  C. ;  1  Saund.  112, 
b.,  1  Sid.  223, 262, 344,  Sir  T.  Raymond, 
13o,  1.5S;  Keb.  784,  915;  2  Keh  20, 
181,  270,  295."  It  may  perhaps  be  con- 
cluded, on  this  review  of  the  authorities, 
that  in  order  to  make  a  redemise,  there 
must  be  an  affirmative  covenant,  that 
the  mortgagor  shall  hold  for  a  determi- 
nate time;  and  that  where  either  of 
those  elements  is  wanting,  there  is  no 
redemise. 

A  mortgage  deed  sometimes  contains 
an  agieement  that  the  mortgagor  shall 
be  tenant  to  the  mortgagee  at  a  rent; 
or,  a  power  enabling  the  mortgagee  to 
distrain  for  interest  by  which  no  tenancy 
is  created.  The  object  of  such  provi- 
sions is  generally  to  further  secure  tlie 
payment  of  the  interest,  an  object  more 
completely  effected  by  adopting  the  for- 
mer, than  the  latter  mode  of  framing  the 
deed;  because,  whilst  the  former  pro- 
duces a  rent,  properly  so  called,  with  all 
its  incident  remedies,  the  latter  operates 
merely  by  way  of  personal  license  from 
the  mortgagor,  and  aflfects  his  interest 
only.  The  efl^ect  of  either  upon  the  sub- 
ject of  this  note,  viz.,  the  right  of  the 
mortgagee  to  bring  ejectment,  must,  in 
each  case,  depend  upon  tiie  terms  in 
which  it  is  framed.  In  Doe  d  Garrod 
V.  01  ley,  12  Ad.  &  Ell.  4^1,  it  was 
agreed,  that  the  mortgagor,  during  his 
occupation  of  the  premises,  should  pay 
the  mortgagee  a  rent  of  50?.  a-yoar,  with 
such  power  of  distress  as  landlords  have 


KEECn    V.    HALL. 


569 


on  common  demises,  provided,  that  the 
reservation  of  rent  should  not  prejudice 
the  mortgagee's  right  to  enter  after  de- 
r*2Qfi  1  ^^"'*^  *^"  payment  of  tiie  mo- 
•-  -•    neys     secured     or    any    part 

thereof.  The  mortgagee,  after  the  prin- 
cipal had  fillen  due,  distrained  for  half 
a  year's  rent,  and  upon  a  subsequent 
default  in  payment  of  rent,  the  prin- 
cipal still  remaining  due,  he,  without^ 
any  notice  to  quit,  brought  an  ejectment, 
and  succeeded.  Palteson,  J.,  in  that 
case,  expressed  his  opinion  that  it  could 
not  be  meant  that  the  50^.  should  be  a 
rent-charge,  because  the  mortgagor  had 
no  estate  in  him,  and  that  it  seemed 
"  as  if  the  relation  of  landlord  and  tenant 
wascontemplated,  but  with  liberty  for  the 
landlord  to  treat  the  tenant  asa  trespasser 
at  any  time  after  any  default."  That  deci- 
sion was  confirmed  and  acted  on  in  Doe 
d.  Snell  V.  Tom,  4  Q.  B.  615.  In  Doe 
d.  Bastov.  Cox,  Q.  B.  1.5  Nov.  1317, 
17  L.  J.  3,  the  mortgagor  agreed  to  be- 
come tenant  "henceforth  at  the  will 
and  pleasure  of  the  mortgagee,  at  the 
yearly  rent  of  2M.  4s.  payable  quarter- 
ly," which  agreement  was  held  to  create 
a  tenancy  at  will,  not  converted  into  a 
tenancy  from  year  to  year  by  occupation 
for  two  years  and  payment  of  rent.  In 
the  last  named  three  cases,  the  relation 
of  landlord  and  tenant  appears  to  have 
at  first  existed ;  but  there  have  been  others 
of  a  like  character,  in  which  a  mere  per- 
sonal license  to  distrain,  or  a  rent-charge 
(atlerwards  merged  by  the  acquisition 
of  the  legal  estate),  was  given  to  the 
mortofagee.  Thus  in  Doe  d.  Wilkinson 
V.  Goodier,  Q.  B.,  7th  July,  1847,  16  L. 
J.  4:35,  there  was  a  power  in  the  mort- 
gagee to  distrain  for  interest  if  in  arrear 
twenty-one  days,  "in  like  manner  as 
for  rent  reserved  on  a  lease;"  and  though 
the  mortgagee  had  entered  and  dis- 
trained after  the  day  of  the  demise  in 
ejectment,  but  for  interest  due  before 
that  day,  he  was  considered  not  to  have 
recognised  the  mortgagor  as  his  tenant, 
and  to  be  entitled  to  maintain  eject- 
ment. In  Freeman  v.  Edwards,  Exch. 
21  June,  1848,  17  L.  J.  258,  the  mort- 
gage, which  was  of  copyhold,  contained 
a  similar  power  to  distrain  for  interest; 
the  mortgagee  was  admitted  to  tiie 
copyholds;  the  mortgagor  became  bank- 
rupt, and  whilst  he  still  remained  in 
possession,  the  mortgagee  distrained  for 
interest  in  arrear;  for  which  act  the 
assignees  of  the  mortgagor  sued  in  tres- 
pass.    The  mortgagee  pleaded  a  justifi- 


cnticn  under  tlic  drcd,  wliich  plea  was 
held  bad  after  verdict.  The  arguments 
advanced  on  either  side,  and  the  view 
taken  by  the  court  of  the  operation  of 
such  a  power,  appear  fully  in  liie  follow- 
ing passage  from  the  judgment  of  Parke, 
B. ;  "The  utmost  that  can  be  given  to 
this  deed,  is  to  consider  it  as  operating 
as  a  covenant  that  the  mortgagee  may 
seize  such  goods  of  the  mortgagor  as 
shall  be  on  the  premises  at  the  time  the 
distress  is  made,  and  treat  them  as  if 
distrained  ;  such  a  covenant  would  not 
afl'ect  any  specific  goods  before  .seizure, 
and  therefore  the  goods  came  to  the 
assignees  not  subject  *to  any  r*2gQfl 
equity.  Probably,  the  argu-  L  J  i 
ment  that  the  grant  operated  so  as  to 
create  a  rentrcharge,  is  correct;  and  if 
so,  the  rent-charge  continued  until  the 
surrender  and  admittance.  But  it  is  not 
necessary  to  decide  that,  for  as  soon  as 
the  grantee  of  the  rent-charge,  if  it  was 
one,  became  entitled  to  the  fee-simple 
in  possession,  the  rent-charge  was  gone, 
and  the  covenant  ceased  to  exist  as  an 
obligation  binding  the  land.  It  might, 
hovv'ever,  still  exist  as  a  personal  cove- 
nant, binding  the  covenantor,  though  it 
would  not  affect  third  persons.  The  ar- 
gument of  the  plaintiff's  counsel,  that 
the  effect  of  the  deed  was  exhausted  by 
the  creation  of  the  rent  may  make  this 
doubtful ;  and  it  is  not  necessary  to  de- 
cide it,  for,  giving  the  covenant  this 
effect,  it  will  not  make  this  a  good  plea. 
The  covenant  at  most  is  to  be  construed 
as  an  agreement  that  all  goods  belong- 
ing to  Leedham  (the  mortgagor)  at  the 
time  of  the  distress,  and  then  upon  the 
land,  might  be  seized.  This  would  affect 
his  own  goods  when  seized.  Up  to  the 
seizure  the  whole  is  contingent,  and 
gives  no  lien  on  specific  goods.  Before 
the  distress  was  made,  Leedham  be- 
came bankrupt;  at  that  time  the  whole 
of  the  goods  which  were  his  property, 
and  then  upon  the  land,  were  contin- 
gently liable  to  be  seized,  but  no  specific 
portion  was  liable  more  than  the  rest. 
There  was,  therefore,  no  lien  on  any 
portion  of  the  goods,  according  to  the 
principle  of  the  decision  in  Carvalho  v. 
Burn,  4  B.  &  Ad.  382,  (1  Ad.  &  E.  883.) 
Then  at  the  moment  of  the  distress  the 
goods  had  ceased  to  belong  to  Leedham, 
and  became  the  property  of  the  as- 
signees, and,  as  goods  not  belonging  to 
the  covenantor,  were  not  subject  to  the 
covenant."  See  also  Chapman  v.  Bee- 
cham,  3  Q  B.  373]. 


570 


SMITU    S      LEADING     CASES, 


With  rc?pect  to  the  nature  of  the 
mortgagor's  possession  after  tlie  mort- 
gage, where  there  is  no  stipulation  tiiat 
he  should  be  allowed  to  remain  in  posses- 

r  *2Q7  1  ^^^^  *^*''"  ^"^  certain  time,  there 
'-  J   seems    to    be   more  difficultj-. 

Messrs.  Coote  and  Morley,  in  an  elabo- 
rate note  to  VVatkins  on  Conveyancing, 
deliver  it  as  their  opinion,  that  "  if  there 
be  no  express  agreement  originally  as  to 
the  period  of  possession,  and  the  mortga- 
gor, being  the  occupant,  remain  in  pos- 
session with  the  consent  of  the  mortga- 
gee, it  seems  that,  in  such  a  case,  he 
ought  to  be  considered  strictly  as  tenant 
at  will."  This  is  true,  if  it  be  admitted 
that  he  has  remained  in  possession  with 
the  consent  of  the  mortgagee.  But  the 
more  difficult  question  seems  to  be  under 
what  circumstances  shall  the  mortga- 
gee's consent  be  taken  to  exist,  and  shall 
it  be  intplied  merely  from  the  fact  of  his 
abstaining  from  ousting  the  mortgagor 
immediately  after  the  execution  of  the 
mortgage?  Certainly  neither  the  case  of 
Thunder  dem.  Weaver  v.  Belcher,  3 
East,  450;  nor  that  of  Smartle  v.  Wil- 
liams, 1  Salk.  246;  3  Lev.  387,  which 
are  cited  by  Messrs.  Coote  and  Morley, 
have  any  tendency  in  favour  of  such  an 
implication ;  for,  in  the  former,  eject- 
ment was  brought  against  a  tenant  let 
into  possession  by  the  mortgagor  after 
the  mortgage  ;  and,  as  there  had  been  no 
recognition  of  him  by  the  mortgagee, 
there  was  judgment  against  him  ;  and  so 
far  was  the  court  from  considering  that 
the  mortgagor  would,  under  the  circum- 
stances above  supposed,  have  been  tenant 
at  will,  had  he  remained  himself  in  pos- 
session instead  of  letting,  that  Lord  El- 
lenborough  says,  "  A  mortgagor  is  no 
more  than  a  tenant  at  sufferance,  not 
entitled  to  any  notice  to  quit:  and  one 
tenant  at  sufferance  cannot  make  ano- 
ther." In  Smartle  v.  Williams  the  mort- 
gagor certainly  remained  in  possession, 
and  that  with  the  express  consent  of  \.\ie 
mortgagee,  for  Holt,  C.  J.,  says  :  "  Upon 
executing  the  deed  of  mortgage,  the 
mortgagor,  by  the  covenant  to  enjoy  till 
default  of  payment,  is  tenant  at  will." 
But  in  that  case,  the  mortgagee  liad  as- 
signed the  mortgage;  and  the  question 
was,  whether,  by  doing  so,  he  had  deter- 
mined his  will,  and  whether  the  mort- 
gagor's subsequent  continuance  in  pos- 
session divested  the  estate  of  the  assignee, 
and  turned  it  to  a  right,  so  as  to  prevent 
a  person  to  whom  the  assignee  afterwards 
assigned,  and  who  brought  the  ejectment, 


from  taking  any  legal  interest;  u|)on 
which  point  the  court  held  that  it  had  no 
such  effect,  since  the  mortgagor  was,  at 
all  events,  tenant  a<  SJ/j^erance  after  the 
assignment.  And  it  is  not  believed  that 
there  exists  any  decision  in  which  a 
mortgagor  remaining  in  possession,  after 
an  absolute  conveyance  away  of  his  es- 
tate, by  way  of  mortgage,  without  any 
consent  on  the  part  of  the  mortgagee, 
express  or  to  be  implied  otherwise  than 
from  his  silence,  has  been  considered  in 
any  other  light  than  as  tenant  at  suffer- 
ance, to  the  definition  of  whom  he  seems 
strictly  to  answer,  being  a  person  who 
comes  in  by  right,  and  holds  over  wilh- 
ont  right :  see  Co.  Litt.  57,  and  Lord 
Hale's  MSS.,  note  5,  where  the  follow- 
ing case  is  put,  which  seems  analogous: 
— "If  tenant  for  years  surrenders,  and 
still  continues  possession,  he  is  tenant  at 
sufferance  or  disseisor  at  election." 

This  subject  has  been  treated  at  .some 
length,  because  the  reader  will  find  it 
often  said  that  a  mortgagor  in  possession 
is  tenant  at  ivill  quodajnmodo  ;  an  idea 
which  Lord  Mansfield  especially  seems 
to  have  countenanced,  for  in  the  princi- 
pal case  he  says,  "  when  the  mortgagor 
is  left  in  possession,  the  true  inference  to 
be  drawn  is  an  agreement  that  he  shall 
possess  the  premises  at  will,  in  the 
strictest  sense:  and,  therefore,  no  notice 
is  ever  given  him  to  quit,  and  he  is  not 
even  entitled  to  reap  the  crop,  as  other 
tenants  at  will  are,  because  all  is  liable 
to  the  debt:"  and  in  Moss  v.  Gallimore, 
which  will  be  printed  in  this  collection, 
he  calls  the  mortgagor  "tenant  at  will 
quodammodo."  Whereas  Lord  Ellen- 
borough  in  Thunder  v.  Belcher,  denomi- 
nated him  "tenant  at  sufferance  ;''  and 
it  is  submitted  that  it  would  be  more  con- 
venient to  range  his  possession  under 
some  one  of  the  ancient  and  well-known 
descriptions  of  tenancy,  than  to  invent 
the  new  and  anomalous  class  of  tenants 
at  will  quodammodo,  for  the  only  pur- 
pose of  including  it.     See  Litt.  sec.  3S1. 

Upon  the  whole  it  is  concluded,  1st. 
That,  if  there  be  in  the  mortgage-deed  an 
agreement  that  the  mortgagor  shall  con- 
tinue in  possession  till  default  of  pay- 
ment on  a  certain  day,  he  is  in  the  mean 
while  termor  of  the  intervening  term. 
2ndly.  That,  if  default  be  *made  r^^oai 
on  that  day,  he  becomes  tenant  at  ^  ^ 
sufferance.  3rdly.  That,  when  there  is 
no  such  agreement,  he  is  tenant  at  suf- 
ferance immediately  upon  the  execution 
of  the  mortgage,  unless  the  mortgagee 


KEECH     V.     HALL.  571 

expressly  or  impliedly  consented  to  his  the  mort(jag-ee  recop^nise  their  posses- 
remaining-  in  possession.  4thly,  Tiiat  sion,  they  become  his  tenants.  Lastly, 
such  consent  renders  him  tenant  at  will,  that  the  mere  receipt  ofinterest  from  the 
5thly.  Tiiat  if  in  any  of  the  last  three  mortgagor  does  not  amonnt  to  such  a  rr- 
cases  he  let  in  tenants,  they  may  be  cognition.  These  two  last  propositions 
treated  by  the  mortgagee,  if  he  tliink  must,  however,  now  be  taken  subject  to 
proper,  as  tort  feasors.     6lhly.  That,  if  the  doubts  expressed  in  Evans  v.  Elliot. 


Notwithstanding  some  earlier  decisions,  which  look  the  other  way,  it  is 
now  well  settled  throughout  this  country,  that  the  mortgagor  is  invested 
with  the  incidents  both  of  legal  and  equitable  ownership,  as  it  regards  all 
persons  save  the  mortgagee  and  those  claiming  under  him  ;  Wilkins  v.  French, 
2  Appleton,  211 ;  Ellison  v.  Daniels,  11  New  Hampshire,  274;  Southeriu 
T.  Mcndum,  5  id.  420 ;  Wellington  v.  Gale,  7  Mass.  138 ;  Goodwin  v. 
Richardson,  11  id.  4C9 ;  Eaton  v.  Whilden,  3  Pick.  484;  Hooper  v.  Wil- 
son, 12  Vermont,  695;  Smith  v.  Taylor,  9  Alabama,  133.  Thus,  the  wife  of 
the  mortgagor  is  entitled  to  dower;  Hitchcock  v.  Harrington,  6  Johnson, 
295;  Coles  v.  Coles,  15  id.  319;  Bolton  v.  Ballard,  13  Mass.  2227;  Snow 
V.  Stevens,  13  id.  279;  Cass  v.  Martin,  6  New  Hampshire,  25;  Bullard  v. 
Bowers,  10  id.  500  ;  and  the  mortgagor  himself  to  a  settlement  in  the  town- 
ship where  the  land  is  situated;  Groton  v.  Roxborough,  6  Mass.  53.  The 
outstanding  legal  title  of  the  mortgagee,  cannot  be  set  up  by  a  third  person, 
as  a  bar  to  an  ejectment  or  writ  of  entry,  brought  by  the  mortgagor ;  Doe 
V.  McLoskey,  2  Alabama,  708 ;  Smith  v.  Taylor,  9  id.  63 ;  Blaney  v. 
Bearce,  2  Greenleaf,  132 ;  Ellison  v.  Daniels,  11  New  Hampshire,  274 ; 
W^illington  v.  Gale,  7  Pick.  159.  And  where  land  is  conveyed  after  the 
execution  of  a  mortgage,  all  covenants  capable  of  running  with  land 
will  pass  to  a  subsequent  assignee  from  the  grantee,  in  the  same  manner  as 
if  the  grant  were  of  a  legal  estate,  and  not  of  a  mere  equity  of  redemption  ; 
White  V.  Whitney,  3  Metcalf,  83.  The  interest  of  the  mortgagor  can  be 
seised  and  sold  under  any  of  the  forms  of  process  in  use  in  this  country,  for 
the  levy  and  sale  of  laud,  while  that  of  the  mortgagee  is  held  to  be  liable  to 
an  attachment,  but  not  to  a  direct  execution  ;  Dougherty  v.  Linthicum,  8 
Dana,  194;  Davis  v.  Anderson,  1  Kelly,  176;  Blanchard  v.  Colman,  16  Mass. 
345;  Snow  v.  Stevens,  15  id.  279;  Glass  v.  Ellison,  9  id.  69 ;  Watkins  v. 
Gregory,  6  Blackford,  113 ;  Jackson  v.  Willard,  4  Johnson,  41 ;  The 
Farmers'  Bank  v.  The  Commercial  Bank,  10  Ohio,  71;  although  in  some 
of  the  states  this  rests  on  the  ground  of  an  equitable  or  statutory  jurisdiction, 
so  far  as  it  regards  the  estate  of  the  mortgagor;  Van  Ness  v.  Hyatt,  13 
Peters,  194;  Mordecai  v.  Parker,  3  Devereux,  425;  Thornhill  v.  Gilmore, 
4  Smedes  &  Marshall,  153  ;  Mclsaacs  v.  Hobbs,  8  Dana,  208. 

But  while  such  is  universally  the  law  as  between  the  mortgagor  and  third 
persons,  a  different  rule  prevails  in  many  parts  of  this  country,  with  regard 
to  the  mortgagee,  who  is  held  to  have  all  the  rights  of  ordinary  grantees  in 
fee,  subject  to  a  condition  which  has  not  been  performed.  It  has  accord- 
ingly been  decided,  that  the  mortgagee  may  enter  on  the  mortgagor,  or  bring 
an  action  against  him  for  the  recovery  of  the  laud,  as  soon  as  the  mortgage 


572  smith's   leading   cases. 

is  executed,  without  waiting  until  tbc  expiration  of  the  period  fixed  for  the 
perforuiauce  of  the  condition;  Blancy  v.  IJearce,  2  Grcenleaf,  132;  Smith  v. 
Goodwin,  id.  173;  Brown  v.  Cramer,  1  New  Hampshire,  1G9 ;  Pottingill  v. 
Evans,  id.  54.  And  as  this  right  is  regarded  as  a  necessary  incident  to  the  es- 
tate conveyed  by  the  mortgage,  it  cannot  be  restrained  by  a  parol  agreement, 
that  the  mortgagor  shall  be  allowed  to  remain  in  possession  until  forfeiture, 
because  such  an  agreement  is  inconsistent,  both  with  the  terms  of  the  deed 
and  the  provisions  of  the  statute  of  frauds;  Colman  v.  Packard,  16  Mass. 
89.  Nor  can  the  right  of  the  mortgagor  to  possession,  be  defeated  by  the 
tender,  or  even  by  the  payment  of  the  debt  after  the  time  fixed  for  its  pay- 
ment, for  the  condition  not  having  been  performed  at  the  day,  is  gone  at  law, 
and  the  only  redress  of  the  mortgagor  is  in  equity;  Parson  v.  Willes,  17  Mass. 
419;  Dotonv.  Russel,  17  Conn.  146;  Maynard  v.  Hunt,  5  Pick.  233; 
Howe  V.  Lewis,  14  id.  39.  And  as  the  freehold  vests  in  the  mortgagee  on 
the  execution  of  the  mortgage,  he  is  entitled  to  enter  at  once  on  the  land, 
and  may  maintain  trespass  against  the  mortgagor  or  his  tenants,  immediately 
afterwards;  The  Northampton  Paper  Mills  v.  Ames,  8  Metcalf,  1.  But  he 
cannot  maintain  trespass  quare  clausum  fregit,  or  for  mesne  profits  against  the 
mortgagor  or  third  persons,  before  actual  entry,  unless  the  mortgage  is  by 
feoffment,  and  not  merely  under  the  statute  of  uses,  because  he  has  neither 
an  actual  nor  constructive  possession  of  the  land,  until  entry ;  Mayo  v. 
Fletcher,  14  Pick.  525;  Hatch  v.  Dwight,  17  Mass.  289;  Com.  Dig.  Tres- 
pass, B.  3 ;  Estes  v.  Cook,  22  Pick.  295  ;  French  v.  Fuller,  23  id.  304  ; 
Emerson  v.  Thompson,  2  id.  473;  Polk  v.  Henderson,  9  Yerger,  310.  But 
he  may  recover  in  trespass  de  bonis  asportatis  or  trover,  for  trees,  minerals,  or 
other  things  severed  and  removed  from  the  mortgaged  premises  without  his 
assent;  Smith  v.  Goodwin,  2  Greenleaf,  173;  Stowell  v.  Pike,  ib.  385 
Gore  V.  Jenness,  19  Maine,  53 ;  Frothingham  v.  McKusick,  24  id.  403 
Smith  V.  Moore,  11  New  Hampshire,  53;  Saunders  v.  Reid,  12  id.  458 
for  upon  such  severance  they  become  mere  chattels  personal,  and  the  general 
right  of  property  passed  by  the  mortgage,  will  be  clothed  by  the  law  with  a 
'constructive  possession,  sufiicient  for  the  support  either  of  trespass  or  trover; 
Higgon  V.  Mortimer,  6  Carr.  &  P.  116;  Farrant  v.  Thompson,  2  D.  &  R.  3. 
And  as  the  interest  of  the  mort^aoree  is  regarded  under  this  course  of 
decision  as  an  estate,  though  restricted  to  the  purposes  of  a  security,  it  may 
be  conveyed  by  the  mortgagee  to  third  persons,  by  any  of  the  assurances 
appropriate  to  the  conveyance  of  land.  Given  v.  Doe,  7  Blackford,  210  ; 
Gould  V.  Newman,  0  Mass.  239 ;  Hunt  v.  Hunt,  14  Pick,  374,  and  on  the 
other  hand,  a  parol  assignment  of  the  debt  will  not  carry  with  it  any  right  in 
the  land,  nor  entitle  the  assignee  to  enforce  the  mortgage  at  law,  whatever 
may  be  the  effect  in  equity.  Parsons  v.  Welles,  17  Mass.  418  ;  Warden  v. 
Adams,  15  Id.  233 ;  Vase  v.  Handy,  2  Greenleaf,  322 ;  Dockray  v.  Noble, 
8  Id.  278;  Preseott  v.  EUingwood,  23  Maine,  345;  Smith  v.  Kelly,  27  Id. 
237  ;  Doe  v.  Demon,  5  Halstead,  156.  A  mortgage  is  considered  as  a  con- 
ditional conveyance  of  an  estate  in  land ;  Aiken  v.  Skilburn,  27  Maine, 
252  ;  and  the  registry  of  a  subsequent  assignment  by  the  mortgagee,  as 
within  the  recording  acts  and  notice  of  the  assignment  to  creditors  and  pur- 
chasers. Clark  V.  Jenkins,  5  Pick.  280;  Pierce  v.  Odlin,  27  Maine,  341. 
In  many  of  the  states,  however,  a  different  view  is  taken,  and  the  mort- 


K  E  E  C  II     V.     HAL  L.  573 

gagor  is  treated  as  the  owner,  notonlj'  as  against  third  persons,  but  as  against 
the  mortgagee.  Evertson  v.  Sutton,  5  Wend.  295.  The  interest  of  the 
mortgagee  is  held  to  be  a  mere  incident  to  the  debt,  and  limited  to  the  object 
of  securing  its  payment.  It  has  consequently  been  decided  on  the  one  hand, 
that  a  mortgage  is  not  an  interest  in  land  within  the  terms  of  the  statute  of 
frauds,  and  will  pass  by  a  parol  assignment  of  the  debt  for  which  it  is  given; 
Green  v.  Hart,  1  Johnson,  580 ;  Clearwater  v.  Rose,  1  Blackford,  137  ;  and 
on  the  other,  that  the  assignment  of  a  mortgage  is  invalid,  unless  it  is 
accompanied  by  an  actual  or  constructive  assignment  of  the  debt.  Bell  v. 
Morse,  G  New  Hampshire,  205.  And  a  conveyance  by  the  mortgagee,  intended 
to  pass  his  interest  as  an  estate  and  not  as  a  security,  has  been  held  to  be 
wholly  inoperative,  Wilson  v.  Troup,  2  Cowen,  145;  Jackson  v.  Myers, 
11  Wend.  533;  and  not  to  entitle  thegranter  to  maintain  ejectment  against 
the  mortgagor;  Jackson  v.  Bronson,  19  Johnson,  325.  The  court  held 
that  <'  the  mortgage  was  a  mere  incident  to  the  bond  or  personal  security 
given  for  the  debt,  and  that  the  assignment  of  the  interest  of  the  mortgagee 
in  the  land,  without  an  assignment  of  the  debt  was  a  nullity  at  law,  as  well 
as  in  equity."  And  in  this  case,  and  in  Coles  v.  Coles,  15  Johnson,  320,  it 
was  said  that  the  mortgagee  has  a  mere  chattel  interest,  and  that  the  mort- 
gagor is  the  tenant  of  the  freehold.  Thus,  where  the  mortgagor  brought 
trespass  for  an  entry  on  the  land  and  cutting  down  the  timber,  it  was  held 
that  the  defendant  could  not  justify  under  a  license  from  the  mortgagee,  and 
that  an  issue  joined  on  a  traverse  of  the  freehold  of  the  latter,  must  be  found 
for  the  plaintiff.  Bunyan  v.  Mersereau,  17  Johnson,  331.  So  far  was  this 
reasoning  pushed,  that  a  payment,  or  even  a  tender  of  the  debt  after  the 
day,  was  held  to  be  as  effectual  a  bar  to  the  recovery  of  the  land,  as  if 
made  at  the  time  fixed  by  the  condition  of  the  mortgage.  Arnott  v.  Post,  6 
Hill,  65;  Jackson  v.  Craft,  18  Johnson,  110;  Edwards  v.  The  Fireman's 
Fire  Ins.  Co.,  21  Wend.  4G7.  It  follows  under  this  course  of  decision,  that 
as  the  assignment  of  a  mortgage,  is  the  assignment  of  a  chose  in  action  and 
not  of  an  estate,  it  is  not  within  the  registry  acts,  and  derives  no  additional 
validity  from  being  recorded.  Craft  v.  Webster,  4  Rawle,  255.  And  as 
the  interest  of  the  mortgagee  is  thus  limited  to  a  lien,  he  cannot  maintain 
trespass  de  bonis  asportatis  or  trover,  for  the  recovery  of  timber  cut  down 
by  the  mortgagor  or  third  persons ;  although  he  may  recover-  in  case,  on 
averring  the  insolvency  of  the  mortgagor,  and  the  loss  of  the  debt  by  the 
deterioration  of  the  security.  Cooper  v.  Davis,  15  Conn.  556  ;  Lane  v. 
Hitehcock,  14  Johnson,  213;  Gardner  v.  Heart,  3  Denio,  232.  "The 
mortgagor,  as  such,"  said  Beardsley,  J.  in  the  latter  case,  "has  no  title  to 
the  land  mortgaged;  he  has  neither  jus  in  re,  nor  ad  rem,  but  a  mere  secu- 
rity for  his  debt;  the  title  to  the  land  remains  in  the  mortgagor,  notwith- 
standing the  mortgage.  It  is  a  familiar  principle  of  law,  said  Mason,  J. 
in  Calkins  v.  Calkins,  3  Barbour's  S.  C.  li,  30:,  that  a  mortgage  upon  land 
is  a  mere  security  for  the  debt,  and  that  the  interest  of  the  mortgagee  is  a 
mere  chattel  interest.  (Wilson  &  others  v.  Troupe  &  others,  2  Cowen's 
Rep.  195.  Jackson  v.  Bronson,  19  John.  Rep.  325.  Runyan  v.  Mersereau, 
11  Id.  534.  Edwards  v.  Farmer's  Fire  Ins.  &  Loan  Co.,  21  Wend.  467. 
Fleet  V.  Youngs,  11  Id.  525.  Farmer's  Fire  Ins.  &  Loan  Co,  v.  Ed- 
wards, 26  Id.  554.     Waring  v.   Smith,  2  Barb.  Ch.  Rep.  135.)     In  this 


574  smith's   leading   cases. 

last  case  the  cliancellor  says :  "  Before  tlie  adoption  of  the  revised  statutes, 
it  was  settled  by  the  courts  of  this  state  that  the  mortgagor  was  to  be  consi- 
dered the  real  owner  of  the  fee  of  the  lands  mortgaged,  except  for  ihe  mere 
purpose  of  protecting  the  mortgagor  as  the  holder  of  a  security  thereon  for 
the  payment  of  his  debt.  And  the  revised  statutes  have  restricted  the  legal 
right  of  the  mortgagee  still  further,  by  depriving  him  of  the  power  to  bring 
a  suit  to  recover  the  possession  of  the  mortgaged  premises  before  a  foreclo- 
sure. The  only  right  he  now  has  in  the  land  itself,  is  to  take  possession 
thereof  with  the  assent  of  the  mortgagor,  after  the  debt  has  become  forfeited 
and  payable,  and  to  retain  such  possession  until  the  debt  is  paid.  The  mort- 
gage, then,  is  here  nothing  but  a  chose  in  action,  or  a  mere  lien  or  security 
upon  the  mortgaged  premises  as  an  incident  to  the  debt  itself."  And  the 
whole  doctrine,  as  held  in  New  York,  and  in  many  other  parts  of  this  coun- 
try, Davis  V.  Anderson,  1  Kelly,  17G,  was  summed  up  in  the  State  v.  Law- 
son,  1  English,  269,  in  the  declaration  that  the  equity  of  redemption  of 
the  mortgagor,  had  now  become  the  real  as  well  as  the  beneficial  estate  in 
the  land,  tantamount  to  the  legal  fee,  and  attended  by  all  the  incidents  of 
other  estates  of  inheritance.  This  course  of  decision  is  a  plain  departure  from 
the  doctrines  of  the  common  law  as  enforced  in  England,  and  in  some  respects 
even  from  the  principles  of  equity.  In  Merritt  v.  Lambert,  7  Paige,  344, 
and  Post  v.  Arnott,  2  Denio,  344,  the  chancellor  first,  and  the  members  of 
the  court  of  errors,  subsequently,  pointed  out  the  obvious  mistake  committed 
in  Jackson  v.  Craft,  and  Edwards  v.  The  Farmers  Ins.  Co.,  in  deciding  that 
a  tender  after  the  day,  was  an  answer  to  an  ejectment  brought  on  the  mort- 
gage in  a  court  of  law,  while,  in  point  of  fact,  the  condition  not  having 
been  performed  at  the  time,  was  legally  void,  and  could  not  be  enf;)rced 
either  by  a  tender  or  payment.  A  tender  at  the  day  is  a  performance  of  the 
condition,  and  entitles  the  mortgagor  to  immediate  entry,  whether  it  be 
refused  or  accepted  by  the  mortgagee;  but  a  tender  after  the  day  is  neither 
performance  nor  payment,  and  merely  lays  a  ground  for  the  intervention  of 
equity,  to  compel  the  mortgagee  to  receive  it,  and  reconvey  the  land  to  the 
'mortgagor.  Maynard  v.  Hu'nt,  5  Pick.  243;  Smith  v.  Kelly,  27  Maine, 
247.  The  law  was  so  held  in  Charter  v.  Stevens,  3  Denio,  33,  with  regard 
to  mortgages  of  personal  properly,  and  although  laid  down  in  that  case,  as 
applicable  only  to  personalty,  is  beyond  all  doubt,  equally  so  in  the  case  of 
realty.  Even  payment  after  the  day  is  insufficient  to  defeat  the  estate  of 
the  mortgagee,  or  entitle  the  mortgagor  to  maintain  an  action  of  trespass  at 
law.  Howe  V.  Lewis,  14  Pick.  The  decision  in  Jackson  v.  Ci'aft,  is,  there- 
fore, indefensible  both  at  common  law  and  in  equity,  and  illustrates  the 
danger  of  a  partial  and  limited  introduction  of  the  theory  of  one  system, 
into  the  practice  of  another.  The  innovation  made  in  this  country  on  the 
doctrines  of  the  common  law  with  respect  to  mortgages,  has  been  productive 
of  much  confusion  and  uncertainty,  without  being  attended  by  any  corres- 
ponding advantage,  and  has  often  resulted  in  denying  the  use  of  common 
law  remedies,  to  enforce  undoubted  common  law  rights,  and  for  purposes 
sanctioned  by  the  principles  of  equity. 

Although  the  interest  of  the  mortgagee  under  the  mortgage,  has  been 
reduced  from  the  dignity  of  an  estate  to  that  of  a  mere  lien  or  security, 
throughout  the  greater  part  of  the  Union,  there  has  as  yet,  been  no  disposi- 
tion on  the  part  of  the  courts,  and  but  little  on  that  of  the  legislature,  to 


KEECHV.    nALL.  575 

deny  his  right  to  the  possession  of  the  hind,  charged  as  it  must  always  be 
with  the  equitable  duty  of  applying  the  rents  and  profits  to  the  payment  of 
the  debt,  and  giving  an  account  of  their  application.  It  is,  accordingly, 
held  in  general,  that  the  mortgagee  may  recover  in  ejectment  against  the  mort- 
gagor, and  those  claiming  under  him  by  lease  or  conveyance,  subsequent  to 
the  mortgage,  (supra) ;  72.  Van  Duyne  v.  Thayer,  14  Wend.  236 ;  Begley  v. 
Wallace,  16  S.  &  11.  245 ;  Knaub  v.  Essick,  2  Watts,  282 ;  Hughes  v. 
Edwards,  9  Wheaton,  495;  Randall  v.  Phillips,  3  Mason,  380;  Dexter  v. 
Phillips,  1  Sumner,  116;  Blaney  v.  Bearce,  2  Greenleaf,  132;  Bower  v. 
Crane,  1  New  Hampshire,  169;  Erskine  v.  Townsend,  2  Mass.  495  ;  Heed 
v.  Davis,  4  Pick.  216;  Henshaw  v.  Willis,  9  Humphreys,  568;  Chapman 
V.  Armistead,  4  Munford,  382 ;  although  in  New  York  and  Indiana,  t!ie 
law  has  been  changed  by  statute,  and  the  right  of  the  mortgagee  to  posses- 
sion abrogated.  Jackson  v.  Myers,  11  Wend.  537  ;  Steward  v.  Hutchins, 
13  id.  495;  Jones  v.  Thomas,  8  Blackford,  428.  But  while  the  existence 
of  this  right  has  been  generally  admitted,  many  distinctions  have  been  taken 
as  to  its  exact  nature,  and  the  mode  in  which  it  must  be  exercised. 

Unless  there  is  something  to  distinguish  the  legal  position  of  a  mortgagor, 
who  continues  in  possession  after  the  execution  of  the  mortgage,  from  that  of 
other  persons  who  hold  over  without  right,  after  a  previous  right  has  termi- 
nated, he  must  be  regarded  simply  as  a  tenant  by  the  sufferance  of  the  mort- 
gagee, and  as  such,  liable  to  be  ejected  at  any  moment  by  the  latter  without  pre- 
vious warning.  It  has,  accordingly,  been  decided  that  the  mortgagee  may 
enter  upon  the  mortgagor,  or  recover  in  ejectment  against  him,  without  giving 
any  previous  notice  of  his  intention  or  demanding  possession  of  the  mortgaged 
premises.  Brown  v.  Cram,  1  New  Hampshire,  169;  Pettingill  v.  Evans, 
5  id.  54 ;  Newall  v.  Davis,  3  Mass.  152 ;  Colman  v.  Packard,  16  id.  39  ; 
Heed  v.  Davis,  4  Pick.  216;  Blaney  v.  Bearce,  2  Greenleaf,  132  ;  The  Fitch- 
burg  Man.  Corporation  v.  Milven,  15  id.  270 ;  Mayo  v.  Fletcher,  14  Pick. 
525 ;  Stone  v.  Patterson,  19  Pick.  476 ;  Welch  v.  Adams,  1  Metcalf,  494 ; 
The  Northampton  Paper  Mills  v.  Ames,  8  id.  1;  Shute  v.  Greaves,  7 
Blackford,  1 ;  Hobart  v.  Sandford,  13  New  Hampshire,  226.  The  mort- 
gagor and  those  claiming  under  him,  cannot  be  made  liable  as  trespassers 
by  the  mortgagee  before  entry,  because,  until  then,  their  possession  though 
without  right,  is  not  wrongful.  But  an  entry  on  the  land,  accompanied  by 
a  notice  to  the  tenants  of  the  mortgagor  to  withdraw,  will  invest  the  mort- 
gagee with  a  constructive  possession,  and  enable  him  to  bring  an  action  of 
trespass,  for  their  subsequent  continuance  in  possession.  The  Northampton 
Paper  Mills  v.  Ames;  Jones  v.  Thomas,  8  Blackford,  428;  Stone  v.  Pat- 
terson, 12  Pick.  476,  (supra).  The  mortgagee's  estate  is,  notwithstanding, 
so  far  anomalous,  even  in  those  parts  of  this  country,  where  there  has  been 
the  least  departure  from  the  common  law,  that  his  recovery  in  trespass, 
quare  clausum  fregit,  or  for  mesne  profits  against  the  mortgagor  or  third 
persons,  is  limited  to  the  period  subsequent  to  entry,  instead  of  extend- 
ing back  by  relation,  as  in  ordinary  cases,  to  the  time  when  the  right,  under 
which  the  entry  is  made,  first  accrued.  Parsons  v.  Wills,  17  Mass.  419 ; 
Howe  V.  Lewes,  14  Pick.  329 ;  Wilder  v.  Houghton,  1  id.  87  ;  Field  v. 
Swan,  10  Metcalf,  112. 

In  New  York,  however,  the  courts  regarded  the  position  of  a  mortgagee, 
after  the  execution  of  the  mortgage,  as  analogous  to  that  of  a  tenant  at  will, 


576  smith's  leading  cases. 

and  hold  that  lie  was  couscqueutl}' entitled  to  six  months  notice,  before  eject- 
ment brought  by  the  mortgagor.  Jackson  v.  Longhead,  2  Johnson,  75  ; 
Dickinson  v.  Jackson,  6  Coweu,  149.  But  it  was  also  decided  that,  as  an 
assignment  by  a  tenant  at  will  determines  the  will,  and  entitles  the  rever- 
sioner to  an  immediate  recovery,  the  same  rule  would  apply  in  the  case  of 
an  assignment  by  a  mortgagor,  and  that  an  ejectment  might  be  brought 
against  the  assignee  without  previous  notice.  Jackson  v.  Fuller,  4  Johnson, 
215;  Jackson  v.  Hopkins,  18  id.  188;  Jackson  v.  Stackhouse,  1  Cowen, 
126. 

The  possession  of  a  mortgagor,  after  the  execution  of  the  mortgage,  has, 
notwithstanding,  been  treated  as  a  tenancy  at  will,  in  many  of  the  cases,  where 
he  has  been  held  liable  to  an  ejectment  without  previous  notice.  Morey  v. 
]\lcGuire,  4  Vermont,  827 ;  Lull  v.  Matthews,  19  id.  322.  This,  however, 
involves  no  inconsistency,  for  although  what  would  once  have  been  a  tenancy 
at  will,  is  now  construed  by  the  courts  into  a  tenancy  from  year  to  year, 
which  cannot  be  determined  without  notice,  yet  there  is  no  reason  why  a 
true  tenancy  at  will  determinable  at  pleasure  should  not  exist  when  such  is 
the  express  or.  implied  intention  of  the  parties.  Hargrave's  Coke  Lit.  55  a, 
note  3.  A  better  criterion  of  the  nature  of  the  mortgagor's  interest,  may  be 
found  in  the  right  to  the  emblements,  which  is  one  of  the  best  defined  inci- 
dents of  a  tenancy  at  will.  It  was  held  in  Jones  v.  Thomas,  8  Blackford, 
178,  that  the  mortgagor  cannot  take  the  emblements,  even  when  he  is 
expelled  without  warning  by  the  mortgagee.  And  a  dictum  to  the  same 
effect  may  be  found  in  Mayo  v.  Fletcher.  He  cannot,  therefore,  be  regarded 
as  a  tenant  at  will,  consistently  with  these  decisions.  It  was,  however, 
decided  in  Cassidy  v.  Rhodes,  12  Ohio,  88,  that  the  tenants  of  the  mort- 
gagor were  entitled  to  the  emblements,  when  ejected  unexpectedly  by  the 
mortgagee,  whatever  might  be  the  rule  as  to  the  mortgagor  himself.  There 
can  be  little  doubt  that  the  decisions  in  New  York,  which  put  the  possession 
of  a  mortgagor  on  the  footing  of  a  tenancy  at  will,  are  erroneous,  and  that 
the  view  taken  in  Massachusetts,  is  the  better  law,  for  although  the  mort- 
gagor holds  the  premises  by  the  sufferance  of  the  mortgagee,  yet  he  does  not 
hold  of  him;  and  as  the  peculiar  relation  of  tenure  is  not  created,  the 
mortgagor  cannot  properly  be  described  as  a  tenant  at  will.  Mayo  v.  Flet- 
cher; Tucker  v.  Keeler,  4  Vermont,  161;  Morey  v.  McGruire,  id.  137; 
Pettingill  v.  Evans,  5  New  Hampshire,  327.  The  law  was  so  held  in  Wins- 
low  v.  The  Merchaut|5  Ins.  Co.,  4  Metcalf,  300,  and  again  in  Butler  v. 
Paige,  7  id.  40,  when  it  was  decided,  that  a  mortgagor  in  possession,  does 
not  stand  in  the  relation  of  a  tenant  to  the  mortgagee,  and  is  not  entitled  to 
remove  fixtures  erected  on  the  mortgaged  premises,  subsequently  to  the  exe- 
cution of  the  mortgage,  and  for  the  benefit  of  his  trade. 

It  is,  however,  well  settled  under  the  decision  in  Mayo  v.  Fletcher, 
and  that  in  Wilkinson  v.  Hall,  (supra),  that  a  provision  in  the  mortgage  or 
in  any  cotemporaneous  agreement,  authorizing  the  mortgagor  to  remain  in 
possession  until  the  lime  fixed  for  the  performance  of  the  condition,  or  for 
any  other  determinate  period,  will  operate  as  a  demise,  and  create  a  true 
tenancy  between  the  parties.  Wheeler  v.  Montefiore,  2  Q.  B.  133;  Doe  v. 
Goldwin,  ib.  143 ;  Smith  v.  Taylor,  98  Alabama,  133.  But  in  order 
to  give  the  character  of  a  lease  to  a  proviso  or  stipulation,  that  the  mort- 
gagor shall  remain  in  possession,  the  time  during  which  it  is  to  operate,  must 


KEECn    V.    HAL  I.  577 

be  certain  in  itself,  or  susceptible  of  being  reduced  to  certainty,  for  other- 
wise, whatever  may  be  its  effect  in  equity,  it  will  be  nothing  more  than  a 
covenant  at  law  and  cannot  be  set  up  as  a  bar  to  an  action  of  ejectment 
brought  by  the  mortgagee.     Doe  v.  Day,  2  Q.  B.  147. 

The  right  to  recover  the  mortgaged  premises  in  ejectmeut  will  pass  to  an 
assignee  from  the  mortgagee ;  Jackson  v.  Minkler,  10  Johnson,  480 ;  Jack- 
son V.  Bowen,  7  Cowen,  21 ;  Chapman  v.  Armistead,  4  Munford,  82 ;  and 
may,  of  course,  be  exercised  against  parties  claiming  under  the  mortgagor 
whether  by  absolute  conveyance,  Jackson  v.  Fuller,  4  Johnson,  215; 
Jackson  v.  Hopkins,  18  id.  188  ;  Jackson  v,  Stackhouse,  1  Cowen,  126  ; 
Erskine  v.  Townsend,  2  Mass.  493;  or  merely  as  tenants  for  life  or  years. 
Gould  V.  Newman, -6  Mass.  329;  The  Northampton  Paper  Mills  v.  Ames,  8 
Metcalf,  1 ;  Henshaw  v.  Welles,  9  Humphreys,  568. 

An  ejectment  may  also  be  brought  by  the  heir  of  the  mortgagee  who  will, 
however,  hold  the  land  when  recovered  in  trust,  first  for  the  executors  of 
the  ancestor  and  subject  to  their  interest  in  the  debt,  for  the  benefit  of 
the  mortgagor.  Van  Duyne  v.  Thayre,  14  Wend.  236.  And  in  Pennsyl- 
vania, where  an  equitable  title  is  sufficient  to  support  an  ejectment,  the 
executors  of  the  mortgagee,  are  allowed  to  recover  the  land  by  an  action  in 
their  own  names  instead  of  proceeding  in  that  of  the  heir.  Simpson  v. 
Ammons,  1  Binney,  177;  Smith  v.  Shuler,  12  S.  &  B.  243.  A  similar 
practice  prevails  in  Massachusetts,  although  less  consistent  with  the  usual 
course  of  procedure  in  that  state.     Howe  v.  Lewis,  14  Pick.  329. 

H. 


*WIGGLES  WORTH    v.    D  ALLISON.    [*300] 

TRINITY— 19  GEO.  3. 

[reported  dougl.  201.](a) 

A  custom  that  the  tenant,  whether  by  parol  or  deed,  shall  have  the  way-g'oing-  crop, 
after  the  expiration  of  his  term,  i.s  good,  if  not  repugnant  to  the  lease  by  which 
he  holds. 

This  was  an  action  of  trespass  for  mowing,  carrying  away,  and  convert- 
ing to  the  defendant's  own  use,  the  corn  of  the  plaintiff,  growing  in  a  field 
called  Hibaldstow  Leys,  in  the  parish  of  Hibaldstow,  in  the  county  of  Lin- 
coln.    The  defendant  Dallison  pleaded  liberura  tenementum,   and  the  other 

{n)  [And  where  entitled  by  custom  to  the  way-goinor  crop,  he  keepings  the  fences  in 
repiiir,  the  possession  remains  in  the  tenant.    See  Griffiths  v.  Pulseton,  13  M.  &.  W.  359.] 

Vol.  I.— 37 


578  smith's  leading   case;?. 

defendant  justified  as  his  servant.  The  plaintiff  replied,  that  true  it  was 
that  the  locus  in  quo  was  the  close,  soil,  and  freehold  of  Dallison  ;  but,  after 
stating  that  one  Isabella  Dallison,  deceased,  being  tenant  for  life,  and  Dalli- 
son, the  reversioner  in  fee,  made  a  lease  on  the  2nd  of  March,  1753,  by  which 
the  said  Isabella  demised,  and  the  said  Dallison  confirmed,  the  said  close  to 
the  plaintiff",  his  executors,  administrators  and  assigns,  for  twenty-one  years, 
to  be  computed  from  the  1st  of  May,  1755,  and  that  the  plaintiff",  by  virtue 
thereof,  entered  and  continued  in  possession,  till  the  end  of  the  said  terra  of 
twenty-one  years, — he  pleaded  a  custom,  in  the  following  words,  viz. 
"That,  within  the  parish  of  Hibaldstow,  there  now  is,  and,  from  time 
whereof  the  memory  of  man  is  not  to  the  contrary,  there  hath  been  a  cer- 
tain ancient  and  laudable  custom,  there  used  and  approved  of,  that  is 
to  say,  that  every  tenant  and  farmer  of  .any  lands  within  the  same  parish, 
for  any  term  of  years  which  hath  expired  on  the  first  day  of  May,  in 
any  year,  hath  been  used  and  accustomed,  and  of  right  ought,  to  have, 
take,  and  enjoy,  to  his  own  use,  and  to  reap,  cut,  and  carry  away, 
when  ripe  and  fit  to  be  reaped  and  taken  away,  his  way-going  crop,  that  is 
to  say,  all  the  corn  growing  upon  the  said  lands  which  hath  before  the  expi- 
ration of  such  term  been  sown  by  such  tenant  upon  any  part  of  such  lands, 
not  exceeding  a  reasonable  quantity  thereof  in  proportion  to  the  residue  of 
such  lands,  according  to  the  course  and  usage  of  husbandry  in  the  same 
parish,  and  which  hath  been  left  standing  and  growing  upon  such  lands  at 
the  expiration  of  such  term  of  years."  He  then  stated  that,  in  the  year 
1775,  he  sowed  with  corn  part  of  the  said  close,  being  a  reasonable  part  in 
proportion  to  the  residue  thereof,  according  to  the  course  and  usage  of  hus- 
bandry in  the  said  parish,  and  that  the  corn  produced  and  raised  by  such 
sowing  of  the  corn  so  sown  as  aforesaid,  being  the  corn  in  the  declaration 
mentioned,  at  the  end  of  the  term,  and  at  the  time  of  the  trespass  commit- 
ted, was  standing  and  growing  in  the  said  close,  the  said  time  not  exceeding 
a  reasonable  time  for  the  same  to  stand,  in  order  to  ripen  and  become  fit  to 
be  reaped,  and  that  he  was  during  all  that  time  lawfully  possessed  of  the 
said  corn,  as  his  absolute  property,  by  virtue  of  the  custom.  The  defend- 
ant, in  his  rejoinder,  denied  the  existence  of  any  such  custom,  and  con- 
cluded to  the  country.  The  cause  was  tried  before  Eyre,  Baron,  at  the  last 
assizes  for  Lincolnshire,  when  the  jury  found  the  custom  in  the  words  of 
the  replication. 

Baldwin  moved,  in  arrest  of  judgment,  that  such  a  custom  was  repug- 
nant to  the  terms  of  the  deed,  and  therefore,  though  it  mii^ht  be  good  in 
respect  to  parole  leases,  could  not  have  a  legal  existence  in  the  case  of 
leases  by  deed.  He  relied  on  Trumper  v.  Carwardine,  before  Yates,  Jus- 
ticc(i)  the  circumstances  of  which  case  were  these : 

"  The  plaintiflf  had  been  lessee  under  the  corporation  of  Hereford  for  a 
term  of  twenty-one  years,  which  expired  on  the  4th  of  December,  1767.  In 
the  lease  there  was  no  covenant  that  the  tenant  should  have  his  off-going 
crop.  In  the  seed-time,  before  the  expiration  of  the  term,  he  sowed  the 
allow  with  wheat.  The  succeeding  tenant  obstructed  him  in  cutting  the 
wheat  when  it  became  ripe,  and  cut  and  housed  it  himself,  for  his  own  use. 
Upon  this  the  plaintiff"  brought  an  action  on  the  case,  and  declared  on  a 

(6)  At  the  summer  assizes  for  Herefoidsliire,  1769. 


WIGGLES  WORTH    V.     DALLISON.  579 

custom  in  *Herefordshire  for  tenants  who  quit  their  farms  at  Christ-  p^r,/^-]-. 
mas  or  Candlemas  to  reap  the  corn  sown  the  preceding  autumn.  L  J 
Yates,  Justice,  held  that  the  custom  could  not  legally  extend  to  lessees  by 
deed,  though  it  might  prevail,  by  implication,  in  the  ease  of  parole  agree- 
ments. That,  in  the  case  of  a  lease  by  deed,  both  parties  are  bound  by  the 
express  agreements  contained  in  it,  as  that  the  term  shall  expire  at  such  a 
day,  &c.;  and,  therefore,  all  implication  is  taken  away.  That,  if  such  a 
custom  could  be  set  up,  the  Statute  of  Frauds  would  be  thereby  superseded 
in  Herefordshire. (c)  Accordingly  the  plaintiff  did  not  recover  on  the  cus- 
tom, although  on  another  count  in  trover,  in  the  same  declaration,  he  had  a 
verdict." 

A  rule  to  show  cause  was  granted. 

The  case  was  argued  on  Tuesday,  the  8th  of  June,  by  Hill,  Serjeant, 
Chambre  and  Dayrell,  for  the  plaintiff,  and  Cust,  Baldwin,  Balguy,  and 
Gougl)  for  the  defendants;  when  three  objections  were  made  on  the  part  of 
the  defendants,  viz. :  1.  That  the  custom  was  unreasonable.  2.  That  it  was 
uncertain.  3.  That,  as  had  been  contended  on  moving  for  the  rule,  it  was 
repugnant  to  the  deed  under  which  the  plaintiff  had  held. 

For  the  plaintiff  it  was  argued,  1.  That  it  was  not  an  unreasonable  cus- 
tom, because,  without  an  express  agreement,  or  such  a  custom  as  this,  there 
could  be  no  crop  the  last  year  of  a  term,  for  the  tenant  would  not  sow  if  he 
could  not  reap,  and  the  landlord  would  not  have  a  right  to  enter  till  the 
expiration  of  the  term.  That  it  was  for  the  advantage  of  the  public  as 
much  as  customs  for  turning  a  plough  or  drying  nets,  on  another  person's 
laud,  which  had  been  held  to  be  good.ffZ)  That  it  bore  a  great  analogy  to 
the  right  of  emblements,  and  was  founded  on  the  same  principle,  namely, 
the  encouragement  of  agriculture.  It  was  not  prejudicial  to  any  one;  not 
to  the  landlord,  because  without  it  his  land  must  be  unemployed  and  unpro- 
ductive for  a  whole  season;  nor  to  the  succeeding  tenant,  because  he  would 
have  his  turn  at  the  end  of  his  term.  2.  That  it  was  sufficiently  certain, 
by  the  reference  to  the  residue  of  the  lands  not  sown,  and  to  the  course 
and  usage  of  husbandry  in  the  parish.  This  is  as  much  certainty  as  the 
nature  of  the  subject  will  admit  of;  for,  if  it  had  been  that  so  many  acres 
might  be  sown  and  reaped,  that  would  have  been  *incompatible  with  r^on.^-i 
those  variations  in  the  proportion  of  ploughed  land,  which  arise,  at  L  "^-^ 
different  times,  from  circumstances  in  the  course  of  cultivation  and  hus- 
bandry. Reasonable  is  an  epithet  which  sufficiently  qualifies  the  extent  of 
customs,  and  is  generally  used  in  pleading  them;  as  with  regard  to  custom- 
ary fines  paid  to  the  lord  of  a  manor,  estovers  prescribed  for  by  a  party  to 
be  taken  for  the  use  of  his  house,  &c.  In  the  case  of  Bennington  v.  Tay- 
lor, reported  in  Lutwyche,('e)  where  the  defendant,  in  an  action  of  trespass, 
had  pleaded  a  right  to  distrain  for  twelve  pence  for  stallage,  due  by  pre- 
scription, for  the  land  near  every  stall  in  a  fair,  and,  on  a  motion  in  arrest 
of  judgment,  it  was  objected,  that  the  prescription  was  uncertain,  aud  there- 
fore void,  the  quautity  of  land  not  being  ascertained,  the  court  held  it  to  be 

(c)  Qu.  This  argiiiiiciit  seems  more  ap|jlicablc  lo  parole  leases,  because,  if  a  parole 
lease  for  tiirce  years  could  he  extcnried  iti  some  degree  for  half  a  year  longer  by  such  a 
custom,  it  might  bo  said  this  would  be  repugnant  to  the  Statute  of  Frauds. 

{d)  Vide  Davis  32,  b.  (e)  C.  B.  E.  or  T.  12  VV.  3 ;  2  Lutw.  1517, 1519. 


580  smith's   leading    cases. 

certain  enough,  because  the  quantity  was  to  be  ascertained  by  the  common 
usage  of  the  fair.  In  all  such  cases,  whether  the  quantity  or  amount  is  in 
truth  reasonable  or  not,  is  for  the  jury  to  decide.  3.  That  the  circum- 
ptance  of  the  plaintiff's  lease  in  this  case  having  been  by  deed,  made  no  dif- 
ference. There  was  no  agreement  contained  in  the  deed,  that  the  defendant 
would  depart  from  the  custom,  although  the  parties  must  have  known  of  it 
when  the  lease  was  executed.  He  did  not  claim  under  any  parole  contract 
express  or  implied  ;  and,  therefore,  the  argument  of  repugnance  did  not 
apply;  and  the  Nisi  Prius  case  which  had  been  cited,  weut  upon  mistaken 
reasoning.  Hill,  Serjeant,  admitted,  that  he  knew  of  no  instance  in  the 
Reports,  of  a  similar  custom  to  this,  in  the  case  of  freehold  property ;  but 
he  said  that  there  were  several  with  regard  to  copyholds  that  went  much 
farther;  and  he  cited  Eastcourt  v.  Weeks,(/)  where  a  custom,  that  the 
executors  and  administrators  of  every  customary  tenant  for  life,  if  he  should 
die  between  Christmas  and  Lady-day,  should  hold  over  till  the  Michaelmas 
following,  is  stated  on  the  pleadings  :(^)  and  no  objection  taken  to  it  on  the 
argument  of  the  case. 

For  the  defendant  were  cited,  Grantham  v.  Hawley;(A)'White  v.  Sayer,(i) 
in  which  last  case  a  custom  for  a  lord  of  a  manor  "to  have  common  of  pas- 
ture in  all  the  lands  of  his  tenants  for  life  or  years,"  which  had  been  pleaded 
in  justification  of  a  trespass  in  the  land  of  a  tenant  for  years,  was  held  to 
be  void  and  against  law,  for  that  such  a  privilege  is  contrary  to  the  lease, 
*^n^i  ^6^°o  P^^'*'  ^^  ^^^  thing  demised,  *and  different  from  a  prescription 
L  -^  to  have  a  heriot  from  every  lessee  for  life,  because  that  is  only  colla- 
teral.(j)  A  case  relied  on  by  Houghton,  Justice,  in  White  v.  Sayer,(/i;)  in 
which  he  said  the  court  had  decided  that  a  custom  for  lessees  for  years  to 
have  half  a  year  after  the  end  of  their  terra,  to  remove  their  utensils,  was 
void,  as  being  against  law;  Starpup  v.  Dodderidge,(/)  where  the  court 
refused  to  grant  a  prohibition,  on  the  suggestion  of  a  modus  "  to  pay,  upon 
request,  at  the  rate  of  two  shillings  for  every  pound  of  the  improved  yearly 
rent  or  value  of  the  land,"  because  the  yearly  rent  or  value  were  variable 
and  uncertain;  Nailor,  qui  tam,  v.  Scott, (m)  where  a  custom  having  been 
found  by  a  jury,  ''that  every  housekeeper  in  the  parish  of  Wakefield  hav- 
ing a  child  born  there,  should,  at  the  time  when  the  mother  was  churched, 
or  at  the  usual  time  after  her  delivery  when  she  should  be  churched,  pay 
tenpence  to  the  vicar,"  the  court,  on  a  motion  in  arrest  of  judgment,  deter- 
mined that  the  custom  was  void,  being,  1.  uncertain,  because  the  usual  time 
for  women  to  be  churched  was  not  alleged  ;(/*)  2.  unreasonable,  because  it 
obliged  the  husband  to  pay  if  the  woman  was  not  churched  at  all,  or  if  she 

(/)  T.  inw.3;  1  Lutw.  f99,  801. 

{(.')  It  is  found  by  the  special  verdict,  the  action  being'  cji-ctinent. 

(//)  T.  13  Jac.  1  Hob.  132.  Tiiat  case,  if  at  all  applicable,  seems  to  me  to  make  for  the 
plaintiff.  It  is  curious  in  one  respect,  viz.,  that  the  question  was  brou2;ht  on  in  an  action 
of  debt  on  a  common  bond  conditioned  for  the  payment  of  :2()/.  to  the  pliiintiff  if  a  certain 
crop  of  corn  did  of  right  belong  to  him ;  or,  in  oilier  words,  if  the  question  of  law  was  in 
his  favour. 

(t)  B   R.  M.  19  Jac.  1  Palm.  211.  (j)  Cites  21  H.  7,  14. 

(A)  B.  R.  iM.  19  Jac.  1  Palm.  211. 

{I)  E.  4  Ann.2Ld.  Ray m.  1158;  2  Salk.  657;   1  Mod.  60. 

(m)   E.  2  G.  2  ;  2  Ld,  Raym.  1558. 

(n)  111  that  case  the  custom,  as  suggested,  did  not  refer  to  the  usage  of  the  parish. 


WIGGLESWORTII    V.    DALLISON.  581 

removed  from  the  parish,  or  died  before  the  time  of  churching :  Carleton  v. 
Brightwell,(o)  where  the  defendant,  on  a  bill  for  tithes,  set  up  a  modus  that 
"  the  inhabitants  of  such  a  tenement,  with  the  Lands  usually  enjoyed  there- 
with, should  pay  such  a  sum  for  tithe  corn :"  and  it  was  held  by  the  Master 
of  the  Rolls  to  be  void  for  uncertainty;  Harrison  v.  Sharp,(j5)  where  a 
modus  that,  ''when  any  of  the  inclosed  pastures  in  a  certain  vill  were 
ploughed  and  sown  with  corn  or  grain  of  any  kind,  or  laid  for  meadow,  and 
mown  and  made  into  hay,  tithes  in  kind  were  paid  to  the  rector,  but  when 
eaten  and  depastured,  then  the  occupier  paid  to  the  vicar  one  shilling  in 
the  pound  of  the  yearly  rent  or  value  thereof,  and  no  more,  upon  some  day 
after  Michaelmas  yearly,"  was  held  void,  on  the  authority  of  Starpup  v. 
Dodderidge;  Wilkes  v.  Broadbent,(5)  where  the  Court  of  Common  Pleas, 
and  afterwards,  on  error  brought,  the  Court  of  King's  Bench,  held  a  custom 
found  by  verdict,  "  for  the  lord  of  a  manor,  or  the  tenants  of  his  collieries 
who  had  sunk  pits,  to  throw  the  earth  and  coals  on  the  land  near  such  pits, 
such  laud  being  customary  tenement  and  part  of  the  manor,  there  to  con- 
tinue, and  to  lay  and  continue  *wood  there  for  the  necessary  use  of  r;|-q()4.-i 
the  pits,  and  to  take  coals  so  laid,  away  in  carts,  and  to  burn  and  L 
make  into  cinders  coals  laid  there,  at  their  pleasure,"  to  be  void,  because, 
among  other  reasons,  the  word  near  was  too  vague  and  uncertain  ;  Oland  v. 
Burdwick,(?-)  where  ^  feme  copyholder  durante  viduitafe,  having  sowed  the 
land,  and  then  married,  it  was  determined  that  the  lord  should  have  the 
corn,  upon  the  principle,  that,  when  the  interest  in  land  is  determined  by 
the  act  of  the  party,  he  shall  not  have  the  crop  :  an  anonymous  case  in 
Moore,(s)  where  it  was  held,  that  a  custom,  "that  lessee  for  years  should 
hold  for  half  a  year  over  his  term,"  was  bad  ;  Roe,  lessee  of  Bree,  v.  Lees,(<) 
where,  in  an  ejectment  to  recover  a  farm  of  about  sixty  acres,  of  which  fifty- 
one  were  included,  and  nine  lay  in  certain  open  fields,  a  special  case  was 
reserved,  which  stated  a  custom,  "  that  when  a  tenant  took  a  farm,  in  which 
there  was  any  open  field,  more  or  less,  for  an  uncertain  term,  it  was  consi- 
dered as  a  holding  from  three  years  to  three  years ;"  and  though  the  court 
decided  against  the  custom  on  other  grounds,  yet,  by  their  reasoning,  it 
clearly  appeared  that  they  thought  it  void  for  uncertainty,  because  the  quan- 
tity of  open  ground  was  not  ascertained,  and  one  rood  might  determine  the 
tenure  of  100  acres  of  land  inclosed.  Besides  the  above  authorities,(i()  the 
case  before  Yates,  Justice,  was  much  relied  on.  It  was  admitted,  that,  in 
cases  where  the  usual  crop  of  the  country  is  such,  that  it  cannot  come  to 
maturity  in  one  year,  a  right  to  hold  over  after  the  end  of  the  term,  in  a 
parole  demise,  may  be  raised  by  implication ;  as  where  saffron  is  cultivated, 
in  Cambridgeshire,  liquorice,  near  Pontefract,  or  tobacco,  which  formerly 
used  to  be  planted  in  Lincolnshire;  but  it  was  contended,  that,  in  such 
(iis's,  a  lease  by  deed  would  preclude  such  implication,  as  the  parties  must 
be  stipj.'osed  to  have  described  all  the  circumstances  relative  to  the  intended 
tc'Utiro    in   the  written  instrument.      Such  a  custom  as  that  set  up,  in  the 

(0)  Cane.  T.  1 728,  2  P.  W.  462.  (p)  T.  1 724,  Bunb.  1 74. 

(q)  B.  R.  E.  1 8  G.  2,  2  Str.  1224.  (r)  B.  R.  H.  37  El.  Cro.  Eliz.  460  :  5  Co.  1 1 6. 

(s)  H  3  Ed.  6.     Moore,  8  pi.  27. 

(0  C.  B.  M.  18  G.  3.     Since  reported  in  2  Black.  1171. 

(u)  4  Co.  .51  b.     1  Roll.  Abr.  563,  pi.  i),  et  Co.  Litt,  55,  were  also  cited  for  the  general 
priiiciples  concerning  customs  and  einbleincn's.  , 


582  smith's   leading    cases. 

present  case,  could  not,  it  was  said,  be  of  sufficient  antiquity  with  respect  to 
leases  by  deed,  as  in  the  time  of  llichavd  I.,  and  long  afterwards,  tenanta 
had  no  permanent  interest  in  their  lands ;  or,  if  there  could  be  such  a  custom, 
the  plaintiflF's  lease  could  not  be  within  it,  because  the  custom  must  have 
r^oAt-i  applied  to  the  first  of  May,  old  style,  and  *this  lease  was  made  and 
*-  J  commenced  after  the  alteration  was  introduced  by  24  Geo.  2,  c. 
23.(f) 

Tiie  court  took  time  to  consider;  and  this  day.  Lord  Mansfield  delivered 
their  opinion  as  follows  : 

Lord  Mansfield. — We  have  thought  of  tliis  case,  and  we  are  all  of  opin- 
ion, that  the  custom  is  good.  It  is  just,  for  he  who  sows  ought  to  reap,  and 
it  is  for  the  benefit  and  encouragement  of  agriculture.  It  is,  indeed,  against 
the  general  rule  of  law  concerning  emblements,  which  are  not  allowed  to 
tenants  who  knew  when  their  term  is  to  cease,  because  it  is  held  to  be  their 
fault  or  folly  to  have  sown,  when  they  knew  their  interest  would  expire 
before  they  could  reap.  But  the  custom  of  a  particular  place  may  rectify 
what  otherwise  would  be  imprudence  or  folly.  The  lease  being  by  deed 
does  not  vary  the  case.  The  custom  does  not  alter  or  contradict  the  agree- 
ment in  the  lease;  it  only  superadds  a  right  which  is  consequential  to  the 
taking,  as  a  heriot  may  be  due  by  custom,  although  not  mentioned  in  the 
grant  or  lease.  (i«) 

The  rule  dlscharged.{x) 


Few  questions  are  of  more  frequent  lordship,)  "  that  in  commercial  tran?nc- 
practical  occurrence  than  those  which  tions  extrinsic  evidence  of  custom  and 
involve  the  admissibility  of  parol  evi-  usage  is  admissible  to  annex  incidents 
dence  of  custom  and  usage,  for  the  pur-  to  written  contracts,  in  matters  with  re- 
pose of  annexing  incidents  to,  or  explain-  spect  to  which  they  are  silent.  The 
ing  the  meaning  of,  written  contracts,  same  rule  has  also  been  applied  to  con- 
In  one  of  the  last  cases  on  the  subject,  tracts  in  other  transactions  of  life,  in 
the  following  luminous  account  of  this  which  known  usages  have  been  estab- 
head  of  the  law  was  given  by  Parke,  B.,  lished  and  prevailed  ;  and  this  has  been 
delivering  the  judgment  of  the  Court  of  done  upon  the  principle  of  presumption 
Exchequer.     1  Alee.  &  Welsh.  474.  that  in  such  transactions,  the  parties  did 

"  It  has  been  long  settled,"  (said  his  not  mean  to  express  in  writing  the  whole 

(«)  The  new  style  commenced  the  1st  of  January,  175.3.  But  if  this  arfrumcnt  were 
admitted  in  its  full  extent,  no  custom  could  exist  where  a  certain  day  of  the  month  tniide 
part  uf  it,  as  from  the  errors  in  the  former  method  of  computation  the  nominal  day  was 
continually  deviatinjr,  by  degrees,  from  the  natural  day. 

(m)  Vide  Doe  v.  Snowden,  C.  D.  M.  19  Geo.  3,  2  IJiack.  1225,  where  it  is  said  by  the 
court,  that  if  there  is  a  taking  from  Old  Lady-day  (5th  April)  the  custom  of  most  countrirs 
would  entitle  the  lessee  to  enter  upon  the  arable  at  Candlemas  {2nd  of  February,)  to  pre- 
pare for  the  Lent  corn,  without  any  special  words  for  that  purpose,  i.  e.  in  a  written  agree- 
ment for  seven  years;  for  tiie  court  were  speaking  of  such  an  agreement. 

(^x)  Judgment  w-as  accordingly  entered  ff)r  the  plaintiff,  upon  which  a  writ  of  error  was 
brougiit,  in  the  Exclicquer  Chamber,  and  the  defendant  assigned  for  errors,  "that  the  cus- 
tom contained  and  set  forth,  &,c.  is  a  custom  void  in  law,  and  is  contrary  to  and  incon- 
sistent with  the  said  indenture  of  lease  in  the  said  replication  mentioned."  The  case  was 
argued  at  Serjeants'  Inn,  before  the  Judges  of  C.  B.,  and  the  Barons  of  the  Exchequer,  by 
Balguy,  for  the  j)laintifF  in  error,  and  Clian)bre  for  the  defendant.  TItc  olijection  to  the 
reasonableness  of  the  custom  was  abandoned.  In  T.  21  G.  (27lh  June,  1781,)  Lord  Lough- 
borough delivered  the  unanimous  opinion  of  the  Court  of  Exchequer  Chamber,  that  the 
custom  was  good  ;  and  the  judgment  was  affirmed. 


W  I  G  G  L  E  S  W  0  R  T  II     V.     D  A  L  L  I  S  0  N. 


583 


of  the  contract  by  \vl)ich  they  intended 
to  be  bound,  but  to  contract  with  refer- 
ence to  those  known  usages.  Whether 
such  a  relaxation  of  tlie  common  law 
was  wisely  applied  where  formal  instru- 
ments have  been  entered  into,  and  par- 
ticularly leases  under  seal,  may  well  be 
doubted  ;  but  the  contrary  has  been  esta- 
r*'10n  ^''s'^S''  by  such  authority,  and  the 
^  -'  ^relations  between  landlord  and 
tenant  have  so  long  been  regulated  upon 
the  supposition  that  all  customary  obli- 
gations not  altered  by  the  contract  are 
to  remain  in  force,  that  it  is  too  late  to 
pursue  a  contrary  course;  and  it  would 
be  productive  of  much  inconvenience  if 
this  practice  were  now  to  be  disturbed. 

"Tiie  common  law,  indeed,  does  so 
little  to  prescribe  the  relative  duties  of 
landlord  and  tenant,  since  it  leaves  the 
latter  at  liberty  to  pursue  any  course  of 
management  he  pleases,  provided  he  is 
not  guilty  of  waste,  that  it  is  by  no 
means  surprising  that  the  court  should 
have  been  favourably  inclined  to  tbe  in- 
troduction of  those  regulations  in  the 
mode  of  cultivation,  which  custom 
and  usage  have  established  in  each 
district  to  be  the  most  beneficial  to  ail 
parties. 

"  Accordingly,  in  Wigglesworth  v. 
Dallison,  afterwards  affirmed  on  a  writ 
of  error,  the  tenant  was  allowed  an 
away-going  crop,  though  there  was  a 
formal  lease  under  seal.  There  the 
lease  was  entirely  silent  on  the  subject 
of  such  a  right;  and  Lord  Manstield 
said  the  custom  did  not  alter  or  contra- 
dict the  lease,  but  only  added  something 
to  it. 

"  'I'he  question  subsequently  came 
under  the  consideration  of  the  Court'bf 
King's  Bench  in  Senior  v.  Armitage, 
reported  in  Mr.  Holt's  Nisi  Prius  Cases, 
p.  197.  In  that  case,  which  was  an  ac- 
tion by  a  tenant  against  his  landlord  for 
a  compensation  for  seed  and  labour,  un- 
der the  denomination  of  tenant-right, 
Mr.  Justice  Biyiey,  on  its  appearing  that 
there  was  a  written  agreement  between 
the  parties,  nonsuited  the  plaiulifF.  The 
court  afterwards  set  aside  that  nonsuit, 
and  h'.-ld,  as  appears  by  a  manuscri|)t 
note  of  that  learned  Judge,  that  thouyli 
there  was  a  wriltcii  contract  between 
landlord  and  tenant,  the  custom  of  the 
country  would  still  be  binding,  if  not 
inconsintent  with  the  terms  of  such 
written  contract;  and  that,  not  only  ail 
common  law  obligations,  but  those  nn- 
posed    by   custom,    were    in    full    force 


where  the  contract  did  not  vary  them. 
Mr.  Holt  appears  to  have  stated  I  he  case 
too  strongly  when  he  said  that  the  court 
held  the  custom  to  be  oi)erative,  "unlets 
the  agreement  in  express  terms  exclud- 
ed it;"  and  probably  he  had  not  been 
quite  accurate  in  attributing  a  similar 
opinion  to  the  Lord  Chief  Haron  Thomp- 
son who  presided  on  the  second  trial.  It 
would  appear  that  the  court  held  that  the 
custom  operated,  unless  it  could  be  col- 
lected tram  the  instrument,  cillur  ex- 
pressly or  impliedly,  that  the  parties  did 
not  mean  to  be  governed  by  it. 

"On  the  second  trial,  the  Lord  Chief 
Baron  Thompson  held  that  the  custom 
prevailed;  although  the  written  instru- 
ment contained  an  express  stipulation 
that  all  the  manure  made  on  the  farm 
should  be  spent  on  it,  or  left  at  the  end 
of  the  tenancy,  without  any  compensa- 
tion being  paid.  Such  a  stipulation 
certainly  does  not  exclude  by  implica- 
tion the  tenant's  right  to  receive  a  com- 
pensation for  seed  and  labour. 

"The  next  reported  case  on  this  sub- 
ject is  Webb  v.  Plummer,  2  B.  &  A. 
750  ;  in  which  there  was  a  lease  of  down 
lands,  with  a  covenant  to  spend  all  the 
produce  on  the  premises,  and  to  fold  a 
flock  of  sheep  upon  the  usual  part  of  the 
farm;  and  also,  in  the  last  year  of  the 
term,  to  carry  out  the  manure  on  parts 
of  the  fallowed  farm  pointed  out  by  the 
lessor,  the  lessor  paying  for  the  fallowing 
land  and  carrying  out  the  dung,  but 
nothing  for  the  dung  itself,  and  paying 
for  grass  on  the  ground  and  thre.^h- 
ing  the  corn.  The  claim  was  for  a  cus- 
tomary allowance  for  fohlasfe  (a  mode 
of  manuring  the  ground;)  but  ilie  court 
held,  as  there  was  an  express  provision 
for  some  payment,  on  quitting,  tiir  the 
things  covenanted  to  be  done,  and  an 
omission  oi'foldage,  the  customary  obli- 
gation to  pay  for  the  latter  was  exclud- 
ed. No  doubt  could  exist  on  that ;  the 
language  in  the  lease  was  equivalent  to 
a  stipulation  that  the  lessor  should  pay 
for  the  things  mentioned,  and  no  more 

"  The  question  then  is,  whether  from 
the  terms  of  the  lease  now  under  consi- 
deration, it  can  be  collected  tiiat  the 
parlies  nipanl  to  exclude  customary 
allowance  fur  seed  and  labour." 

In  the  case  from  which  the  above  is 
extracted,  viz.,  Ilulton  v.  Warren,  1 
Alee.  &  Welsh.  466.  a  custom  by  which 
the  tenant,  cultivating  according  to  the 
course  of  good  husbandry,  was  entitled, 
on  quitting,  to  receive  a  reasonable  al- 


584 


smith's  leading   cases. 


lowance  in  respect  of  seed  and  labour 
r*'^fri  ^^^towcd  on  *the  arable  land  in 
■-  '  -^  the  last  year  of  his  tenancy,  and 
was  bound  to  leave  the  manure  for  the 
landlord,  if  he  would  purchase  it,  was 
held  not  to  be  excluded  by  a  stipulation 
in  the  lease  that  he  would  consume 
three-fourths  of  the  hay  and  straw  on  the 
farm,  and  spread  the  manure  arising 
therefrom,  and  leave  such  of  it  as  should 
not  be  so  spread  on  the  land,  on  receiv- 
wg  a  reasonable  price  for  it. 

From  the  above  luminous  judgment  of 
Baron  Parke  it  may  be  collected,  that 
evidence  of  custom  or  usage  will  be  re- 
ceived to  annex  incidents  to  written  con- 
tracts on  matters  with  respect  to  which 
they  are  silent. 

1st.  In  contracts  between  landlord  and 
tenant. 

2nd.  In  commercial  contracts. 

3rd.  In  contracts  in  other  transactions 
of  life,  in  which  known  usages  have  been 
established  and  prevailed. 

But  that  such  evidence  is  only  receiv- 
able when  the  incident  which  it  is  sought 
to  import  into  the  contract  is  consistent 
with  the  terms  of  the  written  instrument. 
If  inconsistent,  the  evidence  is  not  re- 
ceivable, and  this  inconsistency  may  be 
evinced. 

1st.  By  the  express  terms  of  the  writ- 
ten instrument. 

2nd.  By  implication  therefrom. 

With  respect  to  the  first  class  of  cases 
in  which  the  evidence  has  been  received, 
viz.,  that  of  contracts  between  landlord 
and  tenant,  that  is  so  thoroughly  discus- 
sed in  Hutton  v.  Warren,  part  of  the 
judgment  in  which  is  above  set  out,  and 
in  Wigglesworth  v.  Dallison,  the  princi- 
pal case,  that  it  seems  unnecessary  to 
say  more  on  that  head  of  the  subject. 
See  Holding  v.  Piffott,  7  Bing.  465  ;  Ro- 
berts V.  Barker,  1  C.  &  M.  8(13 ;  Hughes 
V.  Gordon,  1  Bligh.  287;  Clinan  v.  Cooke, 
2  Sch.  &  Lef  22;  White  v.  Sayer, 
Palm.  211 ;  Furley  v.  Wood,  1  Esp.  198; 
Doe  v.  Benson,  4  B.  &  A.  588. 

Wiih  respect  to  commercial  contracts, 
it  has  been  long  establit-hed  that  evi- 
dence of  an  usage  of  trade  applicable  to 
the  contract,  and  which  the  parties  mak- 
ing it  knew,  or  may  be  rea.conably  pre- 
sumed to  have  known,  is  admissible  for 
the  purpose  of  importing  terms  into  the 
contract  respecting  which  the  written 
instrument  is  silent.  The  words  ^'nsuire 
of  trade"  are  to  be  understood  as  refer- 
ring to  a  particular  usage  to  be  estab- 
lished by  evidence,  and  perfectly  distmct 


from  that  general  custom  of  merchants' 
which  is  the  universal  established  law  of 
the  land,  which  is  to  be  collected  from 
decisions,  legal  principles,  and  analogies, 
not  from  evidence  in  pais,  and  the 
knowledge  of  which  resides  in  the  breasts 
of  the  Judges.  (See  Vallejo  v.  Wheel- 
er, Lofft.  631 ;  Eden  v.  E.  I.  Company, 
1  Wm.  Black.  299,  2  Burr.  1216;  sed 
vide  Haille  v.  Smith,  1  B.  &  P.  563,  in 
which  evidence  of  the  general  custom  of 
merchants  was  received.)  This  distinc- 
tion, indeed,  between  the  gent^ral  cus- 
tom of  merchants,  which  is  part  of  the 
law  of  the  realm,  and  the  particular  us- 
ages of  certain  particular  businesses,  was 
not,  it  seems,  so  clearly  marked  in  for- 
mer times  as  it  is  now;  thus  we  find 
Buller,  Justice,  saying,  2  T.  R.  p.  73, 
that  "within  the  last  thirty  years  (his 
lordship  spoke  in  1787)  the  commercial 
law  of  this  country  has  taken  a  very  dif- 
ferent turn  from  what  it  did  before.  Be- 
fore that  period  we  find  that,  in  courts 
of  law,  all  the  evidence  in  mercantile 
cases  was  thrown  together ;  they  were 
left  generally  to  a  jury,  and  produced  no 
established  principle.  From  that  time 
we  all  know  the  great  study  has  been  to 
find  some  certain  general  principles 
.which  shall  be  known  to  all  mankind  ; 
not  only  to  rule  the  particular  case  then 
under  consideration,  but  to  serve  as  a 
guide  for  the  future." 

But  with  regard  to  particular  commpr- 
cial  usages,  evidence  of  them  is  admis- 
sible either  to  ingraft  terms  into  the 
contract,  as  in  those  cases  concerning 
the  time  for  which  the  underwriters' 
liability  in  respect  of  the  goods  shall  con- 
tinue after  the  arrival  of  the  ship,  Noble 
v.*Kennaway,  Dougl.  510,  and  see  the 
observations  on  this  case  in  Ougier  v. 
Jennings,  1  Camp.  503,  n. ;  Moon  v. 
Guardians  of  Witney  Union,  3  Bing.  N. 
C.  817;  or  to  explain  its  terms,  as  was 
done  in  Udhe  v.  Walters,  3  Camp.  16, 
by  showing  that  the  Gulf  of  Finland, 
though  not  so  treated  by  geographers,  is 
considered  by  mercantile  men  part  of  the 
Baltic,  and  in  Hutchmson  v.  Bowker,  5 
Mee.  &  W'cl.sb.  535,  where  it  was  proved 
that  ^'■oo*^/ barley  and  fine  barley  signified 
in  mercantile  usage  difibrent  things. 
See  further  Robertson  v.  Clarke,  1  Bing. 
445;  Bottomley  v.  Forbes,  5  iiing.  N.  C. 
123;  Moxon  v.  Atkms,  3  Camp.  200; 
Vallance  v.  Dewar,  1  Camp.  403,  et 
notas;  Cochran  v.  *Retburg,  3  r-ton^-i 
Esp.  121  ;  Birch  v.  Depeyster,  1  '-  '  "-• 
Stark.  210,  4  Camp.  385;  Donaldson  v. 


WIGGLESWORTH    V.    DALLISON. 


585 


Forster,  Abb.  on  Shipp.  part  3,  cap.  1 ; 
Baker  v.  Payne,  1  Ves.  jun.  459;  Raitt 
V.  Mitchell,  4  Camp.  156;  Lethulier's 
case,  2  Salk.  443;  Charaud  v.  Anger- 
stein,  Peake,  43 ;  Bold  v.  Rayner,  1  Alee. 
&,  Welsb.  440 ;  Powell  v.  Horton,  2  Bing. 
N.  C.  668 ;  Bowman  v.  Horsey,  2  M.  & 
Rob.  85.  { "  In  mercantile  transactions, 
and  others  of  ordinary  occurrence,  evi- 
dence of  established  usage  is  admissible, 
not  merely  to  explain  the  terms  used, 
but  to  annex  customary  incidents,  when 
such  usage  is  not  expressly  or  impliedly 
excluded  by  the  tenor  of  the  written  in- 
strument," per  Parke,  B.  in  Syers  v. 
Jonas,  2  Exch.  Ill,  116.}  [And,  as  to 
evidence  of  a  usage  to  pay  an  agent, 
Hutch  V.  Carrington,  5  C.  &  P.  471 ;  for 
a  factor  to  sell  in  his  own  name,  John- 
ston V.  Usborne,  11  Ad.  &,  Ell.  549 ;  that 
"sold  18  pockets  Kent  hops  at  100s." 
means  in  the  hop  trade  lOOs.  per  cwt., 
Spicer  v.  Cooper,  1  Q.  B.  424;  that  "in 
turn  to  deliver,"  in  a  charter-party  to 
r  *SOPfl  1  ^'^'^'"s  means  at  a  particular 
'•  -■  spot  in  the  port  for  *a  particu- 

lar purpose,  Robertson  v.  Jackson,  2  C. 
B.  412;  to  explain  the  sense  in  which 
"  the  word  London"  was  employed,  Mal- 
]an  v.  May,  13  M.  &  W.  511,  {and  see 
Simpson  v.  Margitson,  11  Q.  B.  23, 
32.} 

In  Sutton  V.  Tatham,  10  Ad.  &  Ell. 
27,  it  was  laid  down  that  a  person  em- 
ploying a  broker  on  the  Stock  Exchange, 
impliedly  gives  him  authority  to  act  in 
accordance  with  the  rules  there  estab- 
lished, though  the  principal  be  himself 
ignorant  of  them.  And  in  Bayliffe  v. 
Butterworlh,  1  Exch.  416,  Sutton  v.  Tat- 
ham was  expressly  approved  of  by  Parke, 
B.,and  Rolfe,  B. ;  andAlderson,  B.,  laid 
down  the  law  generally,  that  "a  person 
who  deals  in  a  particular  market  must 
be  taken  to  deal  according  to  the  custom 
of  that  market,  and  he  who  directs  an- 
other to  make  a  contract  at  a  particular 
place  must  be  taken  as  intending  that 
the  contract  may  be  made  according  to 
the  usage  of  that  place."  And  Parke,  B., 
distinguished  ihe  casesof  Gabay  v.  Lloyd, 
3  B.  &.  C.  793,  and  Bartlettv.  Pentiaud, 
10  B.  &  C.  7G0,  in  wliich  the  usage  of 
Lloyd's  CofTee-honsc  was  held  not  to  be 
binding  on  persons  who  were  not  shown 
to  have  been  cognizant  of,  or  to  have  as- 
sented to  it,  on  the  ground  that  in  Bay- 
liffe V.  Butterworlh,  the  question  was  as 
to  tl)e  authority  which  the  broker  re- 
ceived. {And  Bayliffe  v.  Butterworlh 
has  since  been  follovved  in  the  Queen's 


Bench  ;  Pollock  v.  Stables,  12  Q  B.  765. 
See,  also,  Baylcv  v.  Williams,  7  C.  B. 
886. }  In  Stewart  v.  Cauty,  8  M.  &  W. 
160,  a  rule  of  the  Liverpool  Stock  Ex- 
change was  admitted  in  evidence  be- 
tween parties  not  members  of  it,  upon  a 
question  what  was  a  reasonable  time  for 
the  completion  of  a  sale  of  shares  made 
at  Liverpool  through  tiie  agency  of 
brokers.  See  further,  Stewart  v.  Aber- 
dein,  4  M.  &  VV.  211.] 

So,  in  a  case  not  falling  within  the 
head  of  mercantile  contracts,  evidence 
has  been  received  to  show  that  by  the 
custom  of  a  particular  district  the  words 
"1000  rabbits"  meant  1200  rabbits. 
Smith  V.  Wilson,  3  B.  &  Ad.  728 ;  and 
see  Clayton  v.  Gregson,  5  A.  &  E.  302. 
{In  Hinton  v.  Locke,  5  Hill,  437,  Bron- 
son,  J.,  said  that  he  should  feel  great 
difliculty  in  subscribing  to  the  case  of 
Smith  V.  Wilson  ;  that  it  was  difficult  to 
deny  that  the  evidence  in  that  case  was 
a  plain  contradiction  of  the  express  con- 
tract of  the  parties;  and  that  no  usage 
or  custom  is  admissible  in  evidence 
where  it  contradicts  the  agreement  of 
the  parties.  But  in  Macy  and  another 
V.  Whaling  Ins.  Co.  9  Metcalf,  354,  363 ; 
Smith  V.  Wilson  appears  to  be  approved  ; 
and  it  is  remarked  that  evidence  is  ad- 
missible, to  show  that  the  contract,  not- 
witstanding  the  common  meaning  of  the 
language  used,  was  in  fact  made  in  re- 
ference to  the  usage  in  the  trade  to 
which  the  contract  relates;  and  see  also 
Brown  v.  Brown  and  others,  8  id.  573, 
576. }  [So  in  Reg.  v.  Stoke-upon-Trent, 
5  Q.  B.  303,  an  agreement  in  writing 
"to  serve  B.  from  11  Nov.  1815,  to  11 
Nov.  1817,"  at  certain  wages,  "to  lose 
no  time  on  our  own  account,  to  do  our 
work  well,  and  behave  ourselves  in  eve- 
ry respect  as  good  servants,"  was  consi- 
dered capable  of  explanation  by  a  usage 
in  the  particular  trade  for  servants,  un- 
der similar  contracts,  to  have  certain 
holidays  and  Sundays  to  themselves. 
See  Phillips  v.  Innes,  4  CI.  &.  Fin.  234. 
Also,  in  Grant  v.  Maddox,  15  M.  &  VV. 
737,  an  agreement  by  the  manager  of  a 
theatre  to  engage  an  actress  "lor  three 
year-s,  at  a  salary  of  bl.,  GZ.,  and  11.  per 
week  in  those  years  respectively,"  was 
explained  by  the  usage  of  the  theatrical 
profession  to  mean,  that  the  actress  was 
to  be  paid  only  whilst  the  theatre  was 
open  for  performance.  So,  again,  in 
Evans  v.  Pratt,  3  Man.  &,  Gr.  759;  4 
Scott,  N.  R.  370,  S.  C,  in  a  memoran- 
dum as  to  a  race,  the  run  described  was 


58G 


SMITHS  LEADING  CASES. 


r  *'1()8/  1  "^*""'  'Tfii'ss  across  a  country," 
^  '  -■  ami  *evi(Ience  was  admitted  to 
show  tint  in  ?portinn^  parlance  tho  mean- 
ini,'  of  tho.se  words  is  straii^ht  across  over 
ail  obstructions  without  liberty  to  go 
lhrout;h  open  gates.]  So  if  A.  &-  B.  wore 
to  agree  ti^r  a  lease,  it  would  be  implied 
from  custom  that  the  lessor  should  pre- 
pare and  the  lessee  pay  for  it.  Grissell 
V.  Robinson,  3  Bing.  N.  C.  11.  [Al- 
though, in  general,  upon  a  sale  of  pro- 
perty, the  vendee  who  is  to  boar  the  ex- 
pense of  the  conveyance  ougiit  to  prepare 
it.  Price  v.  Williams,  1  M.  &  W.  6; 
Poole  V.  Hill,  6  M.  &,  \V.835;  Stephens 
v.  De  Medina,  4  Q.  B.  422.  See,  how- 
ever, Doe  d.  Clarke  v.  Stilwell,  8  Ad.  & 
Ell.  645.] 

But  the  admissibility  of  evidence  of 
custom  to  explain  the  meaning  of  a  word 
used  in  any  contract  whatever,  is  subject 
to  this  qualification,  viz.,  that  if  an  Act 
of  Parliament  have  given  a  definite 
meaning  to  any  particular  word  denoting 
weight,  measure,  or  number,  it  must  be 
understood  to  have  been  used  with  that 
meaninn-,  and  no  evidence  of  custom  will 
be  admissible  to  attribute  any  other  to  it; 
per  curiam  in  Smith  v.  Wilson  ;  see  also 
Ilockin  V.  Couke,  4  T.  R.  314;  The 
Master  of  St.  Cross  v.  Lord  Howard  de 
VValden,  6  T.  R,  3.3S;  Wing  v.  Erie, 
Cro.  Eliz.  267;  Noble  v.  Durell,  3  T. 
R.  271.  In  Doe  v.  Lea,  11  East,  312, 
it  was  held,  that  a  lease  by  deed  of 
lands  since  the  new  style,  to  hold  from 
the  feast  of  St.  Michael,  must  mean 
New  Michaelmas,  and  could  not  be 
shown  by  parol  evidence  to  refer  to  Old 
Michaelmas.  In  Furley  v.  Wood,  1  Esp. 
19^,  Runn.  Eject.  112,  Lord  Kenyou  had 
under  similar  circumstances  admitted 
parol  evidence  of  the  custom  of  the  coun- 
try to  explain  the  meaning  of  the  word 
Michaelmas ;  and  the  court,  in  Doe  v. 
Lea,  on  hearing  that  case,  asked  whe- 
ther the  holding  there  was  by  deed, 
which  it  does  not  appear  to  have  been; 
and  to  which  it  may  be  added,  that  it 
appears  possible  that  it  was  not  even  in 
writing. 

In  Doe  V.  Benson,  4  B.  &  A.  .588,  evi- 
dence of  the  custom  of  the  country  was 
held  admissible  for  the  purpose  of  show- 
ing that  a  letting  by  parol  from  Lady- 
day,  meant  from  Old  Lady-day.  The 
court  referred  to  Furley  v.  Wood,  and 
distinguished  that  case  from  Doe  v.  Loa, 
on  the  ground  that  the  letting  there  was 
by  deed,  "  which,"  said  Holroyd,  Justice, 
**  is  a  solemn  instrument;  and  thtrefure 


parol  evidence  was  inadmissible  to  e.^- 
plain  the  expression  Lady-day  there 
used,  even  supposing  that  it  was  equivo- 
cal." It  is  perhaps  not  easy  to  conceive 
a  distinction,  founded  on  principle,  be- 
tween the  admissibility  of  evidence  to 
explain  terms  used  in  a  deed,  and  terms 
used  in  a  written  contract  not  under  seal : 
for  though,  when  the  terms  of  a  deed  are 
ascertained  and  understood,  the  doctrine 
of  estoppel  gives  them  a  more  conclu- 
sive effect  than  those  *of  an  un-  •r:(cqnQf.i 
sealed  instrument ;  yet  the  rule    '-  -' 

that  parol  evidence  shall  not  be  admitted 
to  vary  the  written  terms  of  a  contract 
seems  to  apply  as  strongly  to  a  contract 
without  a  seal  as  with  one:  while,  on 
the  other  hand,  it  appears  from  the  prin- 
cipal case  of  Wigglesworth  v.  Dallison, 
without  going  further,  that  in  cases 
where  parol  evidence  is  in  other  respects 
admissible,  the  fact  that  the  instrument 
is  under  seal  forms  no  insuperable  ob- 
stacle to  its  reception.  Nor  does  it  seem 
necessary,  in  order  to  prevent  a  contra- 
diction between  Doe  v.  Lea,  and  Doe  v. 
Benson,  and  Furley  v.  Wood,  to  estab- 
lish any  such  distinction  between  deeds 
and  other  written  instruments ;  for  in 
Doe  v.  Benson,  the  letting  seems  not  to 
have  been  in  writing,  so  that  the  objec- 
tion to  the  admission  of  parol  evidence, 
founded  upon  the  nature  of  a  written 
instrument,  did  not  arise.  In  Furley  v. 
Wood  the  letting  was  perhaps  also  by 
mere  parol;  and  though  the  evidence 
was,  it  is  true,  offered  to  explain  the 
notice  to  quit,  still  it  may  be  urged,  that 
when  the  holding  was  once  settled  to 
commence  from  Old  Michaelmas,  the 
notice  to  quit,  which  probably  contained 
the  words  "at  the  expiration  of  your 
term,"  or  something  ejusdem  generis, 
must  be  held  to  have  had  express  refer- 
ence to,  and  to  be  explained  by  it.  We 
must  not,  therefore,  it  is  submitted,  too 
hastily  infer  that  parol  evidence  of  cus- 
tom would  be  receivable  to  explain  a 
word  of  time  used  in  the  lease  in  writ- 
ing, but  not  under  seal. 

Doe  v.  Lea  was  acted  upon  by  the 
Court  of  Common  Pleas  in  Smith  v. 
Walton,  8  Bing.  238,  where  the  defen- 
dant avowed  for  rent  payable  "at  Mar- 
tinmas to  wit,  November  23d;"  the 
plaintiff  pleaded  non  tenuit;  and  a 
holding  from  Old  Martinmas  having 
been  proved,  the  court  *thought  ponq-i 
that  tiie  words  after  the  vide-  ^  '  '  ■' 
licet  must  be  rejected,  as  inconsis- 
tent with  the   term  Martinmas,   which 


W  I  a  G  L  E  S  W  O  R  T  II     V.      D  A  L  L  I  S  O  N. 


587 


they  thought  themselves  bound  by  stat- 
ute to  interpret  November  11th;  that  no 
evidence  was  admissible  to  explain  the 
record ;  and  that  there  was,  therefore,  a 
fatal  variance  between  it  and  the  evi- 
dence ;  see  Hockin  v.  Cooke,  4  T.  R. 
314 ;  The  Master  of  St.  Cross  v.  Lord 
Howard  de  Wah!en,6T.  R,338;  Kear- 
ney v.  King,  2  B.  &.  A.  301 ;  Sprowle 
V.  Leg-ge,  1  B.&  C.  16. 

However,  evidence  of  usage,  though 
sometimes  admissible  to  add  to,  or  ex- 
plain, is  never  so  to  vary,  or  to  contra- 
dict either  expressly  or  by  implication, 
the  terms  of  a  written  instrument,  Ma- 
geo  V.  Atkinson,  2  Mee.  &-  Welsh  442  ; 
Adams  v.  Wordley,  1  M.  &  Welsh.  374 ; 
[Trueman  v.  Loder,  11  A.  &  E.  5S9.] 
Thus,  in  Yeates  v.  Pym,  6  Taunt.  445, 
in  an  action  on  a  warranty  of  prime 
singed  bac9n,  evidence  was  offered  of 
an  usage  in  the  bacon  trade,  that  a  cer- 
tain latitude  of  deterioration  called 
"average  taint"  was  allowed  to  subsist 
before  the  bacon  ceased  to  answer  the 
description  of  prime  bacon.  This  evi- 
dence was  held  inadmissible,  first  at 
Nisi  Prius,  by  Heath,  Justice,  and  after- 
wards by  the  Court  of  Common  Pleas. 
In  Blackett  v.  Royal  Exchange  Insur- 
ance Company,  2  Tyrwh,  266,  which 
was  an  action  on  a  policy  upon  '■'■ship, 
<Sfc..,  boat,  and  other  furniture,''^  evi- 
dence was  offered  that  it  was  not  the 
usage  of  underwriters  to  pay  for  boats 
slung  on  the  davits,  on  the  larboard 
quarter:  but  was  rejected  at  Nisi  Prius, 
and  the  rejection  confirmed  by  the  Court 
of  Exchequer.  "  The  objection,"  said 
Lord  Lyndhurst,  delivering  judgment, 
"  to  the  parol  evidence  is,  not  that  it 
was  to  explain  any  ambiguous  words  in 
the  policy,  or  any  words  which  might 
admit  of  doubt,  or  to  introduce  matter 
upon  which  the  policy  was  silent,  but 
that  it  was  at  direct  variance  with  the 
words  of  the  policy,  and  in  plain  oppo- 
sition to  the  language  it  used,  viz.,  that 
whereas  the  policy  imported  to  be  upon 
ship,  furniture,  and  apparel  generally, 
the  usage  is  to  say,  that  it  is  not  upon 
furniture  and  apparel,  generally,  but 
upon  part  only,  excluding  the  boat. 
Usage  may  be  admissible  to  explain 
what  is  doubtful,  but  is  never  admissible 
to  contradict  what  is  plain."  In  Roberts 
V.  Barker,  1  Cr.  &  Mee.  808,  the  ques- 
tion was  whether  a  covenant  in  a- lease, 
whereby  the  tenant  bound  himself  not, 
on  quitting  the  land,  to  sell  or  take  away 
the  inanure,  but  to  leave  it  to  be  expen- 


ded by  the  succeeding  tenant,  excluded 
the  custom  of  the  country,  by  which 
the  outgoing  tenant  was  bound  (o  leave 
the  manure,  and  was  entitled  to  be  paid 
for  it.  The  court  held  that  it  did.  '*  It 
was  contended,"  said  Lord  Lyndhurst, 
delivering  judgment,  "that  the  stipula- 
tion to  leave  the  manure  was  not  incon- 
sistent with  the  tenant's  being  paid  for 
what  was  so  left,  and  that  the  custom  to 
pay  for  the  manure  might  be  ingrafted 
on  the  engagement  to  leave  it.  But  if 
the  parties  meant  to  be  governed  by  the 
custom  in  this  respect,  there  was  no  ne- 
cessity for  any  stipulation,  as  by  the  cus- 
tom, tlie  tenant  would  be  bound  to  leave 
the  manure,  and  would  be  entitled  to  be 
paid  for  it.  It  was  altogether  idle, 
therefore,  to  provide  for  one  part  of  that 
which  was  sufficiently  provided  tor  by 
the  custom,  unless  it  was  intended  to 
exclude  the  other  part."  [.Accord.  Clarke 
V.  Roystone,  13  M.  &  W.  752].  See 
further,  Reading  v.  Menham,  1  M.  &, 
Rob.  236. 

[Evidence  of  previous  usage  between 
the  parties  to  a  contract  may  be  admit- 
ted with  the  same  effect,  but  subject  of 
course  to  the  same  restrictions,  as  a 
general  usage  of  trade.  Bourne  v.  Gat- 
lifl'e,  11  CI.  &  Fin.  45:  see  Ford  v. 
Yates,  2  M.  &  Gr.  549,  2  Scott,  N.  R. 
645,  S.  C] 

Lord  Eldon  in  Anderson  v.  Pitcher,  2 
B.  &  P.  168,  expressed  an  opinion,  that 
the  practice  of  admitting  usage  to  ex- 
plain contracts  *ought  not  to  be  pQnga-i 
extended.  [See  also  the  expres-  '-  -• 

sion  of  the  Court  in  Trueman  v.  Loder, 
11  A.  &  E.  539,  and  Johnstone  v.  Us- 
borne,  Ibid.  549].  In  Cross  v.  Eglin,  2 
B.  &  Ad.  106,  evidence  had  been  offered 
for  the  purpose  of  showing  that  the 
plaintiffs,  who  had  contracted  for  "300 
quarters  (more  or  less)  of  foreign  rye," 
could  not  consistently  with  the  usage  of 
trade,  be  required  to  receive  so  large  an 
excess  as  45  quarters  over  the  300 :  the 
question  as  to  the  admissibility  of  the 
evidence  ultimately  proved  immaterial; 
but  Littledale,  Justice,  said  that  where 
words  were  of  such  general  import,  he 
should  feel  much  difficulty  in  saymg  that 
evidence  ought  to  be  received  to  ascertain 
their  meaning.  [See  Lewis  v.  Marshall, 
8  Scott,  N.  R.  477,  7  Man.  &  Gr.  729, 
S.  C,  per  curiam.] 

When  evidence  of  usage  is  admitted, 
evidence  may  be  given  iu  reply,  tending 
to  show  such  usage  to  be  unreasonable. 
Bottomley  v.  Forbes,  5  Bing.  N.  C.  128. 


588  smith's  leading  cases. 

[It  is  right  to  observe,  that  though  in  to  put  a  construction    upon  tlie  entire 

certain  c.isps  above  pointed  out  evidence  contract  or  document.      Hutchinson    v. 

of  usage  is  received  to  explain  the  terms  Bowker,  5  M.  &  VV.535,  and  the  jndg- 

used  in   a  contract,  yet  when  the  jury  ment  in  Neilson  v.  Harford,  8  M.  &  W. 

have  decided   on   the  meaning  of  those  806]. 
terms,  it  is  not  for  them  but  for  the  court 


The  usage  of  a  particular  trade,  or  class  of  persons,  is  competent  cviJcncc 
from  which  the  intention,  understanding,  and  agreement  of  parties  may  be 
implied,  in  those  cases  where  there  is  no  express  contract,  and  where  the 
circumstances  themselves  do  not  fix  absolutely  the  legal  rights  of  the  par- 
ties. In  Smith  and  Stanley  v.  J.  and  I.  Wright,  1  Caines,  43,  upon  a  ques- 
tion whether  goods  shipped  on  deck,  and  ejected  in  a  storm,  were  entitled  to 
average  as  against  the  ship-owners,  evidence  of  usage  against  all^'ing  it  was 
given,  and  the  court  after  showing  that  the  allowance  of  average  would  be 
unreasonable,  decided  against  the  claim  on  the  ground  of  the  usage  ;  and  it 
being  objected  that  the  usage  had  not  been  shown  to  exist  above  thirty  years, 
the  court  considered  that  as  no  objection,  and  said,  "  The  true  test  of  a  com- 
mercial usage  is,  its  having  existed  a  suflBcient  length  of  time  to  have  become 
generally  known,  and  to  warrant  a  presumption  that  contracts  are  made  in 
reference  to  it."  S.  P.  Winsor  and  another  v.  Dillaway,  4  Metcalf,  221. 
An  authority,  as  to  sell,  insure,  &c.,  may  be  implied  from  the  custom  of  a 
trade  or  profession:  Kemp  v.  Coughtry,  11  Johnson,  107  ;  Taylor  v.  Wells, 
3  Watts,  65 ;  Harrington  and  others  v.  M'Shane,  2  id.  443  ;  Galloway  v. 
Hughes  &  al.,  1  Bailey,  553;  De  Forest  v.  Fire  Insurance  Co.,  1  Hall,  84. 
See  also,  Hosea,  Jr.  v.  McCrory,  12  Alabama,  350,  353  ;  and  see  United 
States  V.  MacDaniel,  7  Peters,  3,  15.  Proof  of  the  usage  in  such  cases  is 
received,  not  as  evidence  of  what  the  law  is,  but  as  a  fact  or  circumstance 
from  which  the  intention  of  the  parties  is  to  be  made  out.  Ruan  v.  Gard- 
ner, 1  Washington,  C.  C.  146,  149.  The  usage  of  an  individual  in  his  own 
business,  as  to  the  manner  of  performing  the  business,  or  the  length  and 
kind  of  credit  given,  if  known  to  the  parti/  dealing  with  him,  is  evidence 
competent  to  show  that  the  contract  was  on  those  terms.  Loring  and  al.  v. 
Gurney,  5  Pickering,  16  ;  M'Dowell  and  others,  ex'ors  of  Woods  v.  Inger- 
soU,  5  Sergeant  &  Rawle,  101.  See  Knox  v.  Kives,  Battle  &  Co.,  14  Ala- 
bama, 249,  257. 

In  like  manner,  where  there  has  been  an  express  contract  about  a  matter 
concerning  which  there  is  an  established  custom,  this  custom  is  reasonably 
to  be  understood  as  forming  a  part  of  the  contract,  and  may  be  referred  to, 
to  show  the  intention  of  the  parties  in  those  particulars  which  are  not  ex- 
pressed in  the  contract ;  and  it  is  obvious  that  the  reason  of  the  rule  which 
forbids  the  receipt  of  parol  evidence  of  the  intention  of  the  parties  for  the 
purpose  of  adding  to  a  written  contract,  has  no  application  to  evidence  of 
custom.  In  Williams  k  al.  v.  Gilman,  3  Greenleaf,  276,  evidence  of  usage 
among  printers,  that  upon  a  contract  to  print  a  certain  number  of  books,  an 
agreement  to  print  no  more  was  implied,  was  held  admissible.  In  Van  Ness 
V.  Pacard,  2  Peters,  138,  which  resembles  the  principal  case,  it  was  held, 


AVIGGLESWORTU    V.     D  ALLISON.  589 

that  a  local  usage  for  the  tenant  to  remove,  during  the  term,  fixtures  erected 
by  himself,  gave  that  right  under  an  indented  lease ;  and  the  Court,  per 
Story,  J.,  said,  '^  Every  demise  between  landlord  and  tenant,  in  respect  to 
matters  in  which  the  parties  are  silent,  may  be  fairly  open  to  explanation  by 
the  general  usage  and  custom  of  the  country  or  of  the  district  where  the 
land  lies :  every  person  under  such  circumstances  is  supposed  to  be  cogni- 
zant of  the  custom,  and  to  contract  with  a  tacit  reference  to  it."  In  Sewall 
V.  Gibbs  and  Jenny,  1  Hall,  602,  the  usage  was  shown  to  be  that  on  sales  of 
certain  articles  the  usual  average  tare  allowed  was  10  per  cent.,  but  in  case 
of  fraud  in  the  packing,  the  actual  tare;  and  it  was  held  that  where  notice 
was  given  on  a  sale  by  auction  that  the  sale  was  with  the  usual  tare  of  10 
per  cent.,  the  purchaser,  upon  fraud  being  found  was  yet  entitled,  by  reason 
of  the  usage,  to  an  allowance  of  the  actual  tare.  In  Conner  &  Co.  v.  Robin- 
son, 2  Hill's  South  Carolina,  354,  usage  was  admitted  to  show  that  sales  of 
cotton  in  Charleston  are  to  be  understood  as  made  according  to  the  weight  as 
ascertained  by  the  wharfinger  on  its  arrival,  and  not  by  the  actual  weight. 
See  also,  Wilcox  v.  Wood,  9  Wendell,  349 ;  Consequa  v.  Williugs  and 
Francis,  1  Peters's  C.  C.  172,  225  ;  Thomas  v.  O'Hara,  and  Same  v.  Graves 
and  Toomer,  1  Mill's  Constitutional,  (So.  Car.)  303,  308  ;  Bank  of  Utica  v. 
Smith,  18  Johnson,  230;  United  States  v.  Fillebrown,  7  Peters,  30,  50; 
Clark  v.  Baker,  11  Metcalf,  ISO;  The  Bridgeport  Bank  v.  Dyer,  19  Con- 
necticut, 136,  139;  Barton  v.  McKelway,  2  Zabriskie,  165,  175.  In  Bar- 
ber V.  Brace,  3  Connecticut,  10,  13,  proof  of  a  usage  to  carry  certaia  goods 
on  deck,  was  held  admissible  :  but  on  the  same  point  coming  up  iu  The 
Paragon,  Ware,  322,  though  the  abstract  principle  of  admissibility  was 
granted,  yet  it  was  held  that  as  it  derogated  from  the  general  usage  and  law, 
full  and  clear  proof  was  to  be  required ;  and  it  was  decided  in  this  case  that 
the  alleged  usage  did  not  exist. 

In  like  manner,  in  commercial  instruments  and  written  contracts,  the 
usage  of  a  particular  trade,  profession,  or  place,  may  be  used  to  aid  in  ascer- 
taining the  sense  in  which  certain  words  have  been  used,  whose  signification 
may  be  doubted;  or,  as  it  is  expressed  in  Murray  v.  Hatch,  6  Massachusetts, 
465,  477,  to  "give  a  peculiar  effect  and  meaning  to  the  words  of  a  con- 
tract necessarily  referring  to  the  usage  proved."  See  Browu  v.  Brown  & 
others,  8  Metcalf,  573,  576.  In  Coit  and  Pierpont  v.  The  Commercial 
Insurance  Co.,  7  Johnson,  385,  it  was  decided  that  evidence  was  admissible 
to  show  that  by  usage  and  general  understanding,  the  word  "  roots"  in  New 
York  policies  of  insurance  is  limited  to  mean  such  roots  as  are  perishable  in 
their  own  nature;  and  thereby  excludes  sarsapanlla;  and  similar  evidence 
had  been  received  in  Baker  v.  Ludlow,  2  Johnson's  Cases,  289.  In  Astor 
V.  Union  Insurance  Co.,  7  Cowcn,  202,  it  was  decided  that  the  usage  of 
traders  in  furs  and  skins  was  admissible  to  show  the  meaning  of  those  words 
in  a  policy  of  insurance.  In  Macy  and  another  v.  Whaling  Ins.  Co.,  9 
Metcalf,  354,  362,  usage  was  held  admissible  to  show  that  among  under- 
writers on  whale  ships,  and  their  owners,  the  term  "  outfits"  in  a  policy  of 
insurance,  includes  one  quarter  part  of  the  catchings,  that  amount  of  catch- 
ings  replacing  and  standing  in  lieu  of  outfits.  In  Eyre  v.  Tlie  Marine 
Insurance  Company,  5  Watts  &  Sergeant,  116,  it  was  decided  that  on 
an  insurance  of  a  vessel  at  sea,  for  twelve  months,  with  liberty  of  the 
globe,  and  if  at  sea  at  the  end  of  the  time,   the  risk  to  continue  at  the 


590  smith's  leading  cases. 

same  rate  until  lier  arrival  at  her  port  of  destination  in  the  United  States, 
evidence  was  admissible  that  such  a  voyage  is  known  among  merchants  and 
underwriters  as  a  trading  voj'age,  and  that  by  the  usage  of  trade,  the  vessel 
may  sail  to  any  part  of  the  globe  to  which  she  may  get  a  freight  at  any  time 
within  twelve  months,  and  that  she  continues  to  be  covered  by  the  insurance 
during  such  voyage  after  the  twelve  months ;  and  what  renders  this  case 
extraordinary,  is  the  fact  that  the  policy  had  previously  received  a  judicial 
construction  to  a  contrary  effect :  S.  C.  6  Wharton,  247.     In  Winthrop  v. 
Union  Insurance  Co.,  2  Washington  C.  C.  8,  it  was  held,  that  usage  was 
admissible  to  show  that  in  an  insurance  to  a  foreign  port  and  back,  with  lib- 
erty to  touch  and  trade  for  refreshments  as  usual,  no  part  of  the  cargo  could 
be  sold  at  an  intermediate  port :  but  the  evidence  must  be   of  usage,  not  of 
the  opinions  of  witnesses.      In  Plinton  v.  Locke,  5  Hill,  437,  it  was  decided 
that  on  a  contract  to  pay  the  plaintiff  twelve  shillings  a  day  for  each  man 
employed  by  him  in  the  defendant's  service,  evidence  was  admissible  of  a 
universal  custom  where  the  defendant  lived,  to  consider  ten  liours'  labour  as  a 
day's  work,  and  thereby  to  charge  twelve  and  a  half  hours'  work,  as  the 
labour  of  one  day  and  a  quarter.    In  Avery  and  another  v.  Stewart  and  others, 
2  Connecticut,  GO,  the  meaning  of  "wholesale  factory  price"  was  allowed  to 
be  illustrated  by  usage,  and  was  referred  to  the  jury  as  a  question  of  fact; 
see  some  judicious  remarks  in  Roberts  v.  Button  &  Al.,  14  Vermont,   195, 
203.     In  Allegre  v.  The  Insurance  Company,  G  Harris  &  Johnson,  408,  the 
usage  of  the  port  of  shipment  was  decided  to  be  admissible  to  explain  the 
words  in  a  policy,  the  loss  to  be  paid  within  90  days  "after  proof  and  adjust- 
ment thereof,"  and  to  show  what  proof  of  loss  and  value  was  to  be  required; 
and  in  Allegro's  Adm'rs  v.  Maryland  Insurance  Co.,  2  Gill  &  Johnson,  137, 
the  same  sort  of-evidcnce  was  held  admissible  to  show  that  "cargo"  included 
live-stock  as  well  as  dead.     So,  in  Lawrence   v.   McGregor  &  al.,   5  Ham- 
mond's Ohio,  309,  usage  of  the  river  was  held  admissible  to  explain  matters 
that  were  doubtful  on  the  face  of  the  bill  of  lading.    In  Gordon  &  Walker  v. 
Little,  8  Sergeant  &  Rawle,  533,  the  majority  of  the  court,  Gibson,  J.  dis- 
senting, were  of  opinion  that  evidence   of  usage  was  admissible  to  explain 
the  meaning  of  "  inevitable  dangers  of  the  river"  in  a  bill  of  lading,  and  also 
to  show  that  river-boatmen  are  not,  in  point  of  fact,  common-carriers,  but 
assume  a  different  responsibility;   as  to  the  latter  point   see  also  Dean  v. 
Swoop,  2  Binney,  72,     In  Sleght  v.  Rhinelander  &  al.,  1  Johnson,  192,  it 
was  held  by  the  Supreme  Court  that  evidence  of  the  commercial  meaning 
of  "  sea-letter"  in  a  policy  was  inadmissible,  because  the  legal  meaning  was 
clear;  and  the  judgment  was  reversed  by  the  Court  of  Errors,  2  id.  531,  but, 
apparently,  nut  on  the  ground .  that  the  evidence  was  improperly  excluded. 
And  it  is  a  certain  and  settled  principle,  that  where  the  meaning  is  certain 
and  not  doubtful,  usage  cannot  be  received  to  contradict  or  vary  it;  Macom- 
ber  V.  Parker,  13  Pickering,  176.      Keener  v.  Bank  of  the  United  States, 
2  Barr,  237.     And  the  disposition  to  abide  by  the  legal  meaning  of  written 
instruments,  and  to  prevent  doubtful  usages  from  controlling  fixed  and  ex- 
press agreements,  is  becoming  stronger  and  more  general  in  the  courts.     In 
The  Schooner  Ptceside,  2  Sumner,  568,  it  was  decided  that  where  the  bill  of 
lading  undertook   to  deliver  in   good  order,  ''  the   danger  of  the  seas  only 
excepted,"  evidence  of  a  usage  in  that  region  that  the  ship-owners  are  made 
by  this  clause  responsible  only  for  damage  arising  from  their  own  negligence. 


WIGGLESWORTH    V.    D  ALLISON.  591 

was  contradictory,  and  inadmissible,  and  an  earnest  wish  to  put  an  end  to 
these  local  and  particular  usages  is  expressed  by  Story,  J.     In  Turney  v. 
Wilson,  7  Yerger,  340,  the  same  point  is  decided;  see  dicta  in  M 'Arthur 
and  Hubbert  v.  Sears,  21  Wendell,  190,  194,  approving  of  these  decisions. 
It  is  true,  that  in  Sampson  and  Lindsay  v.  Gazzam,  (3  Porter,  124,  in  a  case 
of  river-navigation,   usage  and  general  understanding  were  decided  to  be 
admissible  to  put  the  same  construction  on  those  words  :  but  this  latter  case 
professes  to  be  decided  chiefly  on  the  authority  of  Gordon   and  Walker  v. 
Little,  and  so  far  forth  proceeds  upon  a  mistake;  for  in  the  Pennsylvania 
case,  of  the  three  judges  present,  one,  Gibson,  J.,  thought  that  no  explana- 
tory evidence  should  be  received,  and  another,  Duncan,  J.,  expressly  said 
that  usage  could  not  be  received  to  contradict  the  written  words  so  much  as 
to  render  the  boat-owners  liable  only  for  their  own  negligence,  if  charged  on 
their  special  contract,  though  he  thought  it  admissible  on  the  general  count 
on  the  custom,  to  show  that  by  the  custom  of  the  state,  the   legal  liability 
of  that  kind  of  carrier  was   less  than  in   England.     See  Kuox  v.  Hives, 
Battle  &  Co.,  14  Alabama,  249,  259.      In   Aymar  and  Amar  v.  Astor,  6 
Cowen,  266,  a  majority  of  the  court,  viz.  Wood  worth  and  Sutherland, 
Js.,  against  C.  J.  Savage,  decided  that  evidence  of  mercantile  usage  and 
understanding  at  New  Orleans  and  New  York  was  inadmissible  to  show  that 
injury  by  rats  was  included  under  the  exception  of  "  perils  of  the  sea."     In 
K.   &  J.   Rankin  v.  The   American  Insurance   Company   of  New  York,  1 
Hall,  619,  it  was  decided,  on  the  ground  that  usage  cannot  contradict  an 
express  agreement  or  fixed  rule  of  law,  that  where,  by  the  policy,  the  in- 
surers bound  themselves  to  pay  for  all  damage   arising  from  perils  of  the 
sea,  evidence  of  usage  in  that  port  and  others,  that  the  insurer  is  not  liable 
unless  a  survey  by  particular  officers  be  first  made  on   board,  and  the  sur- 
veyors find  that  the  goods  were  properly  stowed,  and  that  the  damage  arose 
from  perils  of  the  sea,  is   inadmissible;   for   this  is  varying  the  obligation, 
and  introducing  a  condition  precedent  into  the  contract.     In  Lewis  &  al.  v. 
Thatcher  &  al.,  15  Massachusetts,  431,  it  is  said  by  C.  J.  Parker,  that 
where  there  are  words  in  a  policy  which,  by  legal  construction  are  a  war- 
ranty of  neutrality,  usage  to  show  that  those  words   mean  only  that   the 
vessel  is  documented  as  neutral,  would  be  inadmissible ;  and  in  Homer  v. 
Dorr,  10  id.  26,  a  similar  principle  is  decided.     In  Barksdale  v.  Brown  and 
Tunis,  1  Nott  &  M'Cord,  517,  usage  of  factors  in  that  quarter  to  allow  pur- 
chasers a  week  or  a  fortnight  on  cash  sales,  was  decided  to  be  incompetent 
to  contradict  the  express  orders  of  the  principal  to  sell  for  cash ;  but  Cheeves, 
J.  dissented,  holding  the  usage  good.      In  Allen  v.  Dykers  and  Alstyne,  3 
Hill's  New  York,  593,  it  was  decided  that  evidence  of  an  usage,  general  or 
particular,  among  brokers,  though  known  to  the  agent  of  the  party  who  made 
a  special  contract,  was  inadmissible  when  it  contradicted  "the  fair  and  leiral 
import  of  the  written  contract:"  and  in  the  late  case  of  Hinton  v.  Locke,  5 
Hill,  437,  it  was  said  that  usage  is  never  admissible  when  it  contradicts  the 
agreement  of  the  parties.     In   Gross,  Myers  &  Moore  v.  Criss,  3  Grattan, 
262,  also,  it  was  considered,  that  where  the  meaning  of  the  terms  used  in 
a  letter  of  instructions  is  plain  and  unequivocal,  it  is  not  proper  to  admit  evi- 
dence of  a  local  usage  or  understanding  to  give  a  different  meaning  to  the 
terms  of  the  letter. 

In  those  cases,  where,  though  there  has  been  no  full  and  expressed  con- 


592  smith's    leading    cases. 

tr:ict,  tlie  law  implies  a  particular  contract  or  liability  from  certain  acts  or 
writings,  because  by  general  usage  such  acts  or  writings  are  understood  as 
intended  to  indicate  such  contracts,  or  create  such  liabilities,  a  different  con- 
tract or  liability  will  be  implied,  if  a  different  usage  be  proved;  as,  for 
example,  in  case  of  the  contract  of  endorsement.  It  will  be  remembered 
that  parol  evidence  of  the  intention  of  the  parties  is  admissible  to  rebut  or 
control  a  contract  implied  in  this  manner  from  written  matter;  Susquehanna 
B.  &  B.  Co.  V.  Evans,  4  Washington  C.  C.  480,  481 ;  7  Sergeant  &  Rawle, 
114;  and  evidence  of  usage  is  therefore  quite  unobjectionable.  Accord- 
ingly, it  has  repeatedly  been  decided,  in  relation  to  the  contract  of  indorse- 
ment, that  an  established  usage  of  particular  banks,  as  to  the  time  of  de- 
manding payment  and  giving  notice,  differing  from  the  time  fixed  by  the 
general  law  merchant,  with  which  banks  the  parties  deal,  is  evidence  of 
intention  and  consent  that  the  contract  of  the  indorser  shall  be  modified 
according  to  this  usage,  and  that,  therefore,  the  indorser  is  bound  by  such 
demand  and  notice  as  the  usage  prescribes.  Jones  v.  Fales,  4  Massachu- 
setts, 245 ;  Lincoln  and  Kennebeck  Bank  v.  Page,  9  id.  155 ;  Blanchard  v. 
Hilliard,  11  id.  85;  Pierce  v.  Butler,  14  id.  303;  D.  &  M.  Bank  v.  N.  E. 
Bank,  1  Gushing,  178,  188 ;  The  Bank  of  Columbia  v.  Fitzhugh,  1  Harris 
&  Gill,  239;  Renner  v.  Bank  of  Columbia,  9  Wheaton,  582;  Mills  v. 
Bank  of  the  United  States,  11  id.  431 ;  Bank  of  Washington  v.  Triplett 
and  Neale,  1  Peters, 25,  decided  by  C.  J.  Marshall;  and  see  Cookendorfcr 
V.  Preston,  4  Howard's  S.  Ct.  317,326;  Kilgore  v.  Buckley,  14  Connecticut, 
363,  388 ;  and  the  same  principle  has  been  applied  to  the  manner  of  making 
the  demand  and  giving  notice ;  Whitwell  &  al.  v.  Johnson,  17  Massachu- 
setts, 499;  City  Bank  v.  Cutter  &  al.  3  Pickering,  414;  Chicopee  Bank  v. 
Eager,  9  Metcalf,  583.  In  Halsey  v.  Brown  and  others,  3  Bay,  346,  in  an 
action  against  the  owners  of  a  vessel  for  the  recovery  of  money  undertaken 
to  be  carried  in  the  ship,  for  which  the  master  had  given  a  bill  of  lading,  it 
was  admitted  that  by  the  general  commercial  law,  the  owners  were  liable 
upon  the  contracts  of  the  master,  but  was  held  that  evidence  of  a  custom  in 
Connecticut  and  New  York  that  contracts  to  carry  inoney  are  private  and 
personal  to  the  master,  was  admissible.  In  Allen  v.  Merchant's  Bank  of 
New  York,  22  Wendell,  215,  it  was  held  by  a  majority  of  the  Court  of 
Errors,  that  a  bank  receiving  a  note  for  collection,  which  requires  the  inter- 
vention of  agent-banks  in  another  state,  is  liable  for  their  negligence,  but 
that  general  custom  and  usage  at  the  place  (which  must  be  proved  not  by 
the  opinions  of  merchants,  but  by  their  evidence  as  to  facts,)  might  modify 
and  lessen  this  liability ;  but  is  obvious  from  the  opinions  delivered  in  this 
case,  that  the  usage  was  deemed  admissible,  not  to  alter  the  legal  liability 
flowing  from  a  contract  for  the  collection  of  the  note,  but  to  show  that  in 
point  of  fact  the  contract  of  the  bank  was  not  for  the  collection  of  the  note, 
but  (as  was  held  in  The  Mechanics'  Bank  v.  Earp,  4  llawle,  385,)  for  the 
transmission  of  the  note,  or  some  such  modified  undertaking;  not  to  put  a 
different  meaning  upon  a  contract,  but  to  show  that  a  different  contract  had 
been  made  from  that  which  the  law  would  ordinarily  imply  from  the  general 
understanding  and  practice  of  business  :  see  also  Van  Santvoord  v.  St.  John, 
6  Hill,  158. — These,  it  will  be  observed,  are  cases  of  contracts;  in  which 
the  actual  intention  of  the  parties  always  controls ;  and  the  general  presump- 
tion which  the  law  had  made  as  to  the  intention  from  general  usage,  is  re- 


WIGGLESWORTH    V.     D  ALLISON.  593 

butted  by  that  evidence  of  actual  intention  •which  the  specific  usage  affords  : 
no  principle  of  law  is  oppugned  by  the  usage.  And  it  is  well-settled  that 
usage  is  never  admissible  to  oppose  or  alter  a  general  principle  or  rule  of 
law,  and  upon  a  fixed  state  of  facts,  to  make  the  legal  rights  or  liabilities  of 
the  parties  other  than  they  are  by  the  common  law.  Frith  v.  Barker,  2 
Johnson,  327;  Brown  v.  Jackson,  2  Washington  C.  C.  24;  U.  S.  v. 
Buchanan,  8  Howard's  S.  Ct.  83, 102;  West,  Oliver  &  Co.  v.  Ball  &  Crom- 
melen,  12  Alabama,  340,  347;  Dewees  v.  Lockhart,  1  Texas,  535,  537; 
Bupp  V.  Palmer,  3  Watts,  178.  In  Middleton  v.  Ileyward,  2  Nott  & 
M'Cord,  9,  such  effect  it  was  thought  might  be  given  to  an  usage,  but  upon 
a  new  trial  of  the  same  case,  3  M'Cord,  121,  the  usage  could  not  be  made 
out.  See,  however.  Singleton  v.  Hilliard  &  Brooks,  1  Strobhart,  203,  216. 
In  Snowden  and  another  v.  Warder,  3  Rawle,  101,  it  was  held  that  evidence 
was  admissible  of  an  usage  in  Philadelphia,  that  the  vendor,  upon  a  sale  of 
cotton,  shall  answer  for  latent  defects,  though  there  be  neither  fraud  nor 
warranty;  but  C.  J.  Gibson  dissented;  and  the  case  is  directly  contrary  to 
Thompson  v.  Ashton,  14  Johnson,  316  :  and  is  probably  not  law.  And  a 
usage  will  not  be  recognized  in  a  court  of  law  unless  it  be  reasonable,  and 
adapted  not  only  to  increase  trade,  but  to  promote  just  dealing  between  the 
parties;  Maey  and  another  v.  Whaling  Ins.  Co.  9  Metcalf,  354,368  ;  Bowen 
and  others  v.  Stoddard,  10  id.  375,  381.  In  Bryant  &  al.  v.  Commonwealth 
Insurance  Co.,  6  Pickering,  131,  145,  it  was  decided  that  an  usage  for  a 
master  of  a  stranded  vessel  to  sell  without  necessity,  is  void ;  and  in  Pres- 
cott  V.  Hubell,  1  M'Cord,  94,  evidence  of  a  custom  that  the  note  of  a  third 
person,  given  by  a  sea  captain,  to  be  in  satisfaction  when  paid,  is  an  absolute 
discharge,  was  decided  to  be  inadmissible.  That  usage  cannot  stand  against 
statute,  see  McDowell  and  others,  ex'ors  of  Woods  v.  Ingersoll,  5  Sergeant 
&  Bawle,  101;  as,  in  case  of  usury;  Dunham  v.  Dey;  Same  v.  Gould,  13 
Johnson,  40,  16  id.  367.     See,  however,  Governor  for  Liggatt  v.  Withers, 

5  Grattan,  24,  27.  For  other  cases  where  usage  has  been  rejected  as 
unreasonable,  or  contrary  to  the  common  law,  see  Newbold  v.  Wright 
and  Shelton,  4  Rawle,  195;  Jordan  and  Whitesides  v.  Meredith,  3  Yeates, 
318;  Mussey  v.  Eagle  Bank,  9  Metcalf,  300,  314;  Henry,  Ex'or  v.  Risk 

6  al.,  1  Dallas,  265 ;  Stoever  v.  Lessee  of  Whitman,  5  Binney,  416, 
where  C,  J.  Tilghman  says,  ''  Miserable  will  be  our  condition,  if  pro- 
perty is  to  depend,  not  on  the  contract  of  the  parties,  expounded  by  esta- 
blished  principles  of  law,  but  on  what  is  called  the  custom  of  particular 
places,  so  that  we  may  have  different  law  in  every  town  and  village  of  the 
commonwealth."  But  in  Gibson  v.  Culver  and  Brown,  17  Wendell,  305, 
proof  of  usage  establishing,  in  case  of  common  carriers,  a  different  mode 
of  delivery  from  that  required  by  the  common  law,  was  decided  to  be  ad- 
missible; and  see  dictum  to  the  same  effect  in  Cope  v.  Cordova,  1  Rawle, 
203,  211.  In  Bolton  v.  Colder  and  Wilson,  1  Watts,  360,  where  a  custom, 
that,  where  one  carriage  passes  another  going  the  same  way,  the  leading 
one  must  incline  to  the  right,  was  rejected,  the  court,  per  C.  J.  Gibson, 
said,  "  Nothing  should  be  more  pertinaciously  resisted,  than  these  attempts 
to  transfer  the  functions  of  the  judge  to  the  witness's  stand,  by  evidence  of 
customs  in  derogation  of  the  general  law,  that  would  involve  the  responsi- 
bilities of  the  parties  in  rules,  whose  existence,  perhaps,  they  had  no  reason 
to  suspect  before  they  came  to  be  applied  to  their  rights.      If  the  existence 

Vol.  I.— 38 


594  smith's   leading   cases. 

of  a  law  be  so  obscure,  as  to  be  kuowu  to  the  constitutioual  expounders  of 
it,  only  through  the  evidence  of  witnesses,  it  is  no  extravagant  assumption, 
to  take  for  granted,  that  the  party  to  be  affected  was  ignorant  at  the  time 
when  the  knowledge  of  it  would  have  been  most  material  to  him;  and  to 
try  a  man's  actions  by  a  rule  with  which  lie  had  not  an  opportunity  to 
become  acquainted  beforehand,  is  the  very  worst  species  of  tyranny."  See 
the  remark  of  Bronson,  J.,  in  Cole  v.  Goodwin,  19  Wendell,  252,  256. 
"'No  usage  or  custom,"  says  the  same  judge  in  Hinlon  v.  Locke,  5  Hill, 
437,  "can  be  set  up  for  the  purpose  of  controlling  the  rules  of  law."  In 
Strong  V.  Bliss,  6  Metcalf,  393,  evidence  of  a  custom  among  merchants, 
going  or  sending  to  purchase  goods,  to  pay  for  the  article  purchased,  with- 
out taking  a  delivery  or  seeing  it,  and  that  it  is  considered  a  purchase  when 
paid  for,  was  decided  to  be  inadmissible;  as  it  was  not  of  the  usage  of  any 
particular  place,  or  trade,  or  class  of  dealers,  or  course  of  dealing,  but  of  a 
general  usage  to  control  the  rules  of  law. 

A  custom  or  usage,  to  be  admissible  and  valid,  must  be  certain,  reason- 
able, and  sufficiently  ancient,  to  afford  a  presumption  that  it  is  generally 
known ;  U.  S.  v.  Buchanan,  8  Howard's  S.  Ct.  83, 102.  It  must  be  general 
and  uniform,  but  need  not  be  universally  acquiesced  in;  Desha,  Smith  & 
Co.  V.  Holland,  12  Alabama,  513;  519  ;  Barton  v.  McKelway,  2  Zabriskie, 
165,  175;  See  Maitland  v.  Insurance  Co.  3  Richardson,  331,  333. 

The  usage  of  a  class  or  trade  is  good  evidence  to  ground  an  argument  of 
negligence  in  one  belonging  to  it;  Sampson  and  another  v.  Hand  and 
another,  6  Wharton,  311,324;  or  to  repel  fraud  or  negligence;  Maxwell 
V.  Eason,  1  Stewart  &  Porter,  514;  Cook  v.  Champlain  Transportation 
Company,  1  Denio,  92,  102;  Bradford  v.  Drew,  5  Metcalf,  188;  Cheno- 
with  &  Co.  V.  Dickinson  and  Shrewsberry,  8  B.  Monroe,  156 ;  and  this  is  pro- 
bably the  true  ground  of  Barber  v.  Brace,  3  Connecticut,  9. 

The  custom,  recognized  in  Wigglesworth  v.  Dallison,  has  long  been 
established  as  part  of  the  common  law  of  Pennsylvania : — a  tenant  for  a 
term  certain  is,  unless  there  be  an  exception  in  the  lease,  entitled  to  the 
way-going  crop,  that  is,  the  grain,  hay  and  straw,  sown  the  season  before 
that  in  which  the  lease  expires,  and  coming  to  maturity  after  the  expiration 
of  the  lease.  Iddings  v.  Nagle,  2  Watts  &  Sergeant,  22  ;  Craig  v.  Dale,  1 
id.  509 ;  Forsyth  v.  Price,  8  Watts,  282 ;  Demi  v.  Bossier,  1  Penrose  and 
Watts,  224 ;  dictum  in  Biggs  and  others  v.  Brown,  2  Sergeant  &  llawle, 
14,  16 ;  Stultz  V.  Dickey,  5  Binney,  285 ;  Diffedoffer  and  others  v.  Jones, 
id.  289,  and  2  id.  487.  In  Van  Dorens  v.  Everitt,  2  Southard,  460,  the  same 
custom  is  said  by  C.  J.  Kikkpatrick,  to  be  well  established  in  New  Jersey. 
And  in  Delaware  it  exists  as  to  wheat,  but  not  oats.  Templeman  v.  Biddle, 
1  Harrington,  522.  In  Virginia,  however,  it  has  been  decided,  that  a  local 
custom  that  an  off-going  tenant  shall  have  the  way-going  crop,  after  the  de- 
termination of  a  written  lease  for  a  term  certain,  was  inadmissible,  as  it  is 
in  derogation  of  the  common  law,  and  is  not  immemorial ;  Harris  v.  Carson, 
7  Leigh,  632,  639. 

As  to  the  admissibility  of  usages  in  general,  the  later  cases  show  that  the 
dislike  to  them,  which  seems  always  to  have  characterized  the  ablest  judges 
in  this  country,  is  now  becoming  general.  "I  am  among  those  judges," 
says  Story,  J.,  in  Donnell  et  al.  v.  Columbia  Insurance  Co.,  2  Sumner, 


MOSS    V.     GALLIMORE.  595 

367,  377,  "who  think  usages  among  merchants  should  be  very  sparingly 
adopted,  as  rules  of  court,  by  courts  of  justice,  as  they  are  often  founded  in 
mere  mistake,  and  still  more  often  in  the  want  of  enlarged  and  comprehen- 
sive views  of  the  full  bearing  of  principles." 

H.  B.  W. 


MOSS  V.   GALLIMORE    AND  ANOTHER. 

MICHAELMAS.— 20  Geo.  3. 
[REPORTED   DOUGL.    279.] 

A  mortgagee,  after  giving  notice  of  the  mortgage  to  a  tenant  in  possession, 
under  a  lease  prior  to  the  mortgage,  is  entitled  to  the  rent  in  arrear  at  the  time 
of  the  notice,  as  well  as  to  what  accrues  afterwards,  and  he  may  distrain  for  it 
after  such  notice. 

In  a  notice  for  the  sale  of  a  distress,  it  need  not  be  mentioned  when  the  rent  fell 
due.f 

In  an  action  of  trespass,  which  was  tried  before  Nares,  Justice^  at  the 
last  assizes  for  Staffordshire,  on  not  guilty  pleaded,  a  verdict  was  found  for 
the  plaintiff,  subject  to  the  opinion  of  the  court,  on  a  case  reserved.  The 
case  stated  as  follows  :  One  Harrison  being  seized  in  fee,  on  the  1st  of  Jan- 
uary 1772,  demised  certain  premises  to  the  plaintiff,  for  twenty  years,  at 
the  rent  of  40?.,  payable  yearly  on  the  12th  of  May;  and  in  May,  1772, 
he  mortgaged  the  same  premises,  in  fee,  to  the  defendant  Mrs.  Gallimore. 
Moss  continued  in  possession  from  the  date  of  the  lease,  and  paid  his  rent 
regularly  to  the  mortgagor  all  but  28/.,  which  was  due  on  and  before  the 
month  of  November  1778,  when  the  mortgagor  became  a  bankrupt,  being 
at  the  time  indebted  to  the  mortgagee  in  more  than  that  sum  for  interest  on 
the  mortgage.  On  the  3rd  of  January,  1779,  one  Harwar  went  to  the 
plaintiff,  on  behalf  of  Gallimore,  showed  him  the  mortgage  deed,  and  de- 
manded from  him  the  rent  then  remaining  unpaid.  This  was  the  first 
demand  that  Gallimore  made  of  the  rent.  The  plaintiff  told  Harwar  that 
the  assignee  of  Harrison  had  demanded  it  before,  viz.  on  the  31st  of 
December;  but,  when  Harwar  said  that  Gallimore  would  distrain  for  it  if  it 
was  not  paid,  *he  said,  he  had  some  cattle  to  sell,  and  hoped  she  would  p^fiq-i  -i  -i 
not  distrain  till  they  were  sold,  when  he  would  pay  it.     The  plaintiff  L 

t  A  man  is  not  bound  by  his  notice  of  distress,  Crowther  v.  Rambottom,  7  T.  R.  654, 
per  Lord  Kenyon.  [A  notice  of  distress  must  be  in  writing,  Wilson  v.  Nightingale,  8 
Q.  B.  10.34.] 


596  smith's   leading    cases. 

not  baviug  paid  according  to  this  undertaking,  the  other  defendant,  by  order 
of  Gallimore,  entered,  distrained  for  the  rent,  and  thereupon  gave  a  written 
notice  of  such  distress  to  the  plaintiflf,  in  the  following  words  :  "  Take 
notice,  that  I  have  this  day  seized  and  distrained,  &c.,  by  virtue  of  an 
authority,  &c.,  for  the  sum  of  2SL,  being  rent  and  arrears  of  rent,  due  to  the 
said  Esther  Gallimore,  at  Michaelmas  last  past,  for,  &c.,  and  unless  you  pay 
the  said  rent,  &c."  He  accordingly  sold  cattle  and  goods  to  the  amount  of 
221.  2s.  The  question  stated  for  the  opinion  of  the  court  was,  whether, 
under  all  the  circumstances,  the  distress  could  be  justified? 

Wood  for  the  plaintiff.     Boiccr  for  the  defendants. 

Wood. — The  plaintiff's  case  rests  upon  two  grounds:  1st,  The  defendant, 
Gallimore,  not  being,  at  the  time  when  the  rent  distrained  for  became  due, 
in  the  actual  seisin  of  the  premises,  nor  in  the  receipt  of  the  rents  and  pro- 
fits, she  bad  no  right  to  distrain.  2nd.  The  notice  was  irregular,  being  for 
rent  due  at  Michaelmas,  whereas  this  rent  was  only  due,  and  payable,  in 
May. — 1.  Before  the  statute  of  4  Anne,  c.  16,(n)  a  conveyance  by  the  re- 
versioner was  void  without  the  attornment  of  the  tenant,(t)  which  was  neces- 
sary to  supply  the  place  of  livery  of  seisin.  Since  that  statute  I  admit  that 
attornment  is  no  longer  necessary  to  give  effect  to  the  deed ;  but  it  does  not 
follow  from  thence,  that  a  grantee  has  now  a  right  to  distrain,  before  he 
turns  his  title  into  actual  possession.  The  mortgagor  (according  to  a  late 
case)(c)  is  tenant  at  will  to  a  mortgagee,  and  has  a  right  to  the  rents  and 
profits  due  before  his  will  is  determined.  Nothing,  in  this  case,  can  amount 
to  a  determination  of  the  will,  before  the  demand  of  the  rent  on  behalf  of 
the  mortgagee,  and  the  whole  of  that  for  which  the  distress  was  made  became 
due  before  the  demand.  If  the  mortgagor  himself  had  been  in  possession, 
he  could  not  have  been  turned  out  by  force;  the  mortgagee  must  have 
brought  an  ejectment.  The  assignees  had  called  upon  the  plaintiff  for  the 
rent,  as  well  as  Gallimore,  and  how  could  he  take  upon  himself  to  decide 
between  them  ?  The  mortgagee  should  have  brought  an  ejectment,  when 
any  objection  there  might  have  been  to  the  title  could  have  been  discussed. 
r*R191  ^^  ^^®^  ^""^^  appear,  from  the  case,  that  *the  interest  in  arrear  had 
L  -J  ever  been  demanded  of  the  mortgagor,  and  there  is  a  tacit  agreement 
that  the  mortgagor  shall  continue  in  possession  and  receive  the  rents  till 
default  is  made  in  paying  the  interest.  2.  The  notice  is  irregular,  and,  on 
that  account,  the  distress  cannot  be  justified.  By  the  common  law,  the 
goods  could  not  be  sold.  The  power  to  sell  was  introduced  by  the  statute 
of  William  and  Mary  ;(<;?)  but  it  is  thereby  required  that  notice  shall  be 
given  thereof,  "  with  the  cause  of  taking,"  &c.  These  requisites  are  in  the 
nature  of  conditions  precedent,  and,  if  not  complied  with,  the  proceedings 
are  illegal.  It  is  true,  this  irregularity,  since  the  statute  of  11  Geo.  2,(e) 
does  not  make  the  defendants  trespassers  ab  initio,  but  the  action  of  trespass 
is  still  left  by  that  statute,  for  special  damages  incurred  in  consequence  of 
the  irregularity. •[■ 

Lord  Mansfield  observed,  that  the  plaintiff  was   precluded  by  the  case 

(a)  Sect.  9.  {b)  Co.  Lift.  309,  a.  b. 

(r)  Keech  v.  Hall,  M.  19  Geo.  3,  ante,  p.  293. 
(d)  2  VV.  &  M.  Sess.  1,  c.  5,  s.  2.  (e)  Cap.  19,  s.  19. 

t  See  on  this  point,  ante,  p.  66. 


MOSS    V.     GALLIMORE.  597 

from  going  for  special  damages  arising  from  any  supposed  irregularity  in 
the  sale,  no  such  special  damages  being  found,  and  the  question  stated  being 
only,  whether  the  distress  was  justifiable :  and  Buller,  Justice,  said,  that  it 
was  not  necessary,  by  the  statute  of  AVilliam  and  Mary,  to  set  forth,  in  the 
notice,  at  what  time  the  rent  became  due. 

Bower. — If  the  law  of  attornment  remained  still  the  same  as  it  was  at 
common  law,  the  conversation  stated  to  have  taken  place  between  the  plain- 
tiff and  Harwar  would  amount  to  an  attornment;  and,  when  there  has  been 
an  attornment,  its  operation  is  not  restrained  to  the  time  when  it  was  made : 
it  relates  back  to  the  time  of  the  conveyance,  and  makes  part  of  the  same 
title ;  like  a  feoffment  and  livery,  or  a  fine  or  recovery  and  the  deed  declar- 
ing the  uses;  Long  v.  Hemming. (a)    Now,  however,  any  doubts  there  might 
have  been  on  this  subject  are  entirely  removed  by  the  statute  of  Queen 
Anne,  the  words  of  which  are  very  explicit,  viz.  :(5)  "  that  all  grants  or 
conveyances  of  any  manors,  rents,  reversions,  or  remainders,  shall  be  as 
good  and  effectual  to  all  intents  and  purposes,  without  any  attornment  of 
the  tenants,  as  if  their  attornment  had  been  had  and  made.''     The  proviso 
in  the  same  statute(c)  which  says,  that  the  tenant  shall  not  be  prejudiced 
by  the  payment  of  any  rent  to  the  grantor  before  he  shall  have  received 
notice  of.  the  grant,  shews,  that  it  was  meant  that  all  the  rent  which  had 
not  been  paid  at  the  time  of  the  notice  should  be  payable  to  the  grantee. 
The  mortgagor  is  called  a  tenant  at  will  to  *the  mortgagee.     That    ^^oio  i 
may  be  true  in  some  respects,  but  it  is  more  correct  to  consider  him  L 
as  acting  for  the  mortgagee  in  the  receipt  of  the  rents  as  a  trustee,  subject 
to  have  his  authority  for  that  purpose  put  an  end  to,  at  whatever  time  the 
mortgagee  pleases.    It  is  said,  the  proper  method  for  the  mortgagee  to  have 
followed  would  have  been  to  have  brought  an  ejectment,  but  it  is  only  a 
very  late  practice   to  allow  a  mortgagee  to  get  into  the  possession  of  the 
rents,  by  an  ejectment  against  a  tenant  under  a  lease  prior  to  the  mort- 
gage.(<?]     The  interest  it  is  said,  is  not  stated  to  have  been  demanded;  but 
the  case  states,  that,  at  the  time  of  the  notice  and  distress,  more  than  the 
amount  of  the  rent  in  arrear  was  due.     It  is  said,  the  tenant  could  not 
decide  between  the  mortgagor  (or,  which  is  the  same  thing,  his  assignees) 
and  the  mortgagee ;  but  that  is  no  excuse.     He  would  have  had  the  same 
difficulty  in  the  case  of  an  absolute  sale ;  a  mortgage  in  fee  being,  at  law,  a 
complete  sale,  and  only  differing  from  it  in  respect  of  the  equity  of  redemp- 
tion, which  is  a  mere  equitable  interest. 

The  court  told  him  it  was  unnecessary  for  him  to  say  any  thing  on  the 
other  point. 

Lord  Mansfield. — I  think  this  case,  in  its  consequences,  very  material. 
It  is  the  case  of  lands  let  for  years  and  afterwards  mortgaged,  and  consider- 
able doubts,  in  such  cases,  have  arisen  in  respect  to  the  mortgagee  when  the 
tenant  colludes  with  the  mortgagor ;  for,  the  lease  protecting  the  possession 
of  such  a  tenant,  he  cannot  be  turned  out  by  the  mortgagee.  Oflateyears  the 
courts  have  (jone  so  far  as  to  permit  the  mortgagee  to  proceed  by  ejectment,  if 
he  has  given  notice  to  the  tenant  that  he  does  not  intend  to  disturb  hisj^osses- 

(«)  1   Anders.  25G.     Vide  S.  C.  Cm.  El.  209.  (b)  4  Anne,  cap.  16,  s.  9, 

(,c)  Sec.  10.  ((/)  White  v.  Hawkins,  M.  19  Geo.  3,  ante,  p.  295. 


598  smith's    leading  cases. 

sion,  Litt  only  requires  the  rent  to  he  paid  to  him,  and  not  the  mortgagor.'^ 
This,  however,  is  entangled  with  diificulties.  The  question  here  is,  whether 
the  mortgagee  was  or  was  not  entitled  to  the  rent  in  arrear.  Before  the 
statute  of  Queen  Anne  attornment  was  necessary,  on  the  principle  of  notice 
to  the  tenant  J  but,  when  it  took  place,  it  certainly  had  relation  back  to  the 
grant,  and,  like  other  relative  acts,  they  were  to  be  taken  together.  Thus, 
livery  of  seisin,  though  made  afterwards,  relates  to  the  time  of  the  feoft- 
ment.  Since  the  statute,  the  conveyance  is  complete  without  attornment; 
hut  there  is  a  provision,  that  the  tenant  shall  not  he  prejudiced  for  any  act 
#01/11  ^'^'^^^  ^y  ^^ii^  tis  holding  under  the  ^grantor,  till  lie  has  had  notice  of 
L  J  the  deed.  Therefore,  the  payment  of  tent  hefore  such  notice  is  good. 
With  this  protection,  he  is  to  be  considered,  by  force  of  the  statute,  as 
having  attorned  at  the  time  of  the  execution  of  the  grant ;  and,  here,  the 
tenant  has  suffered  no  injury.  No  rent  has  been  demanded  which  was  paid 
before  he  knew  of  the  mortgage.  He  had  the  rent  in  question  still  in  his 
hands,  and  was  bound  to  pay  it  according  to  the  legal  title.  But  having 
notice  from  the  assignees,  and  also  from  the  mortgagee,  he  dares  to  prefer 
the  former,  or  keeps  both  parties  at  arm's  length.  In  the  case  of  executions 
it  is  uniformly  held,  that  if  you  act  after  notice,  you  do  it  at  your  peril. 
He  did  not  offer  to  pay  one  of  the  parties  on  receiving  an  indemnity.  As 
between  the  assignees  and  the  mortgagee,  let  us  see  who  is  entitled  to  the 
rent.  The  assignees  stand  exactly  in  the  place  of  the  bankrupt.  Now,  a 
mortgagor  is  not  properly  tenant  at  will  to  the  mortgagee,  for  he  is  not  to 
pay  him  rent.  He  is  only  quodam  modo.  Nothing  is  more  apt  to  confound 
than  a  simile.  When  the  court,  or  counsel,  call  a  mortgagor  a  tenant  at 
will,  it  is  barely  a  comparison.  He  is  like  a  tenant  at  will.  The  mortgagor 
receives  the  rent  by  a  tacit  agreement  with  the  mortgagee,  but  the  mort- 
gagee may  put  an  end  to  this  agreement  when  he  pleases.  He  has  the 
legal  title  to  the  rent,  and  the  tenant  in  the  present  case  cannot  be  damni- 
fied, for  the  mortgagor  can  never  oblige  him  to  pay  over  again  the  rent 
which  has  been  levied  by  this  distress.  I  therefore  think  the  distress  well 
justified;  and  I  consider  this  remedy  as  a  very  proper  additional  advan- 
tage to  mortgagees,  to  prevent  collusion  between  the. tenant  and  the  mort- 
gagor. 

Ashiirst,  Justice, — The  statute  of  Queen  Anne  has  rendered  attornment 
unnecessary  in  all  cases,  and  the  only  question  here  arises  upon  the  circum- 
stance of  the  notice  of  the  mortgage  not  having  been  given  till  after  the  rent 
distrained  for  became  due.  Where  the  mortgagor  is  himself  the  occupier 
of  the  estate,  he  may  be  considered  as  tenant  at  will;  but  he  cannot  be  so 
considered  if  there  is  an  under-tenant ;  for  there  can  be  no  such  thing  as  an 
under-tenant  to  a  tenant  at  will.  The  demise  itself  would  amount  to  a  de- 
termination of  the  will.     There  being  in  this  case  a  tenant  in  possession,  the 

„-.  f.-.  mortgagor  is,  therefore,  only  a  receiver  of  the  rent  for  the  mortgagee, 
L  -'  who  may,  at  *any  time,  countermand  the  implied  authority,  by 
giving  notice  not  to  pay  the  rent  to  him  any  longer. 

Bullcr,  Justice. — There  is  in  this  case  a  plea  of  the  general  issue,  which 
is  given  by  statute, («)  but  if  the  justification  appeared  upon  the  record  in 

t  But  this  is  at  present  never  permilted.     See  ante,  p.  295, 
(«)  11  Geo.  2,0.  1L»,  s.  21. 


I 


MOSS    V.    G  A  L  L  I  M  0  R  E. 


599 


a  special  plea,  the  distress  must  be  held  to  be  legal.  Before  the  act  of 
Queen  Anne,  in  a  special  justification,  attornment  must  have  been  pleaded ; 
but  since  that  statute  it  is  never  averred  in  a  declaration  in  covenant,  nor 
pleaded  in  an  avowry.  In  the  case  of  Keech  v.  Hall,  referred  to  by  Mr. 
Wood,  the  court  did  not  consider  the  mortgagor  as  tenant  at  Avill  to  all  pur- 
poses. If  my  memory  do  not  fail  me,  my  Lord  distinguished  mortgagors 
from  tenants  at  will  in  a  very  material  circumstance,  namely,  that  a  mort- 
gagor would  not  be  entitled  to  emblements.  Expressions  used  in  particular 
cases  are  to  be  understood  loith  relation  to  the  subject-matter  then  before  the 
court. 

The  postea  to  be  delivered  to  the  defendants. 


Moss  V.  Gallimore  is  the  leading'  case 
upon  a  point  which  seems  so  clear  in 
principle  that,  were  it  not  for  its  very 
general  importance,  it  would  be  perhaps 
a  matter  of  some  surprise  that  any  case 
should  have  been  requisite  to  establish  it. 
The  mortgagor  having  conveyed  his  es- 
tate to  the  mortgagee,  the  tenants  of  the 
former  become  of  course  the  tenants  of 
the  latter,  the  necessity  for  their  attorn- 
ment being  done  away  with  by  the  sta- 
tute of  Anne,  which,  though  it  provides 
that  they  shall  not  be  prejudiced  by  the 
abolition  of  attornment,  and  consequently 
renders  valid  any  payments  they  may 
have  made  to  the  mortgagor  without  no- 
tice of  the  mortgage,  nevertheless  places 
the  mortgagee  in  the  situation  of  the 
mortgagor,  immediately  upon  the  execu- 
tion of  the  mortgage-deed,  subject  only 
to  that  proviso  in  favour  of  the  tenants; 
and  enables  him,  by  giving  notice  to 
them  of  the  conveyance,  to  place  himself 
to  every  intent  in  the  same  situation  to- 
wards them  as  the  mortgagor  previously 
occupied.  [Rawson  v.  Eicke,  7  A.  &  E. 
451 ;  Burrowes  v.  Gradin,  1  Dowl.  &  L. 
213.]  Such  being  the  situation  of  the 
tenant  with  respect  to  the  mortgagee, 
it  would  of  course  be  unfair  that  he 
should  not  be  proportionably  exonerated 
from  his  liabilities  to  the  mortgagor; 
therefore,  where  a  lessor,  after  the  exe- 
cution of  the  lease,  mortgaged  the  pre- 
mises, it  was  held  that  he  could  not  after- 
wards maintain  ejectment  for  a  forfeit- 
ure. Doe  dem.  Marriott  v.  Edwards,  5 
B.  .t  Adol.  1005. 

iSuch  being  the  situation  of  a  tejiant 
who  comes  in  under  the  mortgagor  be- 
fore the  mortgage  ;  let  us  now  examine 
a  subject  which  seems  to  involve  more 
difRcully,  namely,  that  of  a  tenant  who 


has  entered  under  the  mortgagor  subse- 
quently to  the  mortgage ;  for  it  was  once 
alleged,  that  though  a  tenant  who  had 
entered  previous  to  the  mortgage  be- 
came the  tenant  of  the  mortgagee  after 
the  mortgage,  and  might,  if  any  proceed- 
ings were  afterwards  instituted  against 
him  by  the  mortgagor,  show  that,  al- 
though that  person  was  once  his  land- 
lord, he  had  now  conveyed  away  his  es- 
tate in  the  premises;  (according  to  the 
ordinary  rule  of  law,  that  a  tenant, 
though  he  cannot  dispute  the  title  of  the 
landlord  under  whom  he  entered,  may 
confess  and  avoid  it  by  ^showing  r^oic-i 
that  it  has  now  determined  ;  see  '-  -' 
Doe  dem.  Marriott  v.  Edwards  above 
cited  ;)  still  that  a  tenant  who  had  en- 
tered since  the  mortgage  was  differently 
situated,  for  that  he  was  estopped  from 
disputing  the  title  of  the  mortgagor,  and 
could  not  confess  and  avoid  it,  inasmuch 
as  it  had  never  really  existed  during  the 
period  of  his  possession  ;  and  this  idea 
derived  a  good  deal  of  countenance  from 
the  decision  of  the  Court  of  Common 
Pleas,  in  Alchorne  v.  Gomme,  2  Bing. 
54.  However,  the  subject  was  after- 
wards fully  discussed  in  Pope  v.  Biggs, 
9  B.  &  C,  245.  In  that  case  Garbet,  be- 
ing the  owner  of  six  houses,  mortgaged 
them  to  various  persons;  and,  after  the 
mortgage,  let  to  several  persons.  Biggs, 
the  defendant,  was  tenant  of  one  of  the 
houses,  and  received  the  rents  of  the 
others  as  agent  for  Garbet,  who  became 
bankrupt ;  and  thereupon  the  mortgagees 
gave  notice  to  the  tenants  of  the  houses 
that  the  interest  was  in  arrear,  and  re- 
quired them  to  pay  the  amount  of  the 
interest,  in  part  of  rent,  and  similar  sums 
out  of  future  rents,  until  further  notice. 
At  this  time  there  was   rent   in  arrear. 


600 


smith's   leading    cases. 


and  oilier  rents  subsequently  became 
due  :  these  were  received  by  the  dcl'end- 
ant,  and  applied  by  him  to  the  interest 
due  on  the  niortg-agc,  with  the  exception 
of  a  sum  which  would  not  bo  sufficient 
to  meet  the  next  half-year's  interest.  To 
recover  these  moneys,  an  action  was 
brought  against  the  defendant  Biggs,  by 
the  assignees  of  Garbet;  but  the  court 
held  that  they  were  not  entitled  to  reco- 
ver. "  I  have  no  doubt,"  said  Bayley,  J., 
"that,  in  point  of  law,  a  tenant  who 
comes  into  possession  under  a  demise, 
from  a  mortgagor,  after  a  mortgage  exe- 
cuted by  Jiim,  may  consider  the  mortga- 
gor his  landlord,  so  long  as  the  mort- 
gagee allows  the  mortgagor  to  continue 
in  possession  and  receive  the  rents,  and 
that  payment  of  the  rents  by  the  tenant 
to  the  mortgagor,  witliout  any  notice  of 
the  mortgage,  is  a  valid  payment.  Bui  the 
mortgagee,  ly  giving  notice  of  the  mort- 
gage to  the  tenant,  may  thereby  make 
him  his  tenant,  and  entitle  himself  to 
receive  the  rents.''''  "  The  mortgagor," 
said  Parke,  J.,  "  may  be  considered  as 
acting  in  the  nature  of  a  bailiff  or  agent 
for  the  mortgagee.  His  receipt  of  rent 
will,  therefore,  be  good  until  the  mort- 
gagee interferes,  and  he  may  recover  on 
the  contracts  he  has  himself  entered  into 
in  his  own  name  with  the  tenants.  But 
where  the  mortgagee  determines  the 
implied  authority  by  a  notice  to  the  ten- 
ants to  pay  their  rents  to  him,  the  mort- 
gagor can  no  longer  receive  or  recover 
any  unpaid  rent,  whether  already  due  or 
no."  And  in  Waddilove  v.  Barnett,  4 
Dowl.  348,  the  law  on  this  point  was 
considered  so  completely  settled,  that,  as 
remarked  by  Tindal,  C.  J.,  it  was  not 
even  attempted  to  argue  that  the  tenant 
was  estopped  from  showing  that  the 
mortgagor's  right  has  been  determined 
by  a  notice. 

The  view  taken  by  Parke,  J.,  in  Pope 
V.  Biggs,  in  which  the  mortgagor  is 
treated  as  the  mortgagee's  agent,  if  he 
think  fit  to  adopt  him  as  such,  seemed 
to  be  in  accordance  with  a  decision  of 
the  Court  of  Common  Pleas  in  a  case  not 
arising,  it  is  true,  between  mortgagor 
and  mortgagee,  but  between  trustee  and 
cestui  que  trust.  Vallance  v.  Savage, 
7  Bing.  595,  was  an  action  on  the  case 
by  John  Vallance  for  an  injury  to  his  re- 
version by  obstructing  a  highway  lead- 
ing to  a  dwelling-house  which  the  decla- 
ration alleged  to  be  in  the  occupation  of 
Sarah  Pell,  us  tenant  to  the  plaintiff. 
The  evidence  was,  that  John  Vallance, 


the  plaintiff,  was  a  trustee;  tliat  one 
James  Vallance  was  his  cestui  que  trust, 
and  had  let  the  premises  in  question  to 
Sarah  Pell,  from  whom  he  received  the 
rent.  It  was  objected  that  Sarah  Pell 
was  not  tenant  to  the  plaintiff,  but  to 
James  Vallance ;  and,  consequently,  that 
the  plaintiff  had  not  the  reversionary 
interest  set  forth  in  the  declaration.  But 
the  court  held  that  the  plaintiff  had  a 
right  to  adopt,  and  had  adopted,  Sarah 
Pell  as  his  tenant.  "  In  the  present  case," 
said  Tindal,  C.  J.,  "  inasmuch  as  the 
plaintiff  has  brought  an  action,  and  has 
alleged  that  Pell  was  a  tenant  to  him, 
that  is  a  sufficient  adoption  of  her  as 
tenant,  and  there  is  no  failure  in  the 
proof  of  the  allegation  on  record.  Even 
in  the  case  of  mortgagor  and  mortgagee, 
whose  interests  are  adverse,  acts  of  the 
mortgagor  assented  to  by  the  mortgagee 
are  considered  as  acts  of  the  mortgagee. 
By  the  stronger  reason,  *then,  ^^017-1 
the  act  of  the  cestui  que  trust,  L  J 
whose  interest  is  under  the  trustee,  must, 
if  known,  and  not  repudiated,  be  consi- 
dered the  act  of  the  trustee."  See  Meg- 
ginson  v.  Harper,  4  Tyrwh.  100.  [Bur- 
rowes  V.  Gradin,  1  Dowl.  &  L.  213, 
Wightman,  J.]  The  doctrine  thus  pro- 
mulgated in  Pope  V.  Biggs  was,  however, 
shaken  by  Partington  v.  Woodcock,  5  N. 
&  M.  672,  and  6  Ad.  &  Ell.  G90,  where 
Patteson,  J.,  adverting  to  the  expres- 
sions of  Bayley,  J.,  above  cited,  says,  "  I 
never  could  understand  how  the  notice 
of  the  mortgagee  could  make  the  lessee 
tenant  to  him  at  the  reserved  rent." 
Very  strong  expressions  to  the  same  ef- 
fect were  also  used  in  Rogers  v.  Hum- 
phreys, 4  A.  &  E,  313.  And  at  length 
in  Evans  v.  Elliot,  9  Ad.  &  Ell.  342,  it 
was  expressly  decided  by  the  Court  of 
Queen's  Bench,  that  the  mortgagee  can- 
not by  the  mere  fact  of  giving  the 
mortgagor's  tenant  a  notice  cause  him 
to  hold  of  himself  the  mortgagee,  and 
that  even  a  subsequent  attornment  by 
the  tenant  to  the  mortgagee  ivill  not 
have  the  effect  of  setting  up  his  title  as 
landlord  by  relation.  The  result  of  this 
decision  and  of  that  of  the  Court  of  C.  F. 
in  Brown  v.  Storey,  1  Scott,  i\.  C.  91  ;  1 
M.  &  G.  117,  seems  to  be  that,  in  order 
to  create  a  tenancy  between  the  mort- 
gagee and  the  tenant  let  into  possession 
by  the  mortgagor,  tiiere  must  be  some 
evidence  whence  it  may  be  inferred  that 
such  relation  has  been  raised  by  mutual 
agreement,  and  that  in  such  case  the 
terms  of  the  tenancy  are  to  be   ascer- 


MOSS    V.     G  A  L  L  I  xM  0  R  E. 


601 


tainetl  (as  in  an  ordinarj^  case)  from  the 
same  evidence  which  proves  its  exist- 
ence. But  that  it  does  not  lie  in  the 
power  of  the  mortgagee  by  a  mere  no- 
tice to  cause  the  tenant  in  possession  to 
hold  under  him  on  the  same  terms  on 
which  he  held  under  the  mortgagor — or 
r  :jcoi~  -1  indeed  *upon  any  terms  at  all 
'-  -I  without  his  own  consent.    And 

that  where  the  tenant  does  consent  to 
hold  under  the  mortgagee,  a  new  ten- 
ancy is  created,  not  a  continuation  of  the 
old  one  between  him  and  the  mortgagor. 
In  Erovvn  v.  Storey,  indeed,  the  Court  of 
Common  Pleas  expressed  an  opinion 
that,  if  the  mortgagor's  tenant,  after  re- 
ceiving notice  from  the  mortgagee  to 
pay  rent  to  him,  continued  in  possession, 
it  might  fairly  be  interred  that  he  as- 
sented to  continue  as  tenant  to  the  mort- 
gagee upon  the  old  terms. 

[It  would  seem  that  the  cases  on  this 
subject  might  be  reconciled  to  ordinary 
principles  without  straining  after  any 
peculiar  rule  applicable  to  the  case  of 
mortgagor  and  mortgagee,  by  observing 
that  a  tenant  of  the  mortgagor,  whose 
tenancy  has  commenced  since  the  mort- 
gage, may  in  case  of  an  eviction  by  the 
mortgagee  either  actual  or  constructive, 
(for  instance,  an  attornment  to  him  un- 
der threat  of  eviction,  see  Doe  d.  Higgin- 
botham  v.  Barton,  11  A.  &  E.  314; 
Mayor  of  Poole  v.  Whitt,  1.5  M.  &  W. 
571,)  dispute  the  mortgagor's  title  to 
either  the  land  or  the  rent,  (which  is  no 
more  than  any  tenant  may  do  upon  an 
eviction  by  title  paramount ;)  and  fur- 
ther, that  he  may,  although  there  have 
been  no  eviction,  defend  an  action  for 
rent  by  proof  of  payment  under  con- 
straint of  as  much  in  discharge  of  the 
mortgagee's  claim,  Johnson  v.  Jones.  9 
Ad.  (Si  El.  809,  (which  right  is  analogous 
to  that  of  an  ordinary  tenant  in  respect 
of  payments  on  account  of  rent-charges, 
and  other  claims  issuing  out  of  the  land, 
of  which  examples  are  cited  in  the  note 
to  Lampleigh  v.  Braithwaite,  ante;)  so 
that  a  tenant  who  has  come  in  under  the 
mortgagor  after  the  mortgage,  and  has 
neither  paid  the  rent  to  the  mortgagee, 
nor  been  evicted  by  him  either  actually 
or  constructively  before  the  day  of  pay- 
ment, cannot  defend  an  action  by  the 
mortgagor  for  the  rent.  Wheeler  v. 
Branscombe,  5  Q.  B.  373. 

In  Burrowes  v.  Gradin,  1  Dowl.  &  L. 
213,  (which  may  be  considered  a  middle 
case,)  Wightman,  J.,  held,  that  an  agree- 
ment  between    the   mortgagor,   and   a 


tenant  from  year  to  year  whose  tenancy 
commenced  before  the  mortgage,  for 
payment  of  an  additional  annual  sum  as 
rent,  in  consideration  of  improvements 
made  by  the  mortgagor,  had  not  the 
effect  of  so  changing  the  situation  of  the 
parties,  that  the  tenant  could  be  consi- 
dered as  no  longer  holding  of  the  mort- 
gagee ;  and  further,  that  the  mortgagee 
might  adopt  the  dealing  of  the  mortga- 
gor as  his  agent,  and  (after  notice  of 
the  mortgage)  recover  not  merely  the 
amount  of  rent  originally  payable,  but 
the  additional  sum  also,  whicli,  in  con- 
sequence of  the  improvement  of  the 
land,  the  tenant  agreed  to  pay ;  a  re- 
markable decision,  so  far  as  relates  to 
the  additional  sum  agreed  to  be  paid, 
because  it  appears  from  Donellan  v. 
Read,  3  B.  &  Ad.  899;  *and  r^^..l-.;^ 
Lambert  v.  Norris,  2  M.  &  W.  L  '^^  '"J 
334,  that  that  sum  was  not  rent  pro- 
perly so  called,  but  a  sum  in  gross,  for 
which  an  assignee  of  the  reversion  could 
not  sue,  nor  could  an  assignee  of  the 
term  be  sued.  The  reasoning  of  Wight- 
man,  J.,  though  expressly  limited  to  the 
peculiar  circumstances  of  the  case,  and 
especially  founded  on  that  of  the  tenancy 
having  existed  at  the  time  of  the  mort- 
gage, tends  in  some  degree  to  confirm 
tlie  conclusions  drawn  from  Pope  v. 
Biggs.] 

As  the  mortgagor  ceases  to  be  entitled 
to  the  rents  upon  the  mortgagee's  giving 
the  tenant  notice,  it  follows  that  the 
mortgagor  cannot  afterwards  maintain 
any  action  for  use  and  occupation  against 
him,  either  for  rent  which  accrued  due 
after  notice,  or  for  rent  which  accrued 
due  before  the  notice  but  was  unpaid  at 
the  time  when  the  notice  was  given. 
But  there  is  a  difference  between  the 
modes  in  which  the  tenant  must  plead 
in  the  former  and  in  the  latter  case.  In 
the  former  case  he  should  plead  non 
assumpsit,  and  will  be  allowed  to  give 
the  mortgage  and  notice  in  evidence,  for 
"  when  the  mortgagee  gave  notice  that 
the  future  rent  was  to  be  paid  to  liim,  it 
follows  that  the  defendant  ceased  to 
occupy  by  the  permission  of  the  mort- 
gagor, but  by  the  permission  of  the  mort- 
gagee :"  and,  of  course,  such  a  defence 
amounts  to  a  denial  of  the  contract  alleg- 
ed in  the  declaration,  which  avers  the 
defendant  to  have  used  and  occupied  the 
land  by  the  permission  of  the  plaintiff, 
the  mortgagor.  But  in  the  latter  case, 
viz.,  where  the  rent  became  due  before 
notice,  but  was  unpaid  at  the  time  of 


602 


SMITH'S    LEADING     CASES. 


notice,  the  tenant  must  plead  his  defence 
specially,  for  "  the  mortgagor  had  a  right 
of  action  against  the  defendant  up  to  the 
time  when  the  notice  was  given,  and 
before  the  mortgagee  required  the  rent 
to  be  paid  to  him;"  so  that  the  tenant, 
by  setting  up  this  defence,  confesses  that 
the  right  of  action,  stated  in  tiie  declara- 
tion, once  existed,  but  avoids  it  by  matter 
ex  post  facto,  viz.,  by  the  subsequent 
notice  from  the  mortgagee.  Waddeiove 
V.  Barnett,  4  Dowl.  P.  C.  347 ;  2  Bing. 
N.  C.  53S. 

I  will  conclude  this  note  by  taking 
notice  of  a  case  which  sometimes  occurs  ; 
viz.,  that  of  a  lease  purporting  to  be  by 
mortgagor  and  mortgagee  jointly:  such 
an  instrument  operates  as  a  lease  by  the 
mortgagee,  witii  a  confirmation  by  the 
mortgagor,  until  the  estate  of  the  former 
has  been  determined  by  paying  off  the 
mortgage-money,  and  then  it  becomes 
the  lease  of  the  mortgagor,  and  the  con- 
firmation of  the  mortgagee;  and  it 
follows  that,  if  ejectment  be  brought 
against  the  tenant  during  the  mortga- 
gee's estate,  the  demise  must  be  laid  in 
the  name  of  the  mortgagee ;  if  after- 
wards, in  that  of  the  mortgagor;  but  a 
joint  demise  laid  in  the  declaration 
r*'^i7  1  would  *be  improper.  Doe  dem. 
1-  '^^''^-l     Barney   v.    Adams,  2  Tyrwh. 


289.  See  Doe  dem.  Barker  v.  Gold- 
smith, ibid.  710.  When  a  mortgagor 
and  mortgagee  join  in  a  lease,  and  the 
covenants  to  pay  rent  and  repair  are 
witli  the  mortgagor  and  his  assigns  only, 
the  mortgagee  cannot  sue  on  those  cove- 
nants, because  collateral  to  his  interest 
in  the  land,  Webb  v.  Russell,  3  T.  R. 
393,  though  the  mortgagor  might  sue  on 
tiiem  as  covenants  in  gross,  iStokes  v. 
Russell,  3  T.  R.  078;  1  H.  Bl.  562. 
Where  the  mortgagor  and  mortgagee 
join  in  a  lease,  containing  an  express 
covenant  by  the  mortgagor  for  quiet  en- 
joyment, no  covenant  from  both  can  be 
implied.  Smith  v.  Pilkington,  1  Tvrwli. 
313.  [In  Harold  v.  Whitaker,  Q.  B.  29 
May,  1846,  15  L.  J.  345,  in  a  lease  by 
the  mortgagor  and  mortgagee  which  re- 
cited the  mortgage,  the  reddendum  was 
to  the  mortgagee,  his  executors,  &c., 
during  the  continuance  of  the  mortgage, 
and  after  payment  and  satisfaction  there- 
of, to  the  mortgagor  or  his  executors, 
&c.,  and  the  lessee  covenanted  to  and 
with  the  mortgagee,  and  also  to  and 
with  the  mortgagor  to  pay  the  rent  "on 
the  several  days  and  times,  and  in  n)an- 
ner  as  the  same  was  reserved  and  made 
payable."  The  covenant  was  holden  to 
be  several.] 


When  a  lease  has  been  made  prior  to  a  mortgage,  the  latter  amounts 
under  the  common  law,  to  an  immediate  grant  of  the  reversion.  No  doubt, 
therefore,  can  be  entertained,  that  upon  the  attornment  of  the  tenant,  or 
without  such  attornment,  where  the  conveyance  is  under  the  statute  of  uses, 
or  the  statute  of  Anne,  dispensing  with  attornment  is  in  force,  the  mort- 
gagee will  be  entitled  to  all  the  remedies  for  the  recovery  of  the  rent,  which 
belong  to  other  assignees  of  reversions.  This  doctrine,  which  is  well  settled 
on  principle,  has  been  generally  recognized  in  the  United  States.  Burden  v. 
Thayer,  3  Metcalf,  79;  4  Kent.  Com.  165.  Coker  v.  Pearsall,  6  Alabama, 
342  ;  Snlith  v.  Taylor,  9  Id.  633.  And  where  the  right  of  the  mortgagee  is 
restrained  by  statute,  until  the  forfeiture  of  the  condition,  he  may  exercise  it 
immediately  afterwards,  and  proceed  to  compel  immediate  payment  of  the  rent 
from  the  tenant;  Babcock  v.  Kennedy,  1  Vermont,  457.  When,  however,  the 
lease  is  subsequent  to  the  mortgage,  as  no  reversion  vests  in  the  mortgagee, 
and  no  privity  of  estate  or  contract  is  created  between  him  and  the  lessee,  he 
cannot  proceed  either  by  distress  or  action  for  the  recovery  of  the  rent.  Mayo 
V.  Shattuck,  14  Pick.  533.  Watts  v.  Coffin,  11  Johnson,  495.  McKircher  v. 
Hawley,  16  Id.  290.  But  although  the  mortgagee  cannot  recover  the  rent  as 
such  under  these  circumstances,  he  may,  notwithstanding,  recover  possession 


MOSS    V.    G  A  L  L  I  M  0  R  E.  603 

of  the  mortgaged  premises  by  entry  or  ejectment;  Keech  v.  Hall,  (supra,) 
The  Northampton  Paper  Mills  v.  Ames,  8  Metcalf,  1 ;  Jones  v.  Thomas,  8 
Blackford,  428  ;  and  thus  either  compel  the  tenant  to  withdraw  altogether, 
or  to  remain  on  the  terms  of  paying  the  rent  to  him  and  not  to  the  mortgagor. 
So  far,  the  mortgagee  stands  on  the  same  footing  with  a  grantee  claiming  under 
an  absolute  conveyance.  It  has,  notwithstanding  been  held,  that  until  a 
demand  is  made  by  the  mortgagee,  the  existence  of  the  mortgage  does  not 
entitle  him  to  the  rent,  or  justify  a  refusal  to  pay  it  to  the  mortgagor,  and 
that  payments  made  to  the  one  before  such  demand,  will  be  a  good  answer 
to  an  action  brought  by  the  other.  Weidner  v.  Foster,  2  Penna.  R.  23  j 
Myers  v.  White,  1  Rawle,  355;  The  Mass.  L.  Ins.  Co.  v.  Wilson,  10  Met- 
calf; Coker  V.  Pearsall ;  Burden  v.  Thayer ;  Smith  v.  Taylor.  This  is  well 
settled  when  the  suit  is  brought  by  the  mortgagee  as  assignee  of  the  rever- 
sion, on  a  lease  paramount  to  the  mortgage,  and  there  can  be  little  doubt 
that  it  applies  when  the  suit  is  brought  in  trespass  for  mesne  profits  after  a 
recovery  in  ejectment,  on  a  mortgage  paramount  to  the  lease.  The  Fitch- 
burgh  Cotton  Corp.  v.  Melven,  15  Mass.  268  ;  Wilder  v.  Houghton,  1  Pick. 
87;  Field  v.  Swan,  10  Metcalf,  112.  It  has  been  said  that  this  rule  is 
founded,  at  least  so  far  as  it  regards  leases  anterior  to  the  mortgage,  on  the 
statute  4  Anne,  c.  16,  which  although  authorizing  grantees  to  exercise  the 
rights  of  a  landlord,  without  obtaining  the  attornment  of  the  tenant,  pro- 
tects the  latter  for  all  acts  done  before  notice  of  the  grant,  (supra.)  But 
this  explanation  does  not  apply  when  the  suit  is  for  mesne  profits,  and  seems 
insufficient  when  it  is  for  rent.  A  payment  of  rent  to  a  grantor,  after 
notice  of  an  absolute  conveyance,  is  invalid,  while  in  the  case  of  a  mort- 
gage, there  must  be  an  actual  demand  of  the  rent  by  the  mortgagee,  or  a 
prohibition  to  pay  it  to  the  mortgagor.  A  better  explanation,  therefore, 
seems  to  be,  that  the  peculiar  relation  subsisting  between  the  mortgagor  and 
mortgagee,  raises  a  presumption  which  does  not  exist  in  the  case  of  ordinary 
conveyances,  that  the  former  is  to  receive  the  rent  and  profits  of  the  land, 
notwithstanding  his  departure  with  the  legal  title,  and  that  the  tenants  are 
consequently  justified  in  making  payments  to  him  until  this  presumption  is 
rebutted  by  an  entry  or  demand  on  the  part  of  the  latter.  Carvis  v.  M'Clary, 
5  New  Hampshire,  530 ;  Jones  v.  Thomas,  8  Blackford,  428.  And  the 
decisions  in  Massachusetts  go  still  further,  and  to  the  point  that  the  mort- 
gagee is  absolutely  without  right  until  entry  or  notice,  and  consequently  can- 
not recover  the  rents  from  the  tenant,  whether  they  have  or  have  not  been 
paid  by  the  latter  to  the  mortgagor.  Wilder  v.  Houghton;  Field  v.  Swan; 
Hatch  V.  Dwight,  17  Mass.  289.  A  different  view  was  taken  in  Ilenshaw  v. 
Welles,  9  Humphreys,  568,  where  it  was  held  that  the  right  of  the  mortgagee 
accrues  as  soon  as  the  mortgage  is  executed,  and  that  although  payments 
made  in  good  faith  by  the  tenant  to  the  mortgagor,  before  demand  by  the 
mortgagee  may  be  valid,  yet  that  he  is  not  justified  in  paying  in  advance, 
and  cannot  rely  on  such  a  payment,  as  a  defence  to  a  subsequent  suit  by  the 
mortgagee.  It  was  further  held,  that  although  the  remedy  of  the  mortgagee 
against  a  tenant  claiming  under  a  lease  subsequent  to  the  mortgage,  js  by  a 
suit  for  mesne  profits  and  not  for  rent,  yet  that  this  distinction  does  not  apply 
in  equity,  and  that  the  tenant  will  be  compelled  to  pay  the  rent  reserved  in 
his  lease,  to  the  receiver  appointed  by  the  court  at  the  suit  of  the  mortgagee, 
whether  the  lease  be  subject  or  paramount  to  the  mortgage. 


GO-i  smith's    leading   cases. 

When  the  lease  is  antevioi-  to  the  mortgage,  payments  to  the  mortgagee 
stand  on  the  same  footing  with  those  made  to  other  grantees  of  the  rever- 
sion, and  constitute  a  good  defence  to  any  subsequent  action  brought  by  the 
mortgagor.  But  there  is  more  difficulty  in  adjusting  the  respective  rights 
of  the  parties,  when  the  mortgage  is  paramount  to  the  lease.  Under  these 
circumstances  the  mortgage  does  not  operate  as  a  grant  of  the  reversion,  and 
a  payment  to  the  mortgagee,  is  not  in  itself  a  defence  to  a  suit  by  the  mort- 
gagor. It  was  accordingly  held  in  Souders  v.  Van  Sickle,  3  Ilalstead,  313, 
that  a  tenant  cannot  set  up  payments  to  a  prior  mortgagee  claiming  para- 
mount to  the  lease,  as  a  bar  to  an  action  brought  by  the  landlord.  The 
position  of  the  tenant  is  sufficiently  difficult  under  this  decision,  for  if  he 
does  not  pay  the  rent  to  the  mortgagee,  he  may  be  evicted  by  the  latter  in 
an  ejectment,  and  if  he  does,  he  still  remains  open  to  another  demand  by 
the  mortgagor.  There  are,  however,  other  principles  of  law,  which  though 
overlooked  in  Souders  v.  Van  Sickle,  are  sufficient  to  extricate  him  from  this 
dilemma.  An  entry  under  a  paramount  title,  such  as  that  given  by  a  prior 
mortgage,  followed  by  an  actual  expulsion  of  the  tenant  is  an  eviction,  and 
consequently  a  bar  to  any  action  brought  for  subsequent  rent.  The  legal 
effect  of  such  an  entry  and  ouster,  is  not  varied  by  a  re-demise  to  the  tenant 
who  has  been  evicted.  And  it  would  seem  to  follow,  that  the  tenant  may 
agree  to  hold  of  the  mortgagee  as  soon  as  a  demand  is  made  by  the  latter, 
without  going  through  the  formality  of  giving  up  the  possession  of  the  pre- 
mises merely  in  order  to  resume  it,  and  may  rely  on  this  constructive  change 
of  possession,  as  an  extinguishment  of  the  rent  due  to  the  mortgagor.  Doe 
V.  Barton,  11  A.  &  E.  307.  Thus  it  has  been  held  in  some  instances,  that 
the  purchase  of  an  outstanding  title  to  avoid  an  eviction  may  be  pleaded  as 
an  eviction.  Loomis  v.  Bidel,  11  New  Hampshire,  84.  If,  said  Pollock, 
C.  B.  in  The  Mayor  of  Poole  v.  Whitt,  15  M.  &  W.  571,  "a  party  having* 
a  good  right  to  eject  the  occupier  of  demised  premises,  goes  there  and  de- 
mands to  exercise  that  right,  and  the  tenant  says,  ^'  I  will  change  the  title 
under  which  I  now  hold,  and  will  consent  to  hold  under  you,  that  according 
to  good  sense,  is  capable  of  being  well  pleaded  as  an  expulsion."  The 
mortgagee,  said  Lord  Denman  in  Doe  v.  Barton,  might  have  ejected  the 
tenants  and  afterwards  redemised  to  them,  and  it  seems  absurd  to  require 
him  to  go  through  the  form  of  an  ejectment  in  order  to  put  them  into  the 
very  position  in  which  they  now  stand." 

It  was  held  accordingly,  in  Jones  v.  Clarke,  20  Johnson,  121,  and  Ma- 
gill  V.  Hinsdale,  6  Conn.  469,  that  a  tenant  might  resist  an  action  brought 
by  the  mortgagor,  by  showing  payment  of  the  rent  to  a  mortgagee,  in  order 
to  avoid  an  eviction  under  the  mortgage.  And  it  has  been  decided  in  Mas- 
sachusetts, that  a  demand  of  the  rent  made  by  a  mortgagee,  on  a  tenant 
calming  under  a  subsequent  lease  and  supported  by  an  entry  or  a  threat  of 
entry  under  the  mortgage,  justifies  a  payment  to  him,  and  may  be  plead- 
ed as  an  eviction  to  any  subsequent  action  brought  by  the  landlord.  Smith 
V.  Shepard,  15  Pick.  147,  or  given  in  evidence  under  non  assumpsit, 
if  the  suit  be  brought  in  use  and  occupation.  Welch  v.  Adams,  1  Met- 
calf,  494.  An  eviction,  however,  can  only  be  good  as  a  defence,  when 
the  suit  is  brought  for  rent  which  has  fallen  due  subsequently,  and  not 
when  it  is  for  rent  due  at  the  time  of  the  eviction.  When  therefore,  the 
mortgagee  makes  his  right  to  obtain  a  judgment  in  ejectment,  and  for  the 


MOSS    V.     G  A  L  L  I  M  0  R  E.  605 

mesne  profits,  the  means  of  compelling  a  payment  to  himself  of  the  arrears 
of  rent  due  to  the  mortgagor,  other  principles  must  be  invoked  for  the  pro- 
tection of  the  tenants.  Under  these  circumstances,  the  case  comes  within 
the  doctrine,  that  where  a  debt  due  to  one  man  is  compulsorily  paid  to  ano- 
ther claiming  under  a  right  or  power  given  by  the  former,  the  payment  will 
enure,  not  only  as  a  set-off  or  cause  of  action,  but  as  a  satisfaction  or  extin- 
guishment of  the  debt.  Thus  in  Sapsford  v.  Fletcher,  4  Term,  513,  a  pay- 
ment of  rent  by  a  sub-lessee  in  order  to  avoid  a  distress  by  the  superior 
landlord,  was  held  to  take  effect  as  a  payment  to  the  lessor,  and  to  be  a  good 
defence  to  an  action  by  the  latter.  The  same  principle  was  applied  in  Tay- 
lor V.  Zamira,  6  Taunton,  524,  although  the  payment  was  of  a  rent-charge 
which  bound  the  estate  demised  to  the  tenant,  but  was  not  personally  bind- 
ing either  on  him  or  on  the  lessor.  It  would,  therefore  appear,  that  as  the 
mortgagee  has  a  right  to  recover  the  demised  premises  as  mesne  profits, 
although  not  as  rent,  which  grows  out  of  the  act  of  the  mortgagor,  and  may 
be  enforced  against  the  tenants,  it  must  necessarily  follow  that  a  payment 
in  discharge  of  this  right,  will  operate  as  a  payment  to  the  mortgagor  him- 
self, and  consequently  be  a  bar  to  any  demand  on  his  part. 

This  doctrine  is  illustrated  by  the  cases  of  Pope  v.  Grarbet,  9  B.  &  C.  245, 
and  Waddilove  v.  Barnet,  2  Bing.  N.  C  538.  In  the  first  of  these  cases, 
which  was  decided  before  the  new  rules,  payments  by  a  tenant  to  a  mort- 
gagee claiming  under  a  mortgage  paramount  to  the  lease,  were  held  to  be, 
against  the  mortgagor,  a  good  defence  under  a  plea  of  non-assumpsit,  whether 
the  rent  so  paid,  fell  due  before  or  after  the  notice  or  demand  by  the  mort- 
gagee. But  in  Waddilove  v.  Barnet,  where  the  pleadings  were  the  same, 
but  subsequent  to  the  new  rules,  although  the  tenant  was  allowed  to  prove 
payments  to  the  mortgagee,  under  notice,  as  a  defence  to  the  rent  which  fell 
due  subsequently,  he  was  not  permitted  to  prove  similar  payments  of  the 
rent  due  at  the  time  when  the  notice  was  given,  because  while  the  former 
showed  that  the  use  and  occupation  of  the  premises  had  been  by  the  permis- 
sion of  the  mortgagee  and  not  of  the  plaintiff,  and  were  therefore  admissible 
under  the  general  issue,  the  latter  could  only  be  good  in  confession  and 
avoidance,  and  should  have  been  specially  pleaded. 

The  principles  above  stated,  will  apply  under  proper  pleadings,  for  the 
protection  of  a  tenant  who  has  been  compelled  to  pay  the  I'eut  to  avoid  a 
suit  on  a  paramount  mortgage,  whatever  may  be  the  form  of  action 
brought  by  the  landlord.  Whether  the  question  arise  in  debt,  covenant,  or 
on  a  distress,  the  demand  of  possession  by  the  mortgagee,  and  the  agreement 
to  hold  under  him  on  the  part  of  the  tenant,  will  support  a  plea  of  eviction, 
and  thus  constitute  a  bar  to  any  claim  for  subsequent  rent.  And  all  com- 
pulsory payments  to  the  mortgagee,  may  be  given  in  evidence  in  any  of  these 
forms  of  action,  under  the  principle  laid  down  in  Taylor  v.  Zamira  and 
Sapsford  v.  Fletcher,  as  payments  to  the  mortgagor,  whether  the  rent 
on  account  of  which  they  were  made,  accrued  before  or  after  the  notice  given 
by  the  mortgagee.  And  when  the  suit  is  brought  in  assumpsit  for  use  and 
occupation,  the  evidence  will  be  admissible  under  non  assumpsit,  both  for 
the  purpose  of  disproving  the  averments  of  the  declaration  as  to  the  subse- 
quent rent,  and  for  that  of  showing  a  satisfaction  of  that  already  due,  unless 
where  there  is  some  special  rule  as  in  England,  requiring  all  matter  in  con- 
fession and  avoidance  to  be  pleaded  specially. 


60G  smith's   leading    cases. 

It  is  proper  to  observe,  that  where,  as  in  Now  York,  the  mortgagee  has 
been  deprived  of  the  right  to  take  possession  of  the  mortgaged  premises,  to 
compel  the  tenants  to  pay  the  rent  to  him  instead  of  the  mortgagor,  such 
payments  will  not  be  a  defence  to  an  action  brought  by  the  latter.  And  it 
i.s  equally  evident,  that  as  a  mortgagee  is  not  entitled  in  Massachusetts  to  the 
profits  of  the  land  before  demand  or  entry,  the  tenants  will  only  be  justified 
in  paying  him  the  rent  which  falls  due,  after  he  has  taken  actual  or  con- 
structive possession  of  the  premises,  (supra.) 

It  seems  to  have  been  thought  in  Waddilove  v.  Barnet,  and  Pope  v. 
Garbett,  that  payment  of  the  rent  by  the  tenant,  under  a  notice  from  the 
mortgagee,  may  invest  the  latter  with  the  rights  of  a  reversioner,  and  entitles 
him  to  enforce  the  stipulations  in  the  lease,  even  when  it  is  subsequent  in 
date  to  the  mortgage.  It  is,  however,  evident,  that  if  such  payments  create 
any  tenure,  it  must  be  a  tenure  perfectly  distinct  in  its  origin,  and  which. 
has  nothing  to  do  with  the  demise  by  the  mortgagor,  unless  in  so  far  as 
that  may  be  made  the  measure  of  the  new  agreement,  by  the  express  or  im- 
plied understanding  of  the  contracting  parties. 

H. 


[=^319]      *WHITCOMB    v.    WHITING. 

EASTER— 21  GEO.  3. 

[REPORTED   DOUGL.   652.] 

The  acknowledgment  of  one  out  of  several  drawers  of  a  joint  and  several  promis- 
sory note  takes  it  out  of  the  Statute  of  Limitations  as  against  the  others,  and 
may  be  given  in  evidence  in  a  separate  action  against  any  of  the  others. 

Declaration,  in  the  common  form,  on  a  promissory  note  executed  by 
the  defendant.  Pleas;  the  general  issue,  and  non  assumpsit  infra  sex 
annos:  Replication;  assuvip)sit  infra  sex  annos.  The  cause  was  tried 
before  Hotham,  Baron,  at  the  last  assizes  for  Hampshire.  The  plaintiff 
produced  a  joint  and  several  note  executed  by  the  defendant,  and  three 
others ;  and,  having  proved  payment,  by  one  of  the  others,  of  interest  on 
the  note,  and  part  of  the  principal,  within  six  years,  and  the  Judge  think- 
ing that  was  sufiicient  to  take  the  case  out  of  the  statute,  as  against  the 
defendant,  a  verdict  was  found  for  the  plaintiff. 

On  Friday,  the  4th  of  May,  a  rule  was  granted  to  show  cause  why  there 
should  not  be  a  new  trial,  on  the  motion  of  Lawrence,  who  cited  Bland  v. 
Haslerig;(a)  and  this  day,  in  support  of  the  application,  he  contended  that 


(a)  C.  B.  H.  1  &  2  W.  &  M.  2  Ventr.  150. 


J 


"WHITCOMB     V.     WHITING.  607 

the  plaintiff,  by  suing  tlie  defendant  separately,  liad  treated  this  note  exactly 
as  if  it  had  been  signed  only  by  the  defendant ;  and,  therefore,  whatever 
might  have  been  the  case  in  a  joint  action,  in  this  case  the  acts  of  the  other 
parties  were  clearly  not  evidence  against  him.  The  acknowledgment  of  a 
party  himself  does  not  amount  to  a  new  promise,  but  is  only  evidence  of  a 
promise.  This  was  determined  in  the  case  of  Heylin  v.  Hastings, (?>)  report- 
ed in  Salkeld,(c)  and  12  Modern  ;(fZ)  and,  in  *Hemings  v.  Robin-  r:»:q-|Q-i 
son,(e)  it  was  decided,  that  the  confession  of  nobody  but  a  defendant  L  J 
himself  is  evidence  against  him.  That  last  case  was  an  action  by  an  indor- 
see of  a  note,  against  a  drawer,  and  the  plaintiff  proved  the  acknowledgment 
of  a  mesne  indorser  that  the  indorsement  on  the  back  of  the  note  was  in  his 
handwriting ;  but  the  court  was  of  opinion,  that  this  was  not  evidence  against 
the  drawer,  but  that  the  indorsement  must  be  proved.  It  would  certainly 
open  a  door  to  fraud  and  collusion,  if  this  sort  of  evidence  were,  in  any  case, 
to  be  admitted.  A  plaintiff  might  get  a  joint  drawer  to  make  an  acknow- 
ledgment, or  to  pay  part,  in  order  to  recover  the  whole,  although  it  had  been 
already  paid. 

Lord  Mansfield. — The  question,  here,  is  only,  whether  the  action  is  barred 
by  the  Statute  of  Limitations.  When  cases  of  fraud  appear,  they  will  be 
determined  on  their  own  circumstances.  Payment  by  one  is  payment  for 
all,  the  one  acting,  virtually,  as  agent  for  the  rest;  and,  in  the  same  manner, 
an  admission  by  one  is  an  admission  by  all ;  and  the  law  raises  the  promise 
to  pay,  when  the  debt  is  admitted  to  be  due. 

Willes,  Justice. — The  defendant  has  had  the  advantage  of  the  partial 
payment,  and,  therefore,  must  be  bound  by  it. 

Ashurst,  and  Buller,  Justices,  of  the  same  opinion. 

The  rule  discharged(/). 


This  case  is  confirmed  by  Perham  v.  against  the  debt  at  the  time  when  the 

Raynal,  2  Bing.  306,  where  it  was  held,  payment  was  made;  Goddard  v.  Ingram, 

that  the  fact  of  one  of  the  defendants  3  Q.  B.  839,  where  the  jury,  under  the 

being  but  a  surety  was  immaterial,  VVy-  direction  of  Gnrney,  B.,  found  for  the 

att  V.  Hodson,  8   Bing.   309;  Revv  v.  defendants,  on  the  ground  that  the  pay- 

Pettet,  1   Add.  &  Ell.   196;  Pease  v.  ment  relied  upon,  and  which  had  been 

Hir?t,  10  B.  &  C.  122;  Burleigh  v.  Stott,  made  after   the   statute   had   run,  was 

8  B.  &  C.  36;  [Channell  v.  Ditchburn,  5  made  by  the  co-contractor,  not  bona  fide, 

M.  &  W.  494,  where  the  statute  had  run  but  in  fraud  of  the  defendants,  and  "  in 

(6   B.  R.H.I  0  Will.  3.  (c)lSalk.  29.  ((Zj  223. 

(e)  C.  B.  M.  6  Geo.  2.     Barnes,  4  to  ed.  436. 

(/)  The  case  of  Ilaslerig  v.  Bhnd,  cited  p.  318,  n.  («),  was  a  joint  action  against  four  ; 
the  pica,  the  Statute  of  Limitations ;  and  a  verdict,  that  one  of  the  defendants  did  assume 
within  six  j'cars,  and  that  the  otliers  did  not;  and  it  was  lield  by  Pollexfen,  C.  J.  Powel, 
and  Rokeby,  (against  Ventris),  that  the  plaintiff  could  not  have  jud£fment  against  the 
defendant,  who  was  found  to  have  promised  within  the  six  years. — Tliat  case  may  be 
explained  on  the  manner  of  the  finding ;  for  as  the  plesrwas  joint,  and  the  replication  must 
have  alleged  a  joint  undertaking,  the  verdict  did  not  find  what  the  plaintiff  had  bound 
liimscif  to  prove.  But  according  to  the  principle  in  the  case  of  Whitcomb  v.  Whiting, 
the  jury  ought  to  have  considered  the  promise  of  one  as  the  promise  of  all,  and  therefore 
should  have  found  a  general  verdict  against  all. 


G08 


SMITHS  LEADING  CASE?. 


the  jaw.s  of  bankriiptcj' ;"  and  in  answer 
to  a  question  of  the  learncil  Baron,  the 
jury  furtlicr  slated  tliat  tiiey  considered 
the  payments  to  have  been  made  by  the 
co-contractors  in  collusion  with  the 
creditor;  yet,  the  Court  of  Queen's 
Bench  declaring  that  they  could  not  for- 
bear acting  upon  numerous  authorities, 
set  aside  the  verdict,  and  ordered  a  new 
trial ;  a  very  strong  case,  because  the 
payment  was  made  under  circumstances 
from  which  there  could  hardly  be  im- 
plied a  promise  even  by  the  person  who 
made  the  payment,  to  pay  the  balance 
sued  for;]  and  Jackson  v,  Fairbank,  2 
H.  Bl.  340 ;  in  which  last  case,  one  of 
two  joint  makers  of  a  promissory  note 
having  become  bankrupt,  the  payee  of 
the  note  proved  under  the  commission, 
and  received  dividends;  and  it  was  held, 
that  the  receipt  of  the  last  dividend  being 
within  six  years  before  the  commence- 
ment of  the  action,  took  the  case  out  of 
the  Statute  of  Limitations,  as  to  both 
makers.  But  where  one  of  two  joint 
drawers  of  a  bill  of  exchange  became 
bankrupt,  and  the  holder  of  the  bill 
proved,  not  upon  the  bill,  but  for  goods 
sold,  exhibiting  the  bill  as -a  security,  it 
was  held  that  receipt  of  dividends  on  that 
proof  would  not  take  the  case  out  of  the 
statute,  as  against  the  other  drawer, 
Brand  ram  v.  Wharton,  1  B.  &  A.  463. 
[Fn  that  case  the  dividend  was  paid  upon 
the  debt  proved,  and  its  payment  could 
not,  without  straining  the  facts,  be 
treated  as  a  payment  on  account  of  the 
bill ;  but  in  general,  where  there  are 
several  securities  for  a  debt,  a  general 
payment  on  account  revives  them  all; 
thus  where  a  promissory  note  was  made 
by  a  surety  as  security  for  part  of  the 
amount  of  a  mortgage,  payment  of  in- 
terest on  the  mortgage  was  held  enough 
to  take  the  note  out  of  the  operation  of 
the  statute.  Dowlingv.  Ford,  11  M.  & 
VV.  329]  A  joint  and  several  note  is 
not  taken  out  of  the  statute,  as  against 
the  executor  of  one  of  the  makers,  by  a 
payment  made  by  the  other  after  the 
death  of  'the  deceased  maker ;  for  the 
joint  contract  is  determined  *by 
the  death  of  one  of  the  joint  con- 
tractors, Atkins  v.  Tredgold,  2  B.  &  C. 
23;  [see  Ault  v.  Goodricli,  4  Russ.  430; 
Way  V.  Bassett,  5  Hare,  55;]  nor  will  a 
payment  by  the  executor  of  the  deceased, 
under  such  circumstances,  take  the  case 
out  of  the  statute  as  against  his  survivor, 
Slater  v.  Lawson,  1  B.  &  Adol.  396. 
But  it  was  ruled   in  Burleigh  v.  Stott, 


[*320] 


that  if  one  of  two  joint  and  several 
makers  make  a  part-payment  before  the 
death  of  the  other,  that  part-payment 
will  take  the  case  out  of  the  statute 
*against  the  administrator  of  r  ^.^.->..  . 
the  other  after  his  death;  for  '- 
though  it  was  urged  that,  the  note  being 
joint  and  several,  it  must  be  considered 
as  if  there  were  three  notes,  one  joint 
and  two  several,  and  that  the  payment 
only  operated  as  an  admission  so  far  as 
the  joint  promise  was  concerned,  and  no 
further,  and,  consequently,  not  against 
the  administrator,  who  was  sued  on  the 
several  liability  of  his  intestate;  yet 
Lord  Tenterden  and  the  rest  of  the  court 
thought  that  a  part-payment  by  one  is 
an  admission  by  both  that  the  note  is 
unsatisfied,  and  that  it  operates  as  a  pro- 
mise by  both  to  pay  according  to  the 
nature  of  the  instrument,  and,  con- 
sequently, as  a  promise  by  defendant's 
intestate  to  pay  this  his  several  promis- 
sory note.  [In  Griffin  v.  Ashley,  2  Car. 
&  Kir.  139,  A.,  one  of  three  makers  of 
a  joint  and  several  promissory  note,  died, 
leaving  as  his  executor  one  of  the  sur- 
vivors, B.,  who  paid  interest  on  the  note; 
and  that  payment  was  relied  upon  in 
answer  to  a  plea  of  the  statute  of  limi- 
tations in  an  action  against  the  other 
surviving  co-contractor,  C. ;  on  whose 
part  evidence  was  opened  to  prove  that 
the  payment  had  been  made  by  B.  in 
the  character  of  executor  to  A.,  and  so, 
as  C.  insisted,  did  not  take  the  case  out 
of  the  statute  as  against  him;  upon 
which,  according  to  the  report.  Cress- 
well,  J.,  before  whom  the  cause  was 
tried,  "  without  hearing  the  evidence, 
directed  the  jury  to  find  a  verdict  for  tlie 
plaintiff."  That  ruling  is  questioned  in 
a  note,  2  Car.  &  Kir.  140;  but  it  seems 
not  improbable  that  the  learned  judge 
considered  the  evidence  opened  by  the 
defendant's  counsel,  the  particulars  of 
which  are  not  stated  in  the  report,  insiif' 
Jicient ;  not  irrelevant,  to  prove  that  the 
payment  was  made  by  B.  in  his  character 
of  executor  only;  the  onus  of  establish- 
ing which  fact,  according  to  Way  v. 
Bassett,  5  Hare,  57,  lay  on  the  defendant. 
In  that  case  Sir  James  Wigram,  V.  C, 
held  that  acts  done  by  one  of  several 
surviving  partners  who  was  executor  of 
the  deceased  partner,  being  acts  which 
the  surviving  partners  were  in  that  cha- 
racter bound  to  do,  could  not  prima  facie 
be  considered  as  done  in  the  character 
of  executor;  and  accordingly,  that  pay- 
ments made  by  the  surviving  partners, 


■\V  H  I  T  C  0  M  B    V.    W  II I  T  I  N  a. 


609 


on  account  of  a  debt  of  the  original  firm, 
had  not  the  effect  of  taking  that  debt 
out  of  the  statute,  as  against  the  real  or 
personal  estate  of  the  deceased  partner. 
It  is  a  moot  question  whether  a  payment 
made  by  one  executor  in  his  representa- 
tive character,  but  without  any  express 
authority  from  the  other  executors,  re- 
vives the  debt  so  as  to  bind  them  in  their 
representative  character.  It  seems  to  have 
been  the  opinion  of  the  judges  of  the  Court 
of  Queen's  Bench  in  Atkins  v.  Tredgold, 
2  B.  &  C.  23  ;  3  D.  &  R.  200  S.  C. ;  and 
JMcCulloch  V.  Dawes,9D.  &.R.40;  that 
the  payment  by  one  in  his  character  of 

r  *'^''>n/)  1  ^x^ci^'^oi''  iii^y  *have  that  ef- 
■-  *  "  -'  cct.  The  ruling  of  Lord  Ten- 
terden  in  TuUoch  v,  Dunn,  1  R.  &.  M. 
416,  is,  however,  an  authority  to  the 
contrary.  In  Scholey  v.  Walton,  12  M. 
&,  W  510,  the  question  was  incidentally 
discussed,  but  there  being  no  evidence 
to  siiow  in  what  character  the  payment 
was  made,  it  became  unnecessary  to  de- 
cide it.  The  inclination  of  Lord  Abin- 
ger's  mind  appears  to  have  been,  that  a 
payment  by  one  executor  would  bind  the 
other;  but  Parke,  B., expressed  a  strong 
opinion  in  favour  of  the  ruling  of  Lord 
Tenterden  in  Tulloch  v.  Dunn,  of  which 
case  he 'said,  "I  own  that  decision  of 
Lord  Tenterden  which  has  been  cited, 
appears  to  me  to  be  a  correct  decision, 
that  one  executor  cannot  be  bound  by 
the  express  promise  of  another,  even  if 
he  binds  Imnself  in  his  character  of  an 
executor ;"  and  again, "it appears  to  me 
that  that  case  is  founded  in  justice  and 
good  sense,  and  ought  to  be  followed." 
In  Scholey  v.  Walton,  the  transaction 
relied  upon  to  take  the  case  out  of  the 
statute  was  an  allowance  in  account  by 
one  of  the  executors  against  his  own 
debt,  of  interest  upon  the  debt  of  the 
testator  which  was  the  subject  of  the 
action ;  and  the  account  was  marked 
"  settled,"  and  was  signed  by  the  execu- 
tor; but  as  was  pointed  out  by  Lord 
Abinger,  he  did  not  add  the  word  "exe- 
cutor," or  "as  executor,"  to  his  signa- 
ture, nor  was  he  dealing  with  the  testa- 
tor's goods  at  the  time;  "therefore," 
said  his  lordship,  "in  order  to  show  that 
he  was  acting  in  an  executive  character, 
the  plaintift"  should  have  given  some 
evidence  to  show  that  this  was  a  settle- 
ment of  accounc  by  him  with  the  con- 
sent of  the  other  executors,  or  with  a  view 
to  reduce  the  amount  of  a  claim  upon 
the  estate.  That  would  be  evidence  to 
go  to  the  jury  of  the  payment  being 
Vol.  I. — o9 


made  by  him  in  that  character ;  but  as 
it  stands,  the  document  itself  says 
nothing  of  the  kind,  and  the  evidence 
does  not  supply  the  ambiguity."] 

St.  9  G.  4,  cap.  14,  enacts  that  where 
there  shall  be  two  or  more  joint  con- 
tractors or  executors  or  administrators 
of  any  contractor,  no  such  joint  contrac- 
tor, executor,  or  administrator,  shall  lose 
the  benefit  of  the  said  enactments  (sub- 
intell.  statutes  of  limitation),  or  either 
of  them,  so  as  to  be  chargeable  in  re- 
spect or  by  reason  only  of  any  written 
acknowledgment  or  promise  made  or 
signed  by  any  other  or  others  of  them ; 
provided  always  that  nothing  herein 
contained  shall  alter  or  take  away,  or 
lessen  the  eff'ect  of  any  payment  of  any 
principal  or  interest  made  by  any  person 
whatsoever ;  provided  also  that  in  actions 
to  be  commenced  against  two  or  more 
such  joint-contractors  or  executors, 
or  administrators,  if  it  shall  appear 
at  the  trial  or  otherwise  that  the  plain- 
tiff, though  barred  by  either  of  the  said 
recited  acts  or  this  act  as  to  one  or  more 
of  such  joint  contractors  or  executors  or 
administrators,  shall,  nevertheless,  be 
entitled  to  recover  against  any  other  or 
others  of  the  defendants  by  virtue  of  a 
new  acknowledgment,  or  promise  or 
otherwise,  judgment  may  be  given  and 
costs  allowed  for  the  plaintiff  as  to  such 
defendant  or  defendants,  against  whom 
lie  shall  recover,  and  for  the  other  defen- 
dant or  defendants  against  the  plaintiffs. 
And  by  sect.  2,  it  is  further  enacted, 
that,  if  any  defendant  or  defendants  in 
any  action  on  any  simple  contract  shall 
plead  any  matter  in  abatement,  to  the 
effect  that  any  other  person  or  persons 
ought  to  be  jointly  sued  and  issue  be 
joined  on  such  plea,  and  it  shall  appear 
at  the  trial  that  the  action  could  not,  by 
reason  of  the  said  recited  acts  or  this 
act,  or  of  either  of  them,  be  maintained 
against  the  other  person  or  persons 
named  in  such  plea,  or  any  of  them,  the 
issue  joined  on  such  plea  shall  be  found 
against  the  party  pleading  the  same. 

Since  this  enactment,  one  joint  con- 
tractor cannot  prevent  the  other  from 
taking  advantage  of  the  statute  of  limi- 
tations by  any  species  of  acknowledg- 
ment excepting  a  part  payment  of  prin- 
cipal or  interest.  But  as  the  statute  ex- 
pressly saves  the  effect  of  such  a  pay- 
ment, the  principal  case  of  Whitcomb  v. 
Whiting  isstill  law,  and  has  been  recog- 
nised as  such  in  Wyatt  v.  Hodson,  8 
Bir)g.  313,  ubi  per  Park,  Justice:    "1 


GIO 


smith's    l  k  a  d  I  n  g    cases. 


[*321] 


have  always  considered  VVhitcomb  v. 
VVhitiiinf  a  j^ovorniiig  case,  notwithstand- 
ing some  observations  which  have  been 
thrown  out  against  it;  but  the  case  has 
been  recog-nised  in  Burleigh  v.  Stott, 
and  confirmed  in  Pcrliam  v.  Raynal, 
where  an  acknowledgment  by  one  of 
several  joint  contractors  on  a  promissory 
note  was  held  to  be  binding  on  the 
others.  .That  was,  like  the  present,  the 
case  of  a  surety,  and  therefore,  expressly 
in  point.  Then  the  recent  statute  hav- 
ing distinguished  between  the  effect  of 
a  promise  by  one  of  many  joint  contrac- 
tors, and  the  payment  of  interest  by 
such  a  person,  the  law  in  respect  of 
such  a  payment  remains  where  it  was 
under  the  previous  decisions."  Rew  v. 
Peltet,  1  Ad.  &  Ell,  190,  is  another  case 
to  the  same  effect.  The  reason  which 
induced  the  legislature  to  make  this  dis- 
tinction in  favour  of  payment  is  said  by 
Tindal,  Chief  Justice,  in  Wyatt  v.  Hod- 
son,  to  have  been,  because  the  payment 
of  principal  or  interest  stands  "on  a  dif- 
ferent ^footing  from  the  making 
of  promises,  which  are  often  rash 
and  ill-interpreted,  while  money  is  not 
usually  paid  without  deliberation;  and 
payment  is  an  unequivocal  act,  so  little 
liable  to  misconstruction  as  not  to  be 
open  to  the  objection  of  an  ordinary  ac- 
knowledgment." 

With  respect  to  the  mode  of  proving 
such  a  payment — it  has  been  held  that 
if  goods  be  given  and  accepted  in  part 
r^o9i  -]  payment  *within  six  years, 
^  ~  -•  that  takes  the  case  out  of  the 
statute.  Hooper  v.  Stephens,  4  A.  & 
E.  71:  Hart  v.  Nash,  2  C.  M.  &  R., 
337.  [But,  an  open  account  between 
two  tradesmen,  each  charging  the  other 
with  goods,  though  containing  items 
within  six  years,  has  not,  without  an 
appropriation  of  the  charges  on  one  side 
in  liquidation  of  those  on  the  other,  the 
effect  of  avoiding  the  bar;  for  the  ex- 
ception in  9  G.  4  is  in  favour  of  pay- 
ments only.  Cottam  v.  Partridge,  4  M. 
&  Gr.  "271 ;  4  Scott,  N.  R.  81i),  S.  C. ; 
Clark  V.  Alexander,  8  Scott,  N.  R.  147, 
Where,  however,  there  is  such  an  appro- 
priation by  going  through  the  account 
and  striking  a  balance,  with  an  agree- 
ment express  or  implied  that  the  balance 
only  shall  be  paid,  such  a  transaction  is 
equivalent  to  a  payment  of  the  lesser 
debt  and  a  repayment  of  the  amount  in 
liquidation  of  so  much  of  the  greater 
debt;  and  so  it  operates  to  save  the  bal- 
ance of  the  larifer  debt  from  the  effect 


of  the  statute,  Ashby  v.  James,  11  }.].  &. 
W.  542,  per  Alderson,  B. :  Scholey  v. 
Watton,  12  M.  &,  W.  510,  per  Parke, 
B,  A  payment  on  account  of  the  credi- 
tor in  part  liquidation  of  the  debt  has  of 
course  the  same  effect  as  a  payment  to 
himself.  Hart  v.  Stephens,  G  Q.  B. 
937;  Worthington  v.  Grimsditch,  7  Q. 
B.  479;  see  Clarke  v.  Hooper,  10  Bing. 
480.]  St.  9  G.  4,  cap.  14,  enacts,  "  that 
no  indorsement  or  memorandum  of  any 
payment  made  upon  any  bill  of  exchange, 
promissory  note,  or  other  writing,  by,  or 
in  behalf  of,  the  person  to  whom  such 
payment  is  made,  shall  be  deemed  sut!i- 
cient  proof  of  payment  to  take  the  case 
out  of  the  operation  of  the  statutes  of 
limitation;"  and,  that  part  payment  may 
have  that  effect,  it  must  be  observed, 
that  there  are  two  reqliisites  besides 
proof  of  the  naked  fact  of  payment.  1st. 
it  must  appear  that  the  payment  was 
made  on  account  of  a  larger  debt; 
2ndly,  that  that  debt  is  the  one  sued 
for;  Tippetts  v.  Heane,  4  Tyrwh.  775. 
See  the  judgment  of  Parke,  B.  there, 
and  see  Holme  v.  Green,  1  Stark.  488. 
In  Evans  v.  Davis,  4  A.  &  E.  840 ;  [  Wor- 
thinofton  V.  Grimsditch,  supra,  and  Burn 
V.  Boulton,  2  C.  B.  476,]  the  evidence 
was  held  sufficient  for  that  puVpose.  [In 
Waugh  V.  Co])e,  6  M.  &  W.  829,  the 
evidence  was  held  insufficient.]  See 
further.  Mills  v.  Fowkes,  5  Bing.  N.  C. 
455 ;  Moore  v.  Strong,  1  Bing.  N.  C. 
442.  [The  1st  requisite  above  mention- 
ed involves  this  also,  that  the  payment 
be  made  under  circumstances  which  do 
not  rebut  the  implication  of  a  proinise  to 
pay  the  balance;  because  it  is  only  as 
giving  rise  to  such  an  implication,  and 
not  by  any  specific  effect  of  its  own,  that 
a  payment  operates.  Wainman  v.  Kin- 
man,  1  Exch.  118,  yet  see  Goddard  v. 
Ingram,  3  Q.  B.  839;  for  which  reason 
the  payment  must  also  be  before  action 
brouglit,  Batoman  v.  Pindar,  3  Q,.  B. 
574,  ^overruling  Yea  v.  Four-  r^o.^iiT 
aker,  2  Burr.  1099.  The  2nd  1-  '^"^°-' 
requisite  mentioned  above  has  led  to  a 
discussion,  whether,  where  there  are 
two  clear  and  undisputed  debts,  either 
can  be  taken  out  of  the  statute  by  evi- 
dence of  a  part  payment  not  specifically 
appropriated  by  the  debtor;  upon  which 
question  the  Court  of  Common  IMeas  are 
said  to  have  incidentally  expressed  an 
opinion  in  the  negative,  Burn  v.  Boulton, 
2  C.  B.  470;  but,  with  submission,  it 
seems  to  be  a  proper  question  for  the 
jiirv,   whether  the   payment   was  made 


W  H  I  T  C  O  M  B     V.     WHITING. 


Gil 


g'enerally  on  account  nf  wluitever  migiit 
be  due  from  the  debtor  at  the  time,  and 
if  so  both    the  debts  would   be   saved.] 
In    Mills  V.   Fowkes,  it   was  held    that 
though  a  creditor  has  a  right  to  appro- 
priate   a    payment   made   generally    to 
an  item  barred   by  the  statute   of  lim- 
itations,  still    such    payment    is   not   a 
payment    on    account    so    as    to    take 
the   remainder  of  the  demand    out   of 
the  statute.     [Accord.  Waller  v.  Lacy, 
1  So.  N.  R.  186,  1   M.  &,  Gr.  54,  S.  C] 
In  Willis  V.  Newham,  3  Y.  &  J.  518, 
the    Court   of  Exchequer    held,   that  a 
verbal  acknowledgment  of  part-payment 
of  a  debt  was  not  sufficient  prooi"  thereof 
within  thisstatnte;  the  import  of  which 
they  construed  to  be,  that   in   no  case 
siiould  a  mere  verbal  acknowledgment 
take  a  case  out  of  the  statute  of  lunita- 
tions,    whether     that    acknowledgment 
were  of  the  existence  of  the  debt,  or  of 
the  fact  of  payment.     Vide  Trontham  v. 
Deverill,  8  Bing.  N.  C.  397.    The  autho- 
rity of  Willis  V.  Newham  has  been  ques- 
tioned,   [though   it  was  acted   upon    in 
Bay  ley  v.  Ashton,  12  Ad.  &  El.  493,  4. 
Per.  &  D.  204,  S.  C. ;  Maghee  v.  O'Neil, 
7  M.  &  W.  531  ;  Eastwood  v.  Savile,  9 
M.  &  W.  615:  Clark  v.  Alexander,  8 
Scott,  N.  R.  147,  and   probably  as  sug- 
gested  in  more  than  one  of  the  cases 
above  cited,  its  doctrine  may  not  stand 
the  test  of  a  writ  of  error;]  and  at  all 
events,  it  is  quite  clear,  [that  written 
and    signed    evidence  of   appropriation 
may  be    confirmed   by   parol,  Bevan  v. 
Gething,  3  Q.  B.  740,  and]  that  if  the 
payment  be  proved  as  a  fact,  the  appro- 
priation of  that  payment   to    the   debt 
which  it  is  sougiit  to  take  out  of  the 
statute  of  limitations  may  be  proved  by 
an  admission,  Waters  v.  Tomkins,  2  C. 
M.  &  R.  726.    That  action  was  brought 
to  recover  the  amount  of  five  notes,  one 
fur  100/.,  two  for  .50/.,  and   two  for  20Z. 
each  ;  the  evidence  upon  an  issue  joined 
on  plea  of  actio  non  accrevit  infra  sex 
annos  was,  that  within  six  years  the 
maker,  the  defendant,  on  application  to 
him,  said,  his  wife  would  have  called  on 
the  holder  and  paid  money  on  account  of 
the  interest  on  200/.,  but  for  their  child's 
illness;  about  a  fortnight  after  which, 
the  wife  called,  and   paid   15  shillings, 
without  saying  on  what  account;  on  an- 
other occasion  the  defendant  sent  word 
to   the   testator   that   his   wife   was    in 
r*3"^lcl     *^'^^''''''  "•■  ^'^'ould  have  called 
'-"'-'     with  the  interest ;  and  th-dl  Ihc 
wife  on  other  occasions  made  payments 


to  the  testator,  who  said,  at  the  time,  he 
should  be  glad  if  the  interest  were  more 
regularly  paid.  This  evidence  was  held 
to  warrant  the  jury  in  finding  a  verdict 
for  the  plaintiif.  See,  too,  Bevan  v. 
Gething-,  3  Q.  B.  740,  where,  however, 
Coleridge,  J.  expressed  a  doubt  as  to  the 
correctness  in  principle  of  Waters  v. 
'J'oinpkins.]  Nor  need  the  writing 
which  is  relied  on  fur  the  purpose  of 
taking  a  debt  out  of  the  operation  of  the 
sttituie  specify  its  amount;  that  may  be 
proved  by  parol;  Bird  v.  Gammon,  3 
Bing.  N.  C.  888.  [Waller  v.  Lacy,  1 
M.  ■&.  Gr.  54,  1  Sc.  N.  K.  186,  S.  C. ; 
Dickenson  v.  Hatfield,  1  Moo.  &  R. 
141 ;  Chealey  v.  Dalby,  4  You.  &  Coll. 
228] 

When  a  bill  is  given  on  account  of 
part  of  a  debt,  and  is  paid  by  the  drawee, 
the  statute  is  not  avoided  by  such  pay- 
ment though  it  may  be  by  the  delivery 
of  the  hill;  Irving  v.  Veitch,  3  .^L  &.  W. 
90.  [Whether  the  promise  implied  from 
part  payment  to  the  holder  of  a  negoti- 
able instrument  is  itself  negotiable, 
quaere.  See  Cripps  v.  Davis,  12  M.  & 
W.  1.59.] 

An  attempt,  which  proved,  however, 
unsuccessful,  was  lately  made  to  oust 
the  defendant  of  his  opportunity  of 
pleading  the  statute  of  limitations,  by 
averring  a  payment  of  interest  within 
six  years,  in  the  declaration,  instead  of 
g-iving  it  in  evidence  under  the  replica- 
tion. The  declaration,  which  was  on  a 
promissory  note  for  127/.  10s  Sd.,  pay- 
able on  demand,  toith  inttresl,  after  com- 
mencing in  the  ordinary  way,  proceeded 
to  state  that  liie  defendant  "disregarded 
his  promise,  and  did  not  pay  the  amount 
of  the  note  and  interest,  or  any  part 
thereot',  except  interest  on  the  said  note, 
at  the  rate  of  51.  per  cent.,  from  the  day 
of  the  date  of  said  note  up  to  a  certain 
day  loilhin  six  years  next  before  the 
cowmcncement  of  this  suit,  to  wit,  the 
2C}>h  April,  1S30;  which  interest  was, 
loilhin  six  years  next  before  the  com- 
mencement of  this  suit,  to  icit,  on  the 
last-mentioned  day,  paid  by  the  defend- 
ant to  S.  Davies,"  as  whose  executrix 
the  plaintiff'  sued.  Plea,  Actio  non  ac- 
crevit infra  sex  annos.  Demurrer  and 
joinder.  It  was  contended  for  the  plain- 
Uff,  that  the  payment  of  interest  on  the 
note  within  six  years  took  the  entire  de- 
mand out  of  the  operation  of  the  statute 
of  limitations,  and  that  such  payment 
being  averred  in  the  declaration  and  not 
traversed,  the  plea  was  bad,  since  it  was 


612 


SMITHS     LEADING    CASES. 


foundeiJ  on  .1  statute  which  tlie  declara- 
tion tihowed  to  be  innpplicablo.  The 
court,  however,  held  the  pica  r^ood,  upon 
the  t^rround  thai  the  payment  of  interest 
within  six  years  did  not  necessarily,  as 
a  proposition  of  law,  take  the  debt  out  of 
the  operation  of  the  statute,  but  was 
only  evidence  whence  the  jury  niijjht 
infer  the  continuinjr  existence  of  the 
cause  of  action.  "  The  question  is," 
said  the  Lord  Chief  Justice,  "  whe- 
ther the  first  plea,  as  pleaded  to  this 
count,  is  an  answer  to  the  whole. 
What  is  the  whole  ]  A  cause  of 
action  within  six  years.  Interest,  how- 
rmo.-).-)-,  ever,  *as  separate  from  the  prin- 
*-  "^J  cipal,  is  not,  of  itself,  a  cause  of 
action,  thouo-h  the  payment  of  it  is  one 
mode  of  evidence  to  show  that,  prima 
fdcie,  a  cause  of  action  subsists.  That 
is  the  legal  effect  of  the  payment.  The 
statute  9  G.  4,  c.  14,  s.  1,  has  this  pro- 
viso. 'Provided  always  that  nothing 
herein  contained  shall  alter  or  take 
away,  or  lessen  the  effect  of  any  pay- 
ment of  any  principal  or  interest  made 
by  any  person  whatsoever.'  Since  that 
.statute,  as  before,  payment  of  interest 
may  atibrd  an  inference  that  the  prin- 
cipal is  still  due.  But  how  are  we  to 
Sjnow  whether  it  is  so  or  not,  unless  we 
koew  the  circumstances  under  which 
the  interest  has  been  paid!  I  think, 
therefore,  that  the  declaration  discloses 
only  evidence  of  a  cause  of  action  and 
not  any  actual  cause  of  action  that  has 
not  been  barred  by  the  plea,  and  conse- 
quently that  our  judg;nent  must  be  for 
the  defendant."  Ilollis  v.  Palmer,  2 
Eing.  N.  C.  713. 

Having  touched  on  St.  9  G.  4,  c.  14. 
it  may  not  be  amiss  to  advert  to  a  case 
of  great  importance  lately  decided  on 
it,  although  not  immediately  bearing 
upon  the  point  in  the  principal  case, 
Wiiitcoirib  v.  Whiting.  The  enactment 
ol  the  first  section  of  the  statute  is,  as 
will  be  recollected,  that  no  acknowledg- 
ment or  promise  by  words  only  shall  be 
deemed  sufficient  evidence  of  a  new  or 
continuing  contract,  "unless  such  ac- 
knowledgment or  promise  shall  be  made 
or  contained  in  some  writing,  to  besis^n- 
ed  by  the  party  chanreahle  thereby." 
In  consequence  of  these  last  words,  it 
has  been  solemnly  decided  that  an  ac- 
knowledgment, signed  by  an  agent  in 
liehalf  of  the  debtor,  is  not  sufficient ; 
Hyde  v.  .Fohnson,  2  Bing.  N.  C.  777;  ii 
Scott,  299  S.  C.  It  does  not,  however, 
appear  fi'om   that  case,  that  the   agent. 


who  was  the  party's  own  v.'ifo,  was 
authorised  in  wriling  ;  so  that,  perhaps 
some  doubt  may  still  exist  whether,  if  a 
case  were  to  occur,  in  which  an  agent 
authorised  by  writing  were  to  sign  a 
written  acknowledgment,  this  last  would 
not  bo  looked  upon  as  sufficiently  con- 
nected with  the  document  signed  by  the 
principal  to  satisfy  the  words  of  the 
statute.  It  must,  however,  be  observed, 
that  the  expressions  used  by  the  Chief 
Justice,  in  Hyde  v.  Johnson,  arc  ex- 
tremely comprehensive,  and  seem  to 
militate  against  such  a  distinction. 
"  Looking,"  says  his  Lordship,  "  at  the 
words  of  the  statute,  it  is  confined  in 
terms  to  a  writing  signed  by  the  party 
chargeable  thereby;  and  as  the  effect  of 
that  statute  is,  for  the  first  time,  to  in- 
troduce a  legislative  exception  into  the 
statute  21  Jac.  1,  c.  IG  ;  and  thereby,  pro 
tanto,  to  repeal  it,  we  do  not  feel  our- 
selves justified  in  extending  such  excep- 
tion beyond  the  plain  and  unambiguous 
meaning  of  the  words  employed  therein. 
The  legislature  has,  in  many  cases,  giv- 
en equal  efficacy  to  written  instruments 
when  signed  by  the  parties,  and  when 
signed  by  their  agents;  but  in  all  those 
cases  express  words  have  been  employed 
for  that  purpose.  The  Statute  of  Frauds, 
in  its  third  section,  requires,  for  the  pur- 
poses of  that  section,  a  note  in  writing 
to  be  signed  by  the  party,  'or  tlieir 
agents  thereto  lawfully  authorised  by 
writing ;'  in  the  fourth  section  a  memo- 
randum or  note  in  writing  is  required, 
'  signed  by  the  party  to  be  charged  there- 
with, or  some  other  person  thereto  by 
him  lawfully  authorised;'  in  the  fifth 
section,  a  devise  of  lands  is  required  to 
be  made  in  writing,  to  be  signed  by  Llie 
party  so  devising,  '  or  by  some  other  per- 
son in  his  presence,  and  by  his  expre.ss 
directions;'  in  the  seventh  section,  a 
declaration  of  trusts  of  any  lands  shall 
be  in  writing,  'signed  by  tlie  party;' 
and  lastly,  the  seventeenth  section  re- 
quires, upon  the  sale  of  goods,  that  there 
shall  be  some  note  or  memorandum  in 
writing  of  the  bargain, 'signed  by  the 
parties  to  the  contract,  or  their  agents 
thereunto  lawfully  authorised.'  It  ap- 
pears, therefore,  that  the  legislature 
well  knew  how  to  express  the  distinc- 
tion not  only  between  a  signature  by  the 
party,  and  a  signature  by  his  agent; 
but  also  to  describe  the  different  modes 
in  which  agents  flor  different  purposes 
are  to  be  p|)ointed.  'J'he  same  obser- 
vation arises  upon  referring  to  the  more 


W  II  I  T  C  0  M  B      Y.      W  III  TI  N  G. 


613 


recent  stntutcs,  .'3  &.  4  W.  4,  c.  27,  s. 
42,  and  c.  42,  s.  5.  When,  therefore, 
we  find  in  the  statute  now  under 
considGration,  that  it  expressly  men- 
tions the  signatureof  the  party  only,  we 
tiiink  it  a  safer  construction  to  adlicre  to 
the  precise  words  of  the  statute,  and  that 
we  should  be  legislating,  not  inlerpret- 
r*'30"l  '"S'  '^  ^^°  extended  *its  opera- 
'■  '^^  tions  to  writings  signed,  not  by 
the  party  chargeable  thereby,  but  by  his 
agent." 

If  the  question  just  supposed  were  to 
be  mooted,  a  good  deal  would  depend 
upon  the  wording  of  the  agent's  written 
authority.  Supposing,  by  that  authority, 
A.  were  to  direct  the  agent  "to  investi- 
gate the  account  between  himself  and 
U  ,  and  to  acknowledge  the  balance,  if 
any  should  appear  to  be  due;"  it  possi- 
bly might  be  urged  that  the  acknowledg- 
ment, when  made  and  signed  by  the 
agent,  would,  if  it  referred  in  terms  to 
the  authority,  be  incorporated  by  refer- 
ence thereinto,  in  the  same  way  that 
the  instrument  by  which  a  power  is  ex- 
ecuted becomes,  in  contemplation  of 
law,  part  of  the  deed  by  which  the 
power  was  created.  Supposing  that, 
in  the  case  just  put,  the  written  ac- 
knowledgment by  the  agent  were  to  be 
held  sufiicienlly  connected  with  the 
signature  of  the  principal  to  satisfy 
the  exigency  of  the  statute,  might  it  not 
be  urged  with  some  plausibility,  that,  as 
omne  majus  continet  in  se  minus,  less 
effect  could  not  be  given  to  the  signature 
of  an  agent  acting  under  a  general  au- 
thority ?  It  may  be  observed,  too,  that 
the  policy  of  the  act  would  by  no  means 
militate  against  such  arguments,  for  the 
object  of  the  statute  was  to  prevent  a 
claim  from  being  made  out  after  the  lapse 
of  a  number  of  years  by  mere  parol  tes- 
timony; an  object  which  is  by  no  means 
defeated  by  allowing  it  to  be  made  out 
by  any  number  o^  written  documents,  no 
matter  by  whom  signed,  provided  there 
be  written  evidence  to  show  that  they  all 
en)anate  from  the  party  to  be  charged, 
and  are  clothed  witii  his  assent.  Thus, 
under  the  Statute  of  Frauds,  the  policy 
of  which  is  similar  to  that  of  9  G.  4,  c. 


14,  the  contract  may  he  contnincd  by 
any  number  of  writings,  provided  they 
can  be  connected  in  sense,  without  the 
interposition  nf  parol  evidence.  Cobbold 
v.  (Huston,  I  ]\\\vg.  :.599  ;  Jackson  v.  Lowe, 
Ibid.  9;  Pliillimore  v.  Barry,  1  Camp, 
013  ;  Saunderson  v.  Jackson,  2  13.  &  V. 
233.  Suppose  A.  were  in  writing  to  ac- 
knowledge a  debt  due  from  B.  to  C,  and 

15.  were  afterwards,  by  writing  signed, 
expressly  to  approve  of  tiiat  acknow- 
ledgment ;  would  not  such  an  approval 
be  sufliciont  to  take  the  debt  out  of  the 
operation  of  the  statute?  may  it  not  be 
contended  that  the  maxim  omnis  rutihi- 
bilio  rctrolrahilur  elmandalo  equipara- 
tur  is  convertible,  and  that,  ifsuch  a  sub- 
sequent approval  by  B  would  suffice,  a 
previous  authority,  similarly  signed, 
would  suffice  also?  [In  the  more  recent 
case  of  Clark  v.  Alexander,  8  Sc.  N.  R. 
147;  Hyde  v.  Johnson,  was  recognised 
and  acted  upon,  and  it  was  made  a  ques- 
tion, which  however  the  state  of  facts 
rendered  it  unnecessary  to  decide, — 
whether  a  written  acknowledgment 
made  and  signed  by  one  of  several  part- 
ners, stands  upon  a  different  footing  from 
a  written  acknowledgment  made  and 
signed  by  one  of  .several  ordinary  joint 
contractors,  which  is  provided  for  by  the 
act  9  Geo.  4,  c.  14, — a  question  too 
which,  when  it  comes  to  be  solemnly 
discussed,  there  may  not  be  found  much 
ditTiculty  in  answering  in  the  negative.] 

There  is  in  the  9  G.  4,  c.  14,  a  provi- 
so, that  "  no  memorandum  or  other  writ- 
ing made  necessary  by  this  Act  shall  be 
deemed  to  be  an  agreement  within  any 
Stamp  Act."  The  effect  of  this  appears 
to  be  to  render  the  stamp  unnecessary 
v/here  the  agreement  is  put  in  merely 
for  the  purpose  of  avoiding  the  statute  of 
limitations,  the  debt  having  been  proved 
aliunde.  But  if  it  were  put  in  as  the  onl}' 
evidence  of  a  debt  though  more  than  six 
years  old,  semhle  that  it  would  require  a 
stamp,  Morris  v.  Dixon,  4  Ad.  &  Ell. 
845.  The  proviso  has  been  held  to  be 
inajjplicable  to  the  case  of  an  unstnmped 
promissory  Note,  Jones  v.  l^yder,  4  M. 
&  \V.32. 


In  order  to  understand  how  far  a  payment  or  acknowledgment  by  one  of 
several  co-contractorsj  h^hould  be  allowed  to  take  a  cause  of  action  arising 
under  tlic  joint  contract,  out  of  the  statute  of  liinitation.s  as  against  the  rest, 


G14  smith's  leading   cases. 

it  is  necessary  to  inquire  into  the  general  principles,  on  which  evidence  of 
subsequent  facts  or  admissions,  is  received  to  prevent  the  operation  of  that 
statute  as  a  bar  to  a  recovery. 

It  is  now  held  universally,  both  in  the  United  States  and  in  England, 
that  in  order  to  take  a  case  out  of  the  statute  of  limitations,  there  must  be 
evidence  from  whence  the  law  can  imply  a  new  promise,  although  such  pro- 
mise may  be,  and  when  the  declaration  pursues  the  original  facts,  must  be, 
supported  by  the  old  consideration.  Thus  it  has  been  repeatedly  and  ex- 
pressly decided  in  New  York,  that  to  prevent  the  operation  of  the  statute 
as  a  bar,  there  must  have  been  within  six  years,  either  an  express  jiromise, 
or  the  acknowledgment  of  a  subsistiiti/  dehf,  from  which  a  promise  of  pay- 
ment may  be  enforced.  With  whatever  clearness  the  debt  be  acknowledged, 
if  the  debtor  express  an  intention  not  to  pay,  there  can  be  no  recovery  ; 
and  the  same  result  will  follow  a  contingent  or  conditional  promise  of  pay- 
ment, unless  the  condition  or  contingency  be  shown  to  have  occurred,  or  to 
have  been  performed.  Allen  v.  Webster,  15  Wendell,  284 ;  Stafford  v. 
Richardson,  lb.  302 ;  Graylord  v.  Van  Loan,  lb.  308  ;  Hancock  v.  Bliss, 
7  Id.  187  ;  Stafford  v.  Bryan,  3  Id.  532  ;  Purdj  v.  Austin,  lb.  187  ;  Sands 
v.  Gelston,  15  Johnson,  511 ;  Danforth  v.  Culver,  11  Id.  146.  The  law  is 
held  the  same  way  in  Massachusetts.  Bangs  v.  Hall,  2  Pick.  368 ;  Bar- 
ley v.  Crane,  21  Id.  323  ;  Barnard  v.  Bartholomew,  22  Id.  291;  Munford 
v.  Freeman,  7  Metcalf,  432.  "  If,"  said  Shaw,  C.  J.,  in  Sigourney  v.  Drury, 
14  Pick.  390,  '' more  than  six  years  have  elapsed  since  the  makingof  the  ori- 
ginal promise,  or  since  the  cause  of  action  thereon  accrued,  it  must  appear  that 
the  defendant  has  made  a  new  promise  to  pay,  within  six  years.  Such  promise 
may  be  express  or  implied,  and  a  jury  will  be  authorised  and  bound  to  infer 
such  promise,  from  a  clear  unconditional  and  unqualified  admission  of  the 
existence  of  the  debt,  at  the  time  of  such  admission,  if  unaccompanied  with 
any  refusal  to  pay,  or  declaration  indicative  of  any  intention  to  insist  on  the 
statute  of  limitations  as  a  bar."  This  language  necessarily  implies,  that 
the  most  unqualified  admission  of  the  existence  of  a  debt,  will  be  insufii- 
cient  to  sustain  a  recovery,  if  accompanied  by  expressions  showing  an  inten- 
tion not  to  pay  it,  or  to  rely  on  the  statute  for  protection.  The  same  rule  pre- 
vails in  the  Supreme  Court  of  the  United  States,  where  it  has  been  repeatedly 
determined,  that  evidence  of  the  confessions  of  the  defendant  that  the  debt  still 
subsists,  will  not  render  him  liable,  when  more  than  six  years  have  elapsed  since 
the  cause  of  action  accrued  unless  they  are  unqualified  by  any  expressions,  in- 
consistent with  an  intent  of  payment.  This  doctrine  was  held  by  Marshall, 
C.  J.,  in  Wetzell  v.  Bussard,  11  Wheaton,  315,  and  still  more  strongly  laid 
down  in  the  subsequent  case  of  Moore  v.  Bank  of  Columbia,  6  Peters,  92.  It 
was  there  said,  that  to  take  a  case  out  of  the  statute,  "where  there  is  no 
express  promise,  there  must  be  an  unqualified  and  direct  admission  of  a  sub- 
sisting debt  which  the  party  is  willing  to  pay,"  and  that  if  there  are  "  ac- 
companying circumstances  which  repel  the  intention  to  pay,"  the  plain- 
tiff cannot  recover. 

The  same  law  has  been  repeatedly  and  unequivocally  declared  by  the 
Supreme  Court  of  Pennsylvania.  A  new  promise  is  held  necessary,  and  on 
the  maxim  "  expressum  facit  cessare  tacitum,"  the  fullest  acknowledgment 
of  a  debt  is  not  permitted  to  raise  a  legal  promise  of  payment,  when  accom- 
panied with  expressions,  inconsistent  with   the  existence  of  such  a  promise 


W  H  I  T  C  O  M  B      V.      W  II  I  T  I  N  G.  615 

Fries  V.  Boissclett,  9  Sergeant  <fc  Rawle,  128  ;  Church  v.  Fetcrow,  2  Perm. 
305;  Iloguu  V.  Bear,  5  Watts,  111;  Berghaus  v.  Calhoun,  6  Watts,  220; 
Allison  V.  James,  9  Watts,  381 ;  Hay  v.  Kramer,  2  W.  &  S.  138  ;  Gylkin- 
son  V.  Larue,  G  Id.  217. 

Where  only  one  debt  exists,  the  acknowledgment  will  be  presumed  to 
refer  to  it ;  Woodbridge  v.  Allen,  12  Met.  407 ;  but  where  there  are  two, 
it  must  be  shown  to  relate  to  that  on  which  the  suit  is  brought,  although  it 
need  not  specify  its  amount;  Davis  v.  Steiner,  2  Harris,  275;  Clarke  v. 
Butcher,  9  Cowen,  674.  And  when  one  part  of  the  demand  is  barred  by  the 
statute,  and  the  other  not,  it  must  appear  to  refer  to  the  former  rather  than 
the  latter;  Morgan's  adm'rs  v.  Walton,  4  Barr,  321.  It  must  be  present 
and  immediate  in  its  nature,  and  not  merely  an  expression  of  hope,  or 
expectation  for  the  future.  Thus,  a  promise  to  make  an  arrangement  to  pay 
a  debt,  will  not  rebut  a  plea  of  the  statute,  because  it  shows  that  the  defen- 
dant, instead  of  being  willing  to  meet  the  debt  as  it  stands,  contemplates 
paying  it  in  some  other  form  or  manner  not  yet  determined  on.  The  Ken- 
sington Bank  v.  Patton,  2  Harris,  479;  Oakes  v.  Mitchell,  15  Maine,  360. 
And  the  admission  must  not  only  be  unqualified  in  itself,  but  there  must  be 
nothing  in  the  attendant  acts  or  declarations  of  the  defendant  to  qualify  it, 
or  rebut  the  inference  of  willingness  to  pay,  to  which  an  unqualified  admis- 
sion naturally  and  primarily  gives  rise.  Thus,  the  statement  of  a  debt  in 
a  petition,  for  the  dischai'ge  of  an  insolvent  has  been  held  not  to  take  it  out 
of  the  statute,  because  the  circumstances  under  which  the  statement  is  made, 
are  inconsistent  with  a  present  purpose  of  payment;  Christy  v.  Fleming- 
ton,  10  Barr,  129  ;  although  such  an  acknowledgment  may  be  used  to  shew 
the  existence  of  the  debt,  and  other  evidence  given  to  prove  the  defen- 
dant's willingness  to  pay  it ;  Woodbridge  v.  Allen.  And  when  one 
item  is  admitted,  at  a  meeting  held  for  the  purpose  of  stating  and  set- 
tling an  account,  which  is  not  stated  or  settled,  the  admission  will  be  quali- 
fied by  the  purpose  for  which  it  is  made,  and  will  not  be  evidence  of  a  new 
promise,  in  a  suit  brought  for  that  particular  item.  Nixon  v.  Brownfield, 
2  Harris,  319. 

The  law  is  the  same  way  in  most  of  the  other  states  of  the  Union,  and  there 
can  be  no  recovery  in  cases  barred  by  the  statute,  without  such  an  acknow- 
ledgment of  the  obligation  of  the  defendant,  as  to  constitute  a  new  cause  of 
action,  when  the  suit  is  brought  in  debt,  or  raises  a  new  promise  by  implica- 
tion, when  it  is  in  assumpsit.  Cromwell  v.  Buckman,  7  Blackford,  537 ; 
llobbins  v.  Farley,  2  Strobhart,  348  ;  Dickinson  v.  Conway,  5  Georgia,  486; 
M'Lellan  v.  Albee,  17  Maine,  184;  Pray  v.  Garcelon,  id.  145;  Porter  v. 
Hill,  4  Greenleaf,  41 ;  Perley  v.  Little,  3  Greenleaf,  97 ;  Cross  v.  Conner, 
14  Vermont,  398;  Phelps  v.  Stewart,  12  Vermont,  263  :  Exeter  Bank  v. 
Sullivan,  6  New  Hampshire,  132 ;  Tillet  v.  Lindsay,  6  Marshall,  337; 
E.'cecutor  of  Head  v.  Executor  of  Manners,  5  Marshall,  209 ;  Harrison  v. 
Handlcy,  1  Bibb,  443  ;  Gray  v.  Lawridge,  2  Bibb,  285.  In  Vermont, 
however,  the  courts  still  adhere  to  the  interpretation  which  was  given  to  the 
statute  in  many  of  the  older  cases,  and  hold  that  the  efi'ect  of  an  admission 
of  the  debt,  cannot  be  restrained  by  any  qualification  attached  to  it  by  the 
debtor;  Cummings  v.  Gassett,  19  Vermont,  308  ;  Williams  v.  Phiuney, 
16  Id.  207. 

The  necessity  for  a  new  promise,  or   of  evidence  whence  a  new  promisfe 


U 16  S  M  I  T  II '  S     L  E  A  D  I  N  G     C  A  S  E  S. 

may  be  iuiplicd,  for  the  purpose  of  avoiding  the  plea  of  the  statute  of  limi- 
tations, is  as  well  settled  in  England  as  in  this  country  :  and  although  it 
is  admitted,  that  a  distinct  and  unambiguous  acknowledgment  of  the  debt 
will  suffice;  Gardner  v.  M'Mahon,  3  Q.  B.  561;  Walter  v.  Lacy,  1  M.  & 
G.  54;  Dodson  v.  Mackey,  8  A.  &  E.  225;  yet  it  has  been  determined 
that  there  can  be  no  recovery,  if  the  acknowledgement  be  accompanied  with 
any  qualification,  tending  to  rebut  the  implication  of  a  promise  of  payment, 
which  would  otherwise  arise.  Eoutlcdgc  v.  Ramsay,  8  A.  &  E.  221 ; 
Spong  V.  Wright,  9  M.  &  W.  629  ;  Hart  v.  Prendergast,  14  Id.  741 ;  Cripps 
V.  Davis,  12  Id.  159;  Morrell  v  Frith,  3  Id.  402.  The  operation  and  ex- 
tent of  the  rule  in  that  country,  will  best  appear  from  the  language  held  by 
Lord  Denman  in  deciding  the  case  of  Bateman  v.  Pinder,  3  Q.  B.  574  ; 
where  an  attempt  was  made  on  the  authority  of  Yea  v.  Fouraker,  2  Burr. 
1009,  to  sustain  a  traverse  of  a  plea  of  the  statute,  by  evidence  of  a  pay- 
ment by  the  defendant  since  action  brought.  ^'  This  case,  when  we  con- 
sider it,"  said  his  Lordship, ''is  very  clear.  Yea  v.  Fouraker  is  acknow- 
ledged as  an  authority  in  Thornton  v.  Illingworth  ;  but  the  judges  distin- 
guish it  from  that  case.  Yea  v.  Fouraker  was  rightly  decided,  if,  as  Bay- 
ley  and  HoLROYD,  Js.,  lay  it  down  in  the  subsequent  case,  the  statute  of 
limitations  takes  eifect  upon  the  ground  that  after  a  certain  time,  it  shall  be 
presumed,  that  the  debt  has  been  discharged.  For,  if  that  be  so,  an  acknow- 
ledgment made  at  any  time,  will  rebut  that  presumption.  But  in  Tanner 
v.  Smart,  6  B.  &  C.  602,  the  earlier  eases  were  revised,  and  the  doctrine 
as  to  presumption  of  payment  repudiated ;  and  it  was  held,  that  to  prevent 
the  operation  of  the  statute,  a  distinct  promise  was  necessary.  That  promise 
must  be  before  action  brought." 

It  is  a  necessary  consequence  of  this  doctrine,  that  there  can  be  no  reco- 
very on  a  replication  to  a  plea  of  the  statute,  unless  the  replication  itself, 
and  the  evidence  given  under  it,  accord  with  the  averments  made  in  the 
declaration.  For  no  rule  is  better  established  than  that,  unless  the  sub- 
sequent pleadings  and  proof,  agree  with  the  allegations  made  in  the  first 
instance,  the  action  must  fail,  on  the  ground  either  of  departure  or  variance. 
Hence,  whenever  the  original  cause  of  action  is  special,  and  the  new  pro- 
mise general,  or  when  the  new  promise  is  special,  and  the  original  cause  of 
action  general,  the  statutory  disability  can  only  be  overcome  by  resorting  to 
a  declaration,  framed  to  meet  the  case,  and  setting  forth  the  liability  of  the 
defendant  in  its  ultimate,  and  not  in  its  original  aspect.  Thus,  a  subsequent 
promise  for  the  payment  of  money,  cannot  be  given  in  evidence  when  issue 
is  joined  on  a  plea  of  the  statute,  to  a  declaration  on  an  agreement  to  build 
a  house,  or  deliver  merchandize ;  and  a  promise  for  the  delivery  of  merchan- 
dise is  inadmissible,  when  the  cause  of  action  declared  on  is  a  debt ;  Reeves 
V.  Hearne,  1  M.  &  W.  323;  Earle  v.  Oliver,  2  Exchequer,  71;  Short  v. 
McCarty,  3  B.  &  Aid.  626 ;  Whitehead  v.  Howard,  2  Brod.  &  Bing.  372 ; 
Wetzell  V.  Bussard,  11  Wheaton,  315.  If  the  plaintifi"  can  recover  at  all 
under  such  circumstances,  it  can  only  be  by  setting  forth  the  antecedent 
transaction  as  the  consideration,  and  the  subsequent  promise  as  founded 
upon  it.  This  is  strikingly  illustrated  by  the  case  of  Lechmere  v.  Fletcher, 
1  Cr.  &  M.  23.  The  declaration  recited  a  joint  liability  on  the  part  of  the 
defendant  and  one  FuUjamcs,  for  a  debt  due  by  them  jointly  more  than  six 
years  before  action  brought,  and  then  averred  that  this  liability  had  been 


W  H  I  T  C  O  M  B     V.     W  n  I  T  I  N  G.  C17 

barred  by  the  statute  of  limitations,  and  that  the  defendant  bad  promised 
to  pay  bis  proportion  of  tbe  debt  in  consideration  of  the  premises.  It  ap- 
peai-ed  in  evidence,  that  subsequently  to  this  promise,  tbe  plaintiff  bad  sued 
Fulljames  and  tbe  defendant  upon  tbe  original  contract,  and  obtained  a  ver- 
dict and  judgment  against  tbe  former  on  tbe  general  issue,  but  tbat  a  verdict 
and  judgment 'bad  been  entered  for  tbe  latter,  on  a  plea  of  tbe  statute  of 
limitations.  It  was,  bowever,  decided  by  tbe  court,  not  only  tbat  tbe  de- 
claration on  tbe  new  promise  was  good,  but  tbat  it  was  not  barred  by  wbat 
took  place  in  tbe  first  suit,  wbicb  was  beld  to  bave  been  for  a  different  cause 
of  action. 

It  bas  been  said  tbat  an  acknowledgment  of  a  debt  bai-red  by  tbe  statute, 
revives  tbe  debt,  but  does  not  create  a  new  cause  of  action  ;  Dean  v.  Hewitt, 
5  Wend.  257;  Carsbore  v.  Huyk,  6  Barbour's  S.  C,  583;  but  tbe  better 
view  seems  to  be,  that  although  the  old  debt  is  revived,  there  is  a  new  cause 
of  action.  Many  causes  of  action  may,  unquestionably,  be  founded  upon 
the  same  consideration,  as  in  the  common  case  of  a  sale  on  credit,  for  tbe 
notes  of  the  vendee,  when  the  vendor  may  sue  on  tbe  notes  if  given,  and  if 
not,  for  tbe  default  of  tbe  purchaser  in  not  giving  them,  and,  finally,  for 
goods  sold  and  delivered  at  tbe  expiration  of  the  credit.  But  a  recovery  for 
a  demand  barred  by  the  statute,  is  always  upon  a  new  cause  of  action,  although 
this  is  not  apparent  where  the  declaration  is  in  debt  or  assumpsit  on  an  exe- 
cuted consideration,  because  tbe  form  of  pleading  is  so  general  as  to  admit 
of  any  proof  which  shows  an  obligation  founded  on  tbe  consideration,  and 
between  the  parties,  set  forth  on  the  declaration.  Thus,  when  the  plaintiff 
declares  on  wbat  are  commonly  called  the  money  counts,  be  is  not  restricted 
as  to  time  or  amount,  and  may  recover  on  proving  any  debt  corresponding 
with  tbat  declared  on.  Hence,  as  proving  a  new  promise  or  acknowledg- 
ment within  six  years,  introduces  no  new  consideration,  and  merely  estab- 
lishes tbe  existence  of  a  liability,  answering  to  that  averred  in  tbe  plead- 
ings, it  cannot  be  regarded  as  a  variance  from  tbe  declaration.  Although 
a  new  promise  is  said  to  be  necessary  to  remove  tbe  bar  of  tbe  statute, 
yet  this  promise  may  be  implied,  and  when  tbe  declaration  is  general,  an 
express  promise  is  only  admissible  for  tbe  purpose  of  proving  an  im- 
plied promise.  And  instead  of  saying  tbat  there  must  be  a  new  pro- 
mise to  remove  the  bar  of  the  statute,  it  is  more  correct  to  say,  that  tbe 
evidence  must  be  such  that  the  law  can  imply  a  new  promise,  when  the 
form  of  action  is  such  as  to  render  a  promise  material.  A  declaration  in 
debt  on  an  executed  consideration,  need  only  allege  the  existence  of  the  con- 
sideration and  of  the  legal  obligation  to  wbicb  it  gives  rise.  And  such  a  de- 
claration may  good,  without  tbe  allegation  of  a  promise,  not  only  in  debt,  but 
even  in  assumpsit;  for  as  tbe  promise  is  an  implication  of  law,  tbe  omission 
to  allege  it  is  a  mere  irregularity  in  form,  wbicb,  unless  on  special  demurrer, 
will  be  supplied  by  legal  intendment.  Hence,  any  subsequent  acknow- 
ledgment of  a  debt,  whether  in  the  form  of  an  express  promise,  or  of  a 
mere  acknowledgment  within  six  years,  will  sustain  an  action  of  indebitatus 
assumpsit,  by  showing  a  liability  corresponding  with  tbat  alleged  in  the 
declaration,  and  thus  enabling  tbe  law  to  imply  a  promise  within  the  period 
fixed  by  the  statute.  Nothing,  therefore,  is  better  settled,  than  that  an 
acknowledgment  may  be  given  in  evidence  as  a  revival  of  tbe  debt,  under 
the  common  counts  in   assumpsit,  and  without   being  specially  pleaded; 


618  SMITU'.^     LEADING     CASES. 

Thompkins  v.  13rowu,  1  Denio,  247;  Wilkins  v.  Stevens,  4  Barbour,  1C8; 
Carshore  v.  Huyk,  6  id.  683. 

The  rule  as  to  variance,  is,  however,  as  well  established  with  reference  to 
declarations  on  executed  considerations,  and  promises  implied  by  law,  as  to 
any  of  the  other  forms  of  pleading  or  action,  and  no  acknowledgment  will  be 
admissible,  which  does  not  show  a  liability  corresponding  with  that  alleged  in 
the  declaration.  It  must,  therefore,  be  based  upon  the  same  consideration, 
and  between  the  same  parties.  Thus,  Lord  Holt  decided,  in  Green  v.  Crane, 
2  Lord  Raymond,  1101,  that  an  acknowledgment  made  within  six  years  to 
an  executor,  could  not  be  given  in  evidence  under  a  declaration  averring  a 
promise  to  the  testator.  This  decision  was  followed  many  years  afterwards, 
by  the  Court  of  Common  Pleas,  in  Ward  v.  Hunter,  6  Taunton,  210.  It 
was  held,  in  like  manner,  in  Jones  v.  Moore,  5  Binney,  577,  and  Lund  v. 
Jamison,  4  M'Cord,  93,  that  an  issue  joined  under  a  plea  of  the  statute  to 
a  declaration  averring  a  promise  to  the  testator,  could  not  be  supported  by 
an  acknowledment  to  his  personal  representatives.  It  necessarily  follows, 
from  the  doctrine  held  in  these  cases,  that  the  converse  of  the  proposition 
which  they  establish  is  also  true,  and  that  an  acknowledgment  made  by  an 
executor,  cannot  be  pleaded  or  given  in  evidence  in  answer  to  a  plea  of 
non  assumpsit,  infra  sex  annos  to  a  declaration,  setting  forth  a  promise 
by  the  testator,  without  giving  rise  to  a  departure  or  variance ;  Thompson 
v.  Peters,  12  Wheaton,  5G5 ;  Benjamin  v.  De  Groot,  1  Denio,  151. 

The  difficulty  which  might  otherwise  arise  from  this  course  of  decision, 
is  obviated  by  introducing  a  count  averring  a  promise  to  the  executor,  when- 
ever it  is  meant  to  rely  on  an  acknowledgment  made  to  him,  and  by  declar- 
ing on  a  promise  by  the  executor,  when  it  is  intended  to  use  his  engagements 
or  admissions  for  the  purpose  of  charging  the  estate  of  the  testator;  The 
executors  of  the  Duke  of  Marlborough  v.  Widmore,  2  Strange,  890  ;  Martin 
v.  Williams,  17  Johnson,  831.  No  doubt  exists  as  to  the  validity  of  this 
mode  of  pleading,  nor  that  when  it  is  resorted  to,  acknowledgments  of  the 
debt  may  be  given  in  evidence  without  a  variance,  whether  made  before  or 
after  the  death  of  the  debtor,  and  whether  they  proceed  from  himself  or 
from  his  personal  representatives. 

In  many  of  the  earlier  and  some  of  the  more  recent  decisions,  an  acknow- 
ledgment by  an  executor  or  administrator,  has  been  held  to  have  the  same  effect 
in  removing  the  bar  of  the  statute,  as  if  it  had  been  made  by  the  debtor  in 
his  lifetime  ;  Whittaker  v.  Whittaker,  6  Johnson,  112;  Lawson  v.  Lambert, 
7  Halsted,  247;  Chambers  v.  Fennemore,  4  Harrington,  168.  But  the 
weight  of  authority  seems  to  be  in  favour  of  the  position,  that  although  the 
acknowledgment  of  a  debt  by  the  debtor,  will  justify  the  implication  of  a 
promise  to  pay  it,  and  constitute  a  new  cause  of  action,  yet  that  such  is 
not  the  case,  when  the  acknowledgment  is  of  the  debt  of  another,  and  the 
party  who  makes  it  is  acting  in  a  fiduciary  capacity  as  a  trustee  or  executor, 
and,  consequently,  that  an  admission  of  a  debt  by  the  personal  representa- 
tives of  a  deceased  debtor,  will  not  deprive  them  of  the  right  to  resort  to 
the  statute  for  protection  ;  Oakes  v.  Mitchell,  15  Maine,  360 ;  Executors  of 
Head  v.  Administrators  of  Manners,  5  Marshall,  263  ;  TuUock  v.  Dunn, 
Ryan  &  Moody,  478.  In  the  latter  case  it  was  ruled  by  Abbot,  C  J.  in 
an  action  against  two  executors,  on  promises  averred  to  have  been  made  by 
them  in  their  representative  capacity,  that  evidence  of  an  unqualified  ac- 


WHIT  CO  MB*    V.     WHITING.  619 

knowledgment  by  both,  and  an  express  promise  by  one,  would  not  entitle 
the  plaintiff  to  a  verdict,  on  an  issue  joined  under  a  plea  of  the  statute  of 
limitations.  The  point  raised  in  these  cases  did  not,  however,  turn  on  the 
power  of  the  personal  representatives  of  a  debtor,  to  remove  the  bar  of  the 
statute  of  limitations  by  an  express  promise  for  the  payment  of  the  debt, 
but  merely  on  whether  their  acknowledgments  or  admissions,  were  to  be  placed 
on  the  same  footing  with  those  of  persons  acting  in  their  own  right,  and 
whether  an  obligation  binding  the  estate  could  be  created  by  the  act  of  one 
of  several  executors  or  administrators,  or  required  the  concurrence  of  all. 
On  both  these  points,  the  decision  of  Lord  Tenterden,  in  Tullock  v.  Dunn, 
is  supported  by  the  language  held  by  Parke,  Baron,  in  Scholey  v.  Walton, 
10  M.  &  W.  510,  512,  where  it  was  said,  that  Tullock  v.  Dunn  was  founded 
in  good  sense,  and  ought  to  be  followed.  And  in  the  recent  case  of  The 
Cayuga  Bank  v.  Bennett,  5  Hill,  236,  it  was  said  by  Cowen,  J.,  that  if 
the  acts  or  admissions  of  one  of  several  executors  were  sufficient  to  remove 
the  bar  of  the  statute  of  limitations,  it  could  only  be  as  an  exception  to  the 
general  rule,  which  renders  them  inadmissible  in  evidence  against  the  estate, 
unless  made  by  all,  and  it  was  therefore  decided,  that  in  an  action  brought 
against  three  executors  on  a  promissory  note  made  by  the  testator,  a  pro- 
mise to  pay  by  two  would  not  support  a  recovery,  nor  even  enure  as  evidence 
that  due  notice  had  been  given,  of  the  dishonour  of  the  instrument. 

It  is,  notwithstanding,  held  in  general,  that  an  express  promise  by  one 
of  several  executors,  will  take  the  case  out  of  the  statute  as  against  all. 
Johnson  v.  Beardslee,  15  Johnson,  3 ;  Briggs  v.  Ex'or  of  Starkie,  2 
Constitutional  K.  Ill;  Hand's  Ad'ors  v.  Lee,  4  Monroe,  46.  And  in 
Massachusetts,  the  distinction  between  a  promise  and  acknowledgment  by 
an  executor  is  denied,  and  either  held  sufficient  to  charge  the  estate; 
Baxter  v.  Penniman,  8  Mass.  133.  In  Pennsylvania,  on  the  other  hand,  the 
courts  have  gone  still  further  than  the  ruling  of  Lord  Tenterden  in  Tullock 
V.  Dunn,  and  decided  that  an  express  undertaking  by  one  or  all  of  the  exe- 
cutors of  a  deceased  debtor,  will  not  deprive  them  of  the  right  to  set  up  the 
bar  of  the  statute,  as  an  answer  to  a  subsequent  action ;  Fritz  v.  Thomas, 
1  Wheaton,  71;  lleynolds  v.  Hamilton,  7  Watts,  426;  Forney  v.  Benedict, 
5  Barr,  225.  The  law  was  held  the  same  way  in  Peck  v.  Botsford,  7  Conn. 
172.  But  it  does  not  appear  that  the  case  of  Thompson  v.  Peters,  12 
Wheaton,  565,  which  has  sometimes  been  cited  as  establishing  the  same 
proposition,  goes  further  than  the  point  that  a  promise  by  an  executor,  cannot 
be  given  in  evidence  without  a  variance,  under  a  count  setting  forth  a  pro- 
mise by  the  testator. 

Amidst  this  discordancy  of  decision,  some  doubt  must  exist  as  to  what  is 
correct  in  principle.  The  courts  of  Pennsylvania  appear  to  entertain  the 
opinion,  that  as  the  law  will  not  raise  an  implied  promise  for  the  payment 
of  a  debt  barred  by  the  statute,  an  express  promise  can  have  no  greater 
effect,  because  such  a  promise  is  not  binding  without  proof  of  assets,  and 
then  only  on  the  executor  personally,  and  not  on  the  estate.  It  is  un- 
doubtedly true,  that  an  express  promise  by  an  executor  for  the  payment  of 
a  debt  due  by  the  estate,  is  not  binding,  unless  he  has  assets  at  the  time 
when  it  is  made;  and  that  the  judgment  in  any  suit  based  upon  it,  will 
be  against  his  own  goods,  and  not  against  those  of  the  testator.  Rann  v. 
Hughes,  7   Term,  350;  Trevinian  v.  Howell,  Croke  Eliz.  91;  1   Bolle's 


620  smith's    leading    cases. 

Abridg.  24,  30.  But  it  does  not  necessarily  follow,  that  because  a  promise 
b}'  an  executor  cannot  take  efFecl  as  an  express  promise,  and  thus  give  rise  to 
a  personal  liability  without  some  new  consideration,  it  cannot  revive  the  obli- 
gation of  a  debt  which  has  been  barred  by  the  statute,  and  thus  sustain  a 
suit  founded  on  an  implied  promise  for  its  payment.  It  is  held  in  Penn- 
sylvania, that  although  a  promise  by  an  executor  to  discharge  a  debt  which 
has  been  barred,  is  not  binding,  he  may,  notwithstanding,  dischai'ge  it  if  he 
think  fit,  and  claim  a  credit  for  the  payment  in  his  account.  And  this 
seems  to  be  a  concession  of  the  whole  question,  for  it  is  diflficult  to  hold 
either  that  such  a  credit  can  be  claimed  for  the  payment  of  a  debt,  which  is 
not  legally  valid,  or  that  the  executor  can  give  the  debt  validity  in  one  way 
and  not  in  another. 

The  cases  of  Green  v.  Crane,  and  Jones  v.  Moore,  proceed  on  the  ground 
that  to  take  a  case  out  of  the  statute,  the  acknowledgment  must  be  such  as 
to  justify  the  implication  of  a  new  promise,  and  give  rise  to  a  new  cause  of 
action,  although  founded  on  the  old  consideration.  For,  if  an  acknowledgment 
be  regarded  merely  as  evidence,  and  not  as  entering  into  and  constituting 
the  cause  of  action,  it  is  immaterial  to  whom  it  is  made,  provided  it  proceed 
from  the  debtor;  Whitney  v.  Bigelow,  4  Pick.  110,  113;  while  a  different 
rule  prevails  when  it  is  relied  on  as  giving  a  right,  and  not  merely  as  proving  it. 
Whether  an  acknowledgment  of  a  debt  be  made  to  the  party  interested,  or 
to  a  mere  stranger,  the  law  will  imply  an  obligation  to  the  person  to  whom 
the  debt  is  due  at  the  time  of  the  acknowledgment,  but  this  obligation  must 
obviously  follow  the  right  on  which  it  is  founded.  The  acknowledgment 
need  not,  therefore,  be  made  directly  to  the  creditor;  Soulden  v.  llense- 
laer,  9  Wend.  293;  Carshore  v.  Huyck,  6  Barbour,  583;  Watkins  v. 
Stevens,  4  id.  168 ;  Oliver  v.  Gray,  1  Har.  &  Gill,  204  ;  Mounstephen  v. 
Brook,  .5  B.  &  A.  141,  "but  it  cannot  take  effect  as  a  promise  in  his  favour 
unless  he  is  in  existence.  This  distinction  has  been  disregarded  in  Massa- 
chusetts, where  the  courts  hold  that  admissions  made  in  the  lifetime  of  the 
debtor,  and  after  his  death,  stand  on  the  same  footing,  and  are  equally 
admissible  in  evidence  whether  the  declaration  proceed  on  a  promise  to  him- 
self, or  to  his  personal  representatives.  Baxter  v.  Penniman,  8  Mass.  133  ; 
Emerson  v.  Thomas,  16  id.  41. 

The  general  doctrine  that,  in  order  to  sustain  a  traverse  of  a  plea  of  the 
statute,  the  evidence  must  show  a  cause  of  action  within  six  years,  corres- 
ponding with  that  laid  in  the  declaration,  was  applied  in  Atkins  v.  Tregold, 
2  B.  &  C.  225,  to  a  suit  against  the  executors,  of  one  of  the  makers  of  a  joint 
and  several  promissory  note.  The  declaration  contained  a  variety  of  counts^ 
in  some  of  which  the  promise  was  stated  as  made  by  the  testator,  in  others  by 
the  executors,  and  the  plaintiff  endeavoured  to  support  the  issue  on  his  part, 
by  proving  a  part  payment  within  six  years  by  one  of  the  executors.  But  as 
the  party  who  made  the  payment,  was  one  of  the  original  promissors  on  the 
note,  and  was  shown  to  have  made  it  on  his  own  account,  and  not  on  that  of 
the  testator,  it  was  held  inadmissible  by  the  court,  for  the  purpose  either  of 
proving  a  promise  by  the  testator  or  by  the  executors.  The  law  was  held  the 
same  way  in  Lane  v.  Doty,  4  Barbour  S.  Ct.  530.  And  in  Slater  v.  Lawson, 
1  B.  &  A.  396,  a  payment  by  the  executor  of  a  deceased  contractor,  was 
held  not  to  take  the  case  out  of  the  statute,  as  against  another  party  liable  on 
the  same  contract.     A  similar  point  was  decided  in  Hathaway  v.  Haswell, 


AV  II  I  T  C  0  M  B    V.     W  n  I  T  I  N  G.  621 

9   Pick.  42,  although  the    reasoning  of   the   court  was  in   some  respects 
different. 

The  same  principles  were  applied  in  another  form  in  the  case  of  Pittam 
V.  Foster,  1  1>.  &  C.  248,  where  suit  was  brought  against  a  husband  and 
wife,  and  one  Foster,  on  a  promise  made  by  Foster  and  the  wife  before  the 
marriage ;  and  it  was  decided  that  a  promise  made  by  Foster  after  the  mar- 
riage, was  not  an  answer  to  a  plea  of  the  statute,  by  the  other  defendants. 
The  court  held  that  the  effect  of  such  a  promise,  must  necessarily  be  de- 
pendent on  the  situation  and  powers  of  the  parties  at  the  time  when  it  was 
made;  and  that  while  it  would  be  void  as  the  promise  of  the  wife,  it  would 
produce  a  variance,  if  treated  as  that  of  the  husljand.  And  it  is  a  necessary 
consequence  of  this  decision,  that  an  express  undertaking  by  a  husband, 
cannot  be  given  in  evidence,  under  an  issue  joined  on  a  plea  of  the  statute, 
to  a  declaration  on  promises  made  by  the  wife  before  marriage.  Kline  v. 
Guthart,  2  Penna.  R.  290;  Bonnell  v.  Taintor's  Ex'ors,  5  Conn.  273; 
Ridgway  v.  English,  2  Zabriskie,  409 ;  Powers  v.  Southgate,  15  Vermont, 
471. 

It  is  equally  well  settled,  that  although  a  part  payment  of  a  debt  admits 
its  existence  as  a  subsisting  obligation,  and  will  therefore  be  sufficient  to 
take  it  out  .of  the  statute,  yet  that  it  has  no  greater  effect  than  any  other  un- 
qualified acknowledgment,  and  must,  consequently  be  connected  by  sufficient 
evidence,  both  with  the  persons  charged  in  the  suit,  and  the  claim  sought  to 
be  enforced.  Tippets  v.  Hearne,  1  C  M.  &  R.  253  ;  Burn  v.  Boulton,  2  C. 
B.  476  ;  Mills  v.  Fouke,  4  Bing,  N.  C.  76  :  Wainman  v.  Kynman,  1  Exche- 
quer, 118.  The  law,  on  this  head,  was  distinctly  defined  by  Lord  Abinger 
in  Waugh  v.  Cope,  6  M.  &  W.  824,  and  the  rule  adopted  in  all  the  courts 
declared  to  be,  <'  that  the  payment  must  appear,  either  by  the  declarations 
or  acts  of  the  party  making  it,  or  by  the  appropriation  of  the  party  in  whose 
favour  it  is  made,  to  be  mpart  payment  of  the  debt  in  question.  If  it  stands 
ambiguous,  whether  it  be  part  payment  of  an  existing  debt,  or  payment 
generally,  without  admission  of  any  greater  debt  as  due  to  the  party  :  if  it 
may  have  been  made  by  the  party  paying  in  reduction  of  an  account  due  to 
himself,  or  intended  to  satisfy  the  whole  of  the  demand  against  him,  then  it 
is  not  sufficient  to  bar  the  statute  of  limitations."  This  opinion  was  deli- 
vered subsequently  to  the  statute  9  Geo.  4,  c.  14;  but  that  enactment 
changes  the  medium  of  the  proof  of  payment,  and  not  its  effect  or  operation 
when  proved. 

The  extent  and  bearing  of  the  doctrine  thus  held,  is  illustrated  by  the 
case  of  Linsell  v.  Bonsor,  2  Bing.  N.  C.  241.  The  defendant  had  there 
given  a  sum  of  money  to  a  party  acting  as  his  agent,  with  instructions  not 
to  pay  it  to  the  plaintiff,  unless  the  latter  would  receive  it  in  full  of  the 
demand;  but  the  agent  disregarded  his  instructions,  and  took  a  receipt  at 
the  time  of  the  payment,  in  which  it  was  stated  to  be  merely  on  account. 
Under  these  circumstances  it  was  held,  thai  as  there  was  no  intention  on 
the  part  of  the  defendant  to  admit  his  liability  for  the  rest  of  the  debt,  and 
the  authority  which  he  gave  had  been  exceeded,  the  payment  could  not  be 
relied  on  as  evidence,  for  the  purpose  of  taking  the  case  out  of  the  statute. 
Upon  the  same  general  principle,  it  is  necessary  not  only  to  show  a  payment 
or  acknowledgment  of  the  debt  by  the  defendant,  but  that  it  was  made  by 
him  in  the  character  in  which  he  is  sued  ;  and  consequently,  in  an  action 


622  SMITIl'S    LEADING     CASES. 

agninst  an  executor,  the  acts  and  admissions  relied  on  to  take  the  case  out 
of  the  statute,  must  appear  to  have  been  in  his  representative  character  j 
Sc'holey  v.  AValton,  12  M.  &  W.  510  ;  Larrason  v.  Lambert,  7  Ilalsted, 
255.  And  when  the  defendant,  on  being  applied  to  for  the  interest  of  the 
debt,  made  a  part  payment,  but  said  at  the  same  time  that  he  did  not  owe 
the  principal  and  would  not  pay  it,  it  was  held  that  the  payment  was  not 
conclusive,  and  that  it  should  have  been  left  to  the  jury  to  determine 
whether  his  disclaimer  was  serious,  or  only  spoken  in  jest ;  Wuiuman  v. 
Kynman. 

The  interpretation  given  to  the  statute  9  Geo.  4,  c.  19,  in  Willis  v.  Newnham, 
(supra Gil,)  has  been  confirmed  by  several  subsequent  decisions;  Maghee  v. 
O'Neill,  7  M.  &  W.  531  /  Bayley  v.  Ash  ton,  4  Per.  &  D.  214.  But  it  has  not- 
withstanding been  intimated,  that  the  decision  there  made,  went  further  than 
the  courts  would  be  disposed  to  go  again,  were  the  matter  res  integra.  And 
in  \\''illiams  v.  Godley,  9  Metcalf,  482,  where  the  same  point  arose  under  the 
rt:vised  statutes  of  Massachusetts,  which  contain  a  provision  similar  to  the  9 
(leo.  4,  it  was  decided  that  as  a  writing  is  not  made  necessary  to  the  proof  of 
a  part  payment,  it  may  be  established  by  the  admissions  of  the  defendant, 
although  such  admissions  are  no  longer  admissible  as  a  direct  acknowledg- 
ment of  the  debt.  The  same  construction  has  been  given  to  a  similar  legis- 
lative enactment  by  the  courts  of  Maine;  Sibley  v.  Lumbert,  30  Maine, 
253.  And  as  an  admission  of  payment,  is  much  less  likely  to  be  misconstrued 
or  mistated  than  an  admission  of  the  debt  itself,  there  is  no  reason  to  ques- 
tion the  soundness  of  this  interpretation.  The  statute  law  of  Mississippi, 
however,  goes  further,  and  renders  a  payment  however  proved,  insufficient, 
without  an  express  promise;  Smith  v.  Westmoreland,  12  Smedes  &  Mar- 
shall, 663;  Davidson  v.  Marshall,  5  Id.  564.  It  was  held  in  Eastwood  v. 
Saville,  9  M.  &  W.  618,  on  the  authority  of  Willis  v.  Newnham,  that  an 
endorsement  of  part  payment  on  the  back  of  the  instrument,  on  which  suit 
is  brought,  is  not  evidence  to  take  the  case  out  of  the  statute,  even  when  in 
the  handwriting  of  the  defendant,  unless  it  is  also  signed  by  him.  It  is, 
however,  well  settled  in  most  of  the  States  of  this  country,  on  general  prin- 
ciples, as  it  was  in  England  before  the  passage  of  the  9  Geo.  4,  that  an 
endorsement  on  a  note  in  reduction  of  the  debt,  may  be  submitted  to  the 
jury  as  a  recognition  of  its  existence,  whether  such  endorsement  be  made  by 
the  plaintiff  or  the  defendant;  in  the  latter  case  as  an  admission  of  the  fact 
which  it  sets  forth.  Porter  v.  Blood,  5  Pick.  54,  and  in  the  former,  as  an 
entry  against  interest,  and  consequently  admissible  in  favour  of,  as  well  as 
against  the  person  by  whom  it  is  made.  Roseboom  v.  Billington,  17  John- 
son, 182;  Clapp  V.  Ingersoll,  11  Maine,  83  ;  Coffin  v.  Buckraan,  12  Id. 
471 ;  The  Trustees  v.  Osgood,  21  Id.  176;  Adams  v.  Seitzinger,  1  W.  &  S. 
243.  In  order,  however,  to  give  such  an  endorsement  by  the  plaintiff,  the 
character  of  an  entry  against  interest,  it  must  appear  to  have  been  made 
before  the  bar  of  the  statute  attached  to  the  instrument;  Cremer's  estate,  5 
W.  &  S.  331 ;  Howe  v.  Hathaway,  20  Maine,  345,  for  otherwise  he  would  be 
able  to  manufacture  evidence  for  himself.  And  in  Whitney  v.  Bigelow,  4 
Pick.  113  ;  Conclly  v.  Pierson,  4  Gilmau,  108;  and  Taylor  v.  McDonald, 
2  Constitutional  R.,  178,  a  naked  endorsement  of  payment  in  the  handwrit- 
ing of  the  plaintiff,  was  held  inadmissible  in  his  favour  for  any  purpose. 

The  cases  cited  above,  fully  establish  that  when  the  original  cause  of  action 


W  H  I  T  C  0  M  B     V.      WHITING.  623 

is  barred  by  the  stcatute,  the  plaintiff  cannot  recover  without  proving  a  new 
cause  of  action  within  six  years,  consistent  with  that  set  forth  in  the  decla- 
ration, and  between  the  same  parties ;  yet  in  Whitcomb  v.  Whiting,  a  pay- 
ment by  one  party,  was  held  to  establish  the  liability  of  another,  without 
proof  of  authority  or  ratification  as  against  the  person  thus  charged.  But 
in  truth,  this  decision  did  not  proceed  upon  the  doctrine,  that  the  statute 
applies  unless  a  cause  of  action  is  shown  within  six  years,  and  was  ad- 
judged upon  another  and  rival  notion,  that  the  statute  is  a  bar  to  the 
proof  of  the  cause  of  action,  rather  than  to  the  cause  of  action  itself,  and 
merely  raises  a  presumption  of  satisfaction  or  payment,  which  may  be 
rebutted  by  proper  evidence.  Of  course  under  this  doctrine,  any  proof  of 
the  existence  of  the  debt  within  six  years,  is  sufficient;  and  a  payment  by 
one  co-contractor,  is  evidence  whence  the  jury  may  find  that  the  debt  is  due 
and  unpaid  by  the  rest,  although  manifestly  insufficient  to  raise  a  promise  on 
their  part  for  its  payment.  Whitcomb  v.  Whiting  has  notwithstanding  been 
followed  in  a  great  number  of  subsequent  decisions,  and  no  rule  is  better 
established  in  England,  than  that  part  payment  by  one  of  several  joint 
debtors,  will  take  the  debt  out  of  the  statute  as  against  all.  It  is  evident, 
therefore,  that  the  statute  has  received  two  different  and  inconsistent  inter- 
pretations, and  that  while  proof  of  the  existence  of  the  debt  within  six  years, 
is  sufficient  under  the  one,  there  must  be  a  new  promise,  6r  a  new  cause  of 
action,  under  the  other.  The  courts  of  the  United  States  have  been  oblia:ed 
either  to  adopt  both  these  propositions,  or  to  choose  between  them.  Hence 
it  has  happened,  that  the  cases  differ  more  widely  on  the  point  involved  in 
Whitcomb  v.  Whiting,  than  upon  any  other  question  of  law,  and  that  there 
are  opposite  sets  of  determinations  in  the  different  states  of  this  country,  and 
even  in  the  same  state ;  in  one  of  which  the  authority  of  that  decision  has  been 
followed,  and  in  the  other  denied  and  overruled.  The  latter  course  has 
been  adopted  in  the  Supreme  Court  of  the  United  States,  in  New  Hamp- 
shire, South  Carolina,  Tennessee,  Indiana  and  Delaware,  and  until  recently 
in  Pennsylvania,  while  the  former  prevails  in  New  England  with  the  excep- 
tion of  New  Hampshire,  and  in  most  other  parts  of  the  Union. 

It  is  accordingly  held  in  the  states  last  referred  to,  that  the  acknowledg- 
ment of  a  debt  by  one  of  several  co-contractors,  will  remove  the  bar  of  the  sta- 
tute as  effectually  as  if  made  by  all.  Frye  v.  Barker,  4  Pick.  382  ;  Sigour- 
iiey  V.  Drury,  14  Id.  387;  Hunt  v.  Bridgham,  2  Id.  501;  Cady  v.  Shep. 
herd,  11  Id.  400;  Vinal  v.  Burrill,  10  Id.  40;  Ilsley  v.  Jewett,  2  Metcalf, 
168  ;  Getchill  v.  Held,  7  Maine,  26 ;  Pike  v.  Warren,  15  Id.  393  ;  Dinsmore 
v.  Diusmore,  21  Id.  453  ;  Shipley  v.  Waterhouse,  22  Id.  497  ;  Joslyn  v. 
Smith,  13  Vermont,  356;  Wheelock  v.  Dolittle,  18  Id.  441;  Bond  v. 
Lathrop,  4  Conn.  33;  Austin  v.  Bostwick,  9  Id.  562;  Shelton  v.  Cocke,  3 
Munford,  411;  Bock  v.  Fuller,  1  M'Cord,  541  ;  Davis  v.  Colemen,  7  Ire- 
dell, 424.  And  although  the  power  of  one  member  of  a  firm  to  bind  the 
rest,  terminates  in  all  other  particulars  by  the  dissolution  of  the  partnership, 
yet  it  is  held  to  survive  as  to  this,  because  although  the  partnership  may  bo 
dissolved,  the  partners  are  still  jointly  liable  for  its  debts,  and  their  payments 
or  acknowledgments  consequently  have  the  same  effect,  with  those  of  ordinary 
co-contractors.  Smith  v.  Ludlow,  6  Johnson,  267  ;  Johnson  v.  Beardslee, 
15  Id.  3  ;  Patterson  v.  Choatc,  7  Wend.  441  ;  White  v.  Hile,  3  Pick.  391 ; 
Mclntyre  v.  Oliver,  2  Hawk.s,  209;    Iloosvelt  v.  Mark,  6  Johnson's  Ch, 


624  SMITU'S      LEADING     CASES. 

291.  The  rule  is  the  same  when  the  person  who  makes  the  acknowledg- 
ment or  payment  is  a  principal,  and  the  party  bound  by  it  a  mere  surety. 
Frye  V.  Barker,  4  Pick.  38'2;  Sigourney  v.  Drury,  14  Id.  387;  Lent  v. 
Hewit,  8  Barr,  337  ;  Clarke  v.  Sigourney,  17  Conn.  511 ;  Caldwell  v. 
Sigourney,  19  Id.  And  as  the  debt  maybe  revived  by  the  acknowledgment 
of  one  of  the  debtors,  without  a  part  payment,  the  legal  effect  of  such  a  pay- 
ment, will  not  be  varied  by  showing  that  it  was  small  in  amount,  and  merely 
intended  as  a  revival ;  Goddard  v.  Ingram,  3  Q.  B.  399.  But  it  would 
seem  that  a  payment  or  acknowledgment,  made  collusively  and  not  in  the 
course  of  business,  will  not  sustain  an  action  against  any  other  than  the 
parly  who  makes  it.     Cort  v.  Tracy,  1  Conn.  '2GS  ;  9  Id.  4. 

It  is,  however,  well  settled,  that  although  an  acknowledgment  by  one  man 
may  take  the  debt  out  of  the  statute  as  against  another,  when  it  is  shown  to 
be  jointly  binding  on  both,  yet  that  this  must  appear  aliunde,  and  not  merely 
by  the  acknowledgment ;  for  otherwise  the  defendant  might  be  charged  with 
a  new  obligation,  under  the  pretence  of  reviving  one  previously  in 
existence.  And  the  same  rule  applies  to  co-partners  after  the  dissolu- 
tion of  the  partnership,  for  they  then  lose  the  power  to  bind  each  other, 
even  as  to  the  antecedent  business  of  the  firm,  and  stand  on  the  footing  of 
ordinary  co-contractors.  Hackley  v.  Hastie,  3  Johnson,  537 ;  Skilton  v. 
Cocke ;  Smith  v.  Ludlow. 

Nothing   is  in  fact  better  settled,  than  that   partners,  after  the    disso- 
lution of  the  partnership,  or  other  joint-debtors,  have  no  power  to  bind  each 
other  to  any  variation  or  modification  of  their  original  contract,  and  cannot 
even  renew  a  note  which  has  been  made  and  discounted  at  bank  by  all ; 
Baker  v.  Staekpole,  9  Cowen,  420.     Yale  v.  Eames,  1  Metcalf,  486.     The 
National  Bank  v.  Norton,  1  Hill,  572;  Mitchell  v.  Ostron,  2  Id.  520; 
Schoneman  v.  Fegeley,  7  Barr,  433.     And  these  decisions  seem  to  show 
that  if,  as  would  seem  undeniable,  the  revival  of  a  debt  barred  by  the  sta- 
tute, is  in  efi"ect,  the  creation  of  a  new  cause  of  action,  founded  upon  the 
original  consideration,  the  admission  of  one  co-contractor  cannot  revive   it 
against  the  rest.     It  was  accordingly   held  by  the  Supreme  Court  of  the 
United  States  in  Clementson   v.    Williamson,  8  Cranch,  72,  and  Bell  v. 
Morrison,  1   Peters,   361,  that  as  the  power  of  a  partner  to  bind  the  firm 
is  absolutely  at  an  end  on  the  dissolution  of  the  partnership,  it  cannot  be 
exercised  for  the  purpose  of  binding  his  co-partners  to  the  payment  of  a  debt, 
from  which  they  have  been  discharged  by  the  statute,  or  in  any  other  manner. 
The  law  is  held  the  same  way  in  several  of  the  state  courts,  and  on  the  same 
principle;  The  Exeter  Bank  v.  Sullivan,  6  New  Hamp.shire,  124;  State  v. 
Deuuiugs,  1  M'Mullin,  297;  Belotes  Ex'rs  v.  Wyniore,  7  Yerger,  536; 
Mu.se  V.  Donelson,  2  Humphreys,  166;  Yandes  v.  Le  Favour,  2  Blackford, 
371;  Levy  v.  Cadet,  17  S.  &  R.  126  ;  Searight  v.  Craighead,  1  Peuna.  Pv. 
135.     In  the  Exeter  Bank  v.  Sullivan,  Richardson,  J.,  who  delivered  the 
opinion  of  the  Court,  sustained  his  position  with  great  force  of  argument, 
and  pointed  out  that   <<  although  where  one  joint  debtor  admits  a  debt,  and 
says  nothing  to  the  contrary,  it  may  be  inferred  from  his  silence  that  he 
is  willing  to  pay,  yet  that  it  can  furnish  no  ground  for  presuming,  that  ano- 
ther, who  is  absent,  is  also  willing." 

The  Supreme  Court  of  Pennsylvania  was  among  the  first  to  le;d  the  way 
in  denying  the  authority  of  Whitcomb  v.  Whiting,  fur  the  case  of  Levy  v. 


WHITCOMB    y.     WHITING.  625 

Cadet  was  decided  nearly  afe  the  same  time,  with  that  of  Bell  v.  Morrison, 
and  without,  as  it  would  seem,  any  knowledge  of  that  decision.  But  in  the 
subsequent  case  of  Houser  v.  Irvine,  3  "Watts  &  Sergeant,  345,  the  ac- 
knowledgment or  promise  of  one  partner,  was  held  to  deprive  the  rest  of 
the  protection  of  the  statute.  This,  however,  was  put  on  the  ground, 
that  as  he  had  been  intrusted  by  them  with  the  charge  of  winding  up  and 
liquidating  the  affairs  of  the  firm,  he  was  virtually  their  agent,  and  might 
bind,  them  by  his  acts  in  all  matters  within  the  scope  of  his  authority; 
Davis  V.  Desauque,  5  Wharton,  530;  Petriken  v.  Collier,  1  Barr,  247. 
But  in  the  recent  ease  of  Zent  v.  Heart,  8  Barr,  337,  Levy  v.  Cadet  and 
Searight  v.  Craighead  were  virtually  overruled  without  being  cited,  and  a 
part  payment  by  one  of  the  members  of  a  firm  after  its  dissolution,  held  to 
render  the  debt  binding  on  all.  It  is  true,  that  the  evidence  given  in  these 
cases,  consisted  in  mere  acknowledgments,  while  in  Zent  v.  Heart  there  was 
a  part  payment,  but  this  is  a  distinction  without  a  difference,  and  will  not 
serve  to  reconcile  the  more  recent  decision,  with  those  by  which  it  was 
preceded. 

On  the  other  hand,  the  earlier  cases  in  New  York,  which  recognised  the 
authority  of  Whitcomb  v.  Whiting,  have  been  recently  overruled  by  the 
Court  of  Appeals  of  that  state,  and  it  has  been  decided,  that  as  the  power 
of  a  partner  to  bind  the  firm  is  terminated  by  a  dissolution  of  the  partner- 
ship, it  cannot  extend  to  revive  a  debt  against  his  co-partners,  which  has 
been  barred  by  the  statute;  Van  Keuren  v.  Parmelee,  2  Comstock,  524. 

It  would  seem,  that  if  praise  is  due  to  either  of  these  tribunals,  for  thus 
departing  from  prior  authority,  in  a  matter  where  theoretic  truth  is  less 
important  than  uniformity  of  decision,  it  should  be  awarded  to  the  latter 
rather  than  to  the  former.  It  is  admitted  on  all  hands,  that  a  direct  acknow- 
ledgment of  a  debt  will  not  revive  it,  even  against  the  person  who  makes 
the  acknowledgment,  if  accompanied  with  expressions  showing  a  refusal, 
or  even  an  unwillingness  to  pay  it.  And  it  would,  therefore,  appear,  that 
even  if  the  acknowledgment  of  one  co-contractor  is  to  be  regarded  as  the 
acknowledgment  of  the  rest,  it  cannot  deprive  them  of  the  right  to  annul 
or  avoid  its  effect  by  a  refusal  of  payment,  whether  made  at  the  time,  if  they 
are  then  present,  or  as  soon  afterwards  as  it  is  brought  to  their  knowledge. 
Silence  on  their  part,  after  notice,  might  perhaps  amount  to  proof  of  acquies- 
cence, but  it  would  seem  unjust  to  deny  them  a  right,  on  the  ground  of 
the  admission  by  another  before  notice,  which  they  would  have,  if  the 
admission  proceeded  from  themselves. 

Although  there  can  be  little  doubt,  either  under  the  express  words  of  the 
statute,  or  the  forms  of  pleading,  that  any  suit  in  assumpsit,  or  debt  on 
simple  contract,  must  come  under  its  bar,  unless  a  cause  of  action  is  shown 
within  sis  years,  there  is  yet  some  difficulty  in  reconciling  the  theory  of  the 
law  on  this  point,  with  its  practice.  We  have  seen,  that  consistently  with 
the  rules  of  pleading,  which  do  not  permit  any  variance  between  proof 
and  allegations,  the  subsequent  cause  of  action  relied  on  in  answer  to  a 
plea  of  the  statute,  must  be  between  the  parties  named  in  the  declara- 
tion, and  that  acknowledgments  made  by,  or  to  an  executor,  cannot  be 
admitted  under  counts  alleging  promises  by,  or  to  the  testator.  It  is  obvi- 
ous, that  the  declaration  must  be  pursued  with  regard  to  the  nature  of  the 
cause  of  action,  as  well  as  with  regard  to  the  parties.     And  it  has  been  sup- 

VoL.  I.— 40 


G2()  smith's  leading  cases. 

posed,  that  when  the  declaration  is  founded  on  the  original  cause  of  action, 
there  is  an  inconsistency  in  sustaining  it  by  evidence  of  a  new  promise ; 
Carshore  v.  Huyck,  G  Barbour's  S.  C.  583.  But  when  the  dechiration  is  on 
a  promise  implied  by  the  law  from  an  executed  consideration,  this  difliculty 
is  apparent  rather  than  real.  The  declaration  proceeds,  in  such  cases,  on  an 
obligation,  which  is  a  legal  implication  from  the  facts  as  set  forth.  It  can- 
not, therefore,  be  said  to  be  founded  upon  a  special  cause  of  action,  but  is 
general  in  its  character,  and  admits  of  any  proof  consistent  with  the  consi- 
deration. And  the  replication  of  a  cause  of  action  within  six  years  to  a 
plea  of  the  statute,  and  evidence  of  a  new  promise  or  acknowledgment, 
under  such  a  replication,  so  far  from  being  a  departure,  are  in  the  nature  of 
anew  assignment,  and  merely  show,  that  the  plaintiff  relies  not  on  the  obli- 
gation or  promise,  implied  from  the  premises  in  the  first  instance,  which  has 
been  barred,  but  on  the  new  obligation,  which  has  grown  out  of  the  subse- 
quent admissions  of  the  defendant,  to  which  there  is  no  bar.  Thus  when 
the  plaintiff  declares  on  the  common  counts  for  goods  sold,  or  for  money  had 
and  received  to  his  use,  the  promise  set  forth  in  the  declaration  is  an  implied 
promise,  which  is  not  tied  down  to  any  circumstances  of  time  or  place,  and 
which  only  requires  proof  of  two  things  to  support  it ;  that  the  defendant 
■was  indebted  to  the  plaintiff  at  the  time  when  the  writ  was  purchased,  and 
that  the  debt  grew  out  of  the  consideration  set  forth.  Now  both  these  requi- 
sitions are  satisfied,  by  proving  the  facts  constituting  the  consideration, 
which  originally  created  the  debt,  and  showing,  that  the  defendant  was  liable 
to  pay  it,  whether  in  consequence  of  a  new  undertaking  or  otherwise,  at  the 
time  of  the  commencement  of  the  suit.  Upon  proof  of  this,  the  law  raises  a 
promise,  which  necessarily  accords  with  that  laid  in  the  declaration. 

The  same  principles  apply,  where  a  new  promise  is  relied  on,  to  support  an 
action  upon  a  bill  of  exchange,  or  promissory  note  barred  by  the  statute. 
For  after  stating  the  express  promise,  the  declaration  goes  on  to  aver  a 
resulting  legal  liability  and  another  promise,  which  the  law  implies  as  a 
consequence  of  this  liability,  but  which  has  no  existence  in  point  of  fact ; 
Griffith  V.  Ptoxborough,  2  M.  &  W.  734;  Stericker  v.  Barker,  9  Id.  321. 
Now  the  operation  of  the  statute  destroys  this  liability,  and  the  resulting 
implied  promise,  but  the  note  still  remains,  and  forms  a  sufficient  considera- 
tion to  give  effect  to  a  subsequent  acknowledgment,  and  render  it  the  foun- 
dation of  a  new  liability  dating  from  the  acknowledgment.  Hence  such  an 
acknowledgment,  may  be  given  in  evidence  to  support  the  allegation  of  an 
implied  promise,  without  producing  a  variance  from  the  declaration. 

When,  however,  the  breach  complained  of,  is  the  failure  to  comply  with 
an  express  particular  promise,  which  the  law  cannot  imply,  and  which  must, 
therefore,  be  proved  to  have  been  actually  made  by  the  defendant,  this 
rea.?oning  does  not  apply,  and  a  recovery  cannot  be  had  on  a  subsequent 
acknowledgment  or  promise.  Thus  when  the  declaration  is  on  an  under- 
taking by  the  defendant  to  build  a  house  in  a  particular  manner,  and  a 
breach  by  a  total  failure  to  comply  with  the  undertaking,  or  by  the  erection 
of  the  building  in  a  different  manner,  an  acknowledgment  of  the  breach,  and 
a  promise  to  make  compensation  for  it  in  damages,  are  insufficient  to  remove 
the  bar  of  the  statute,  and  sustain  the  action.  For  as  the  promise  declared 
on  is  to  build  a  house,  and  the  admission  of  a  pecuniary  liability,  the  one  is 
necessarily  inconsistent  in  terms  and  substance  with  the  other.  Thus  it  was 
said  by  Lord  Ellenborougii,  in  Boydell  v.  Drumraond,  2  Campbell,  157,  that 


WniTCOMB     V.     WHITING.  627 

"■  if  a  man  acknowledge  the  existence  of  a  debt  barred  by  the  statute,  the 
hxw  has  been  supposed  to  raise  a  new  promise  to  pay,  it  and  thus  the 
remedy  is  revived ;  but  no  such  efiect  can  be  given  to  an  acknowledgment, 
where  the  cause  of  action  arises  from  the  doing,  or  omitting  to  do,  some 
act,  at  a  particular  moment,  in  breach  of  a  contract."  And  where  the 
action  was  in  assumpsit  against  an  attorney,  for  not  using  due  care  and  dili- 
gence in  the  investment  of  money,  which  he  had  been  retained  to  invest, 
an  acknowledgment  made  by  him  within  sis  years,  that  he  had  been  guilty 
of  negligence,  and  was  responsible  for  it,  was  held  inadmissible  under  a 
replication  to  a  plea  of  the  statute;  Short  v.  McCarthy,  3  B.  &  Aid.  626. 
"If,"  said  Abbott,  C.  J.,  in  delivering  the  opinion  of  the  court  in  this  case, 
<<the  plaintiff  can,  consistently  with  the  rules  of  law,  rely  on  the  subsequent 
promise,  he  may  do  so,  upon  a  new  declaration  specially  framed  for  that 
purpose.  But  I  am  of  opinion,  that  he  cannot  do  so  upon  a  declaration  in 
this  form.  If  his  want  of  knowledge  of  the  actual  injury  sustained,  till 
within  the  period  of  six  years,  anterior  to  the  commencement  of  this  action, 
be  sufficient,  it  will  be  competent  for  him  to  avail  himself  of  that  hereafter. 
Upon  the  present  declaration,  I  cannot  say,  that  the  cause  of  action  there 
stated,  arose  within  six  years  before  the  commencement  of  the  present 
action  :  for  the  cause  of  action  there  stated,  is  the  omission  of  the  defendant 
to  make  due  inquiries  at  the  bank.  Leaving  it,  therefore,  open  to  the  plain- 
tiff to  avail  himself  of  these  points,  in  case  he  shall  be  advised  to  bring  a 
fresh  action,  I  am  of  opinion,  that,  in  the  present  case,  a  nonsuit  mu^t  be 
entered."  The  law  was  held  the  same  way  in  Whitehead  v.  Howard,  2 
Brod.  &  Bing.  372,  where  the  defendant  pleaded  the  statute  to  a  declara- 
tion setting  forth  a  promise  to  invest  money  on  good  security,  and  a  breach 
by  an  investment  made  on  insufficient  security,  and  the  plaintiff  was  not 
allowed  to  prove  an  admission  within  six  years,  that  the  security  was  insuffi- 
cient, although  coupled  with  an  express  promise  of  payment.  And  in  Wet- 
zell  V.  Bussai'd,  11  Wheaton,  315,  where  an  attempt  was  made  to  render  the 
defendant  liable  in  an  action  for  a  breach  of  contract,  in  not  delivering  gun- 
powder, by  proof  of  a  subsequent  acknowledgment,  Marshall,  C.  J., 
expressed  much  doubt  as  to  whether  the  acknowledgment,  was  admissible  in 
evidence  under  the  declaration,  although  he  decided  the  case  on  the  ground, 
that  it  was  not  sufficiently  clear  and  explicit, 

It  was  said  by  Park,  J.,  in  Whitehead  v.  Howard,  that  he  was  not  aware 
of  any  case,  where  the  doctrine  of  revival  after  the  operation  of  the  statute, 
had  been  applied  to  any  thing,  but  an  actual  debt.  It  would,  notwithstand- 
ing, appear,  that  whenever  the  declaration  is  on  an  executed  consideration, 
and  consequently  on  an  obligation  implied  by  law,  the  plaintiff  may  recover 
on  proof  of  a  subsequent  admission,  whether  the  obligation  be  for  the  pay- 
ment of  money,  or  the  performance  of  any  other  act.  For  in  such  cases,  it 
is  enough  if  the  obligation  exist  when  the  writ  is  issued,  although  it  may 
have  been  barred  at  an  antecedent  period.  But  although  it  may  be  true 
theoretically,  that  every  obligation,  which  is  the  result  of  a  legal  deduction 
from  the  promises  set  forth  in  the  declaration,  may  be  revived  by  a  subse- 
quent admission,  yet  it  is  a  truth  of  little  practical  importance,  save  where  the 
obligation  is  a  debt.  For  when  it  is  a  duty  of  any  other  description,  as  for 
the  delivery  of  goods  by  a  bailee  or  carrier,  or  the  execution  of  a  retainer  by 
an  attorney,  it  will  seldom  happen,  that  the  duty  still  subsists  when  the  writ 


628  smith's    leading    cases. 

issuos,  or  that  the  admission  will  tend  to  show  its  existence.  Thus  in  Short 
V.  McCarthy,  where  the  action  was  for  the  breach  of  the  obligation  implied 
by  law,  from  the  retainer  of  the  defendant  as  an  attorney,  in  the  business  of 
the  plain f iff,  had  the  admission  been,  that  the  obligation  was  binding 
and  unfulfilled,  it  might  have  sustained  the  declaration,  and  removed  the 
bar  of  the  statute.  But  the  acknowledgment  in  fact  showed,  that  the 
retainer  was  at  an  end,  and  merely  admitted  that  the  defendant  was  bound 
to  make  compensation  in  damages  for  its  non-fulfilment.  And  as  this  obli- 
gation differed  from  that  alleged  in  the  declaration,  it  could  not  be  made  a 
grouud  of  recovery  by  the  plaintiff.  Whether  the  difficulty  could  be  obviat- 
ed in  this,  or  other  cases,  where  the  subsequent  admissions  do  not  pursue 
the  original  cause  of  action,  by  a  special  count  setting  forth  the  original  con- 
tract, the  breach,  the  consequent  liability  in  damages,  the  interposition  of 
the  statute,  and  the  new  promise  or  acknowledgment,  is  a  different  question, 
and  one  which  has  not  been  expressly  determined.  Such  a  declaration, 
however,  would  seem  to  be  within  the  principle  suggested  by  Tindal,  C.  J. 
in  Kaye  v.  Button,  7  M.  &  CI.  807,  that  where  there  is  a  liability  or  duty, 
from  which  the  law  cannot  imply  a  promise,  one  may  be  raised  by  the  sub- 
sequent promise  of  the  parties.  And  the  case  of  Lechmere  v.  Fletcher, 
supra,  would  seem  to  show,  that  an  admission  by  the  defendant  of  his  wil- 
lingness to  meet  a  liability  barred  by  the  statute,  will  enable  the  plaintiff  to 
recover  on  proper  pleadings,  although  the  admission  does  not  pursue  the 
original  contract. 

It  is  well  settled  law,  that  when  the  acknowledgment  or  promise  relied 
on  as  reviving  the  debt  is  conditional,  the  plaintiff'  cannot  recover  without 
proving,  that  the  condition  has  been  fulfilled.  Cocks  v.  Weeks,  7  Hill,  45  ; 
Tompkins  v.  Brown,  1  Denio,  247 ;  Manning  v.  Wheeler,  13  New  Hamp- 
shire, 486,  supra.  In  Lousdale  v.  Brown,  3  W.  C.  C.  R.  407,  Wash- 
ington, J.,  went  further,  and  held  evidence  of  a  conditional  promise  inad- 
missible on  the  ground  of  variance,  under  a  traverse  of  a  plea  of  the  statute 
to  a  declaration  on  an  absolute  promise.  And  in  Watkins  v.  Stevens,  4 
Barbour,  168,  the  point  was  treated  as  doubtful,  although  the  weight  of  au- 
thority was  admitted  to  be  in  favour  of  the  admission  of  the  evidence.  The 
difficulty  seems,  notwithstanding,  to  be  apparent  rather  than  real.  Nothing 
can  be  a  variance  under  a  plea  of  the  statute,  which  would  have  been  admis- 
sible under  the  general  issue;  and  no  rule  of  law  is  better  established  than 
that  a  conditional  promise  for  the  payment  of  money,  becomes  absolute  as 
60on  as  the  condition  is  fulfilled,  and  may  be  declared  on,  as  if  it  had 
never  existed;  Stone  v.  Rogers,  2  M.  &  W.  443.  For  as  the  engage- 
luent  of  the  promisor  finally  results  in  such  cases,  in  an  unqualified  obli- 
gation, the  law  implies  an  unqualified  promise  for  its  fulfilment.  Thus 
the  indebitatus  counts  are  sustained  every  day  on  promises,  which,  although 
contingent  originally,  have  ended  in  an  absolute  liability.  It  is,  therefore, 
immaterial,  whether  the  revival  of  a  debt  barred  by  the  statute,  be  absolute 
or  conditional  in  the  first  instance,  for  it  becomes  absolute  as  soon  as  the 
condition  is  performed,  and  may  be  given  in  evidence  under  the  ordinary 
forms  of  declaration,  without  producing  a  variance.  The  law  on  this  point 
was  stated  with  great  precision  by  Baron  Alderson,  in  Hall  v.  Prendergrass, 
14  M.  &  W.  741,  746,  where,  he  said,  ''the  plaintiff  must  prove  an  ac- 
knowledgment conformable  to  the  promise  laid  in  the  declaration,  viz.,  either 


WIIITCOMB     V.     wniTING.  G29 

an  unconJitional  acknowledgment,  from  which  a  promise  to  pay  is  inferred, 
or  an  acknowledgment  subject  to  a  condition,  which  has  been  performed, 
and  which  thus  becomes  absolute,  and  so  equall}'  maintaining  the  promise 
in  the  declaration."  The  rule  thus  laid  down  is  applicable  to  actions  upon 
negotiable  paper,  as  well  as  to  all  other  forms  of  assumpsit,  in  which  the 
promise  declared  on  is  implied  by  law,  from  the  existence  of  a  debt  shown  by 
the  fiicts  set  forth  in  the  declaration,  and  anything  which  revives  the  debt, 
necessarily  revives  the  promise.  The  law  was  so  held  by  the  Court  of  Ex- 
chequer, in  Irving  v.  Veitch,  3  M.  &  W.  90,  where  it  was  decided,  that  a 
conditional  promise  might  be  given  in  evidence,  under  a  traverse  of  a  plea 
of  the  statute,  to  an  action  on  a  promissory  note,  although  it  was  strenuously 
contended  for  the  defence,  that  it  was  inconsistent  with  the  demand  set 
forth  in  the  declaration,  and  that  there  could  be  no  recovery  under  such 
circumstances,  without  a  special  declaration.  The  same  point  arose  in  Hum- 
phreys v.  Jones,  14  M.  &  W.  1,  and  was  decided  in  the  same  manner. 

It  is  well  settled,  that  no  promise  or  acknowledgment  can  defeat  the  opera- 
tion of  the  statute  in  actions  of  tort ;  Hurst  v.  Parker,  1  B.  &  Aid.  92.  Hence 
a  suit  brought  in  case  for  a  fraud,  cannot  be  taken  out  of  the  statute  by  the 
admissions  of  the  defendant,  altliough  the  fraud  may  have  been  committed 
in  the  course  of  a  contract;  Oothout  v.  Thompson,  20  Johnson,  278.  But 
this  rule  does  not  apply,  where  the  circumstances  are  such  that  the  law  can 
imply  a  contract  from  the  tort,  as  in  the  ordinary  case  where  the  plaintiff 
waives  the  conversion  of  his  goods,  and  sues  in  assumpsit  for  the  proceeds. 
Morton  v.  Chandlier,  8  Maine,  9.  II . 


^:=BRISTOW    V.    WRIGHT.  [=-^324] 

EASTER.— 21  GEO.  3.—  B.  R. 
[reported,  dougl.  6G5.] 

In  an  action  against  the  sheriff  for  taking  goods  without  leaving  a  3'e;ir's  rent,  tlie 
declaration  needs  not  state  all  the  partirnlars  of  the  deniis^c,  but  if  it  doef-,  and 
they  are  not  proved  as  stated,  there  shall  be  a  noi::^uit. 

In  last  Hilary  Term,  on  Thursday,  the  25th  of  January,  Lee  obtained  a 
rule  to  shew  cause  why  the  verdict  which  had  been  found  for  the  plaintift" 
vshould  not  be  set  aside,  and  a  new  trial  granted,  or  a  nonsuit  entered. 

This  was  an  action  on  the  case,  against  the  defendants  as  sheriff  of  Mid- 
dlesex,-|-  on  the  statute  of  8  Ann.  c.  14,  s.  1,  for  taking  the  goods  of  one 
Pope,  in  execution,  in  a  house  let  from  year  to  year,  by  the  plaintiff  to  Pope, 
■without  paying  or  contenting  him  for  a  year's  rent  then  due,  and  of  which 
the  defendants,  before  the  removal  of  the  goods,  had  notice. 

t  The  two  sheriffs  of  London  make  one  sheriff  of  Middlesex.  I3arkcr  v.  Wcedon,  4 
Tyrwh.  841. 


630  smith's  lkadinq  cases. 

The  declaration  stated  the  demise,  as  follows : — 

"The  said  plaintiff,  on,  &c.,  demised  to  one  Benjamin  Pope,  a  certain 
messuage,  &c.,  to  have  and  to  hold  unto  the  said  Benjamin,  from  the  feast 
of  St.  Michael,  then  next  following,  for  and  during  the  term  of  one  year 
from  thence  next  ensuing,  and  fully  to  be  complete  and  ended,  and  so,  from 
year  to  year,  for  so  long  as  it  should  please  the  plaintiff,  and  tlie  said  Ben- 
jamin, yielding  and  paying  therefore,  yearly  and  every  year  during  the  said 
term,  unto  the  plaintifi',  the  yearly  rent  or  sum  of,  &c.,  by  four  even  and 
equal  quarterly  payments ;  to  wit,  at  the  feast  of,  &c." 

The  principal  witness  called  on  the  part  of  the  plaintiff  was  Pope  himself; 
r+oofiT  ^^^^  proved,  that  the  plaintiff  let  the  *house  to  him,  by  pai'ule,  for 
L  -la  year,  and  that  there  was  no  stipulation  about  any  time  or  times 
for  the  payment  of  the  rent. 

It  was  contended  at  the  trial  (which  came  on  before  Lord  Mansfield,  at 
the  sittings  for  Middlesex),  that,  as  the  plaintiff  had  laid  a  demise  with  a 
reservation  of  rent  payable  quarterly,  he  was  bound  to  prove  it  exactly  as 
laid;  and  that,  having  failed  in  that  proof,  he  ought  to  be  nonsuited.  His 
lordship  overruled  the  objection,  being  then  of  opinion,  that  enough  of  the 
demise  as  laid  had  been  proved  to  entitle  the  plaintiff  to  his  action.  The 
present  rule  was  moved  for,  on  the  ground  of  a  misdirection. 

On  Thursday,  the  3rd  of  May,  the  Attorney -General  and  Dunning  showed 
cause,  and  urged  that  the  contract  was  not  the  gist  of  the  action  :  the  mate- 
rial part  was,  that  a  year's  rent  was  in  arrear,  and  that  having  been  proved, 
the  plaintiff  had  shown  enough  to  entitle  himself  to  a  verdict. 

Wood,  on  the  other  side,  insisted,  that,  as  the  plaintiff  had  set  forth  the 
particulars  of  the  contract,  he  was  bound  to  prove  them  as  laid  ;  and  for  this 
he  cited  an  anonymous  case  in  Lord  Raymond,  where,  a  promise  being  laid, 
''to  deliver  good  merchantable  wheat,"  and  the  evidence  being  of  a  promise 
to  deliver  "  good  second  sort  of  wheat,"  Lord  Holt  held  the  variance  to  be 
fatal,  and  nonsuited  the  plaintiff  ;(a)  the  King  v.  Nudigate,(Z/)  where,  upon 
a  traverse  of  an  office  found,  the  issue  being,  whether  J.  S.  devised  ''  to  J. 
N.  and  his  heirs"  or  not,  and  the  jury  having  found  that  "J.  S."  devised 
"to  A.  for  years,  remainder  to  J.  N.  in  fee,"  the  court  adjudged  '■' quod 
non  devisavit  modo  ef,  formCi :"  Sands  and  Tash  v.  Ledger,(c)  where,  in 
action  of  debt  for  rent,  the  plaintiffs  declared  on  a  demise,  "  for  15/.  rent 
per  annum,"  under  a  power  '<  to  make  leases  for  twenty -one  years,"  and  the 
evidence  being  of  a  demise  "for  \bl.  rent  per  annum,  and  three  fowls," 
under  a  power  "  to  make  leases  for  twenty-one  years  in  possession,  and  not 
in  reversion,  rendering  the  ancient  rent,  and  not  dispunishable  of  waste," 
Lord  Holt  directed  a  nonsuit ;  and  Savage,  qui  tam,  v.  Smith,  which  was 
afterwards  stated  by  Lord  Mansfield  in  delivering  the  judgment  of  the 
court. ((/) 

The  case  stood  over  till  this  day. 
r*^9n       *Lord  i\Iansfield  (after  stating  the  case.) — I  am  vefy  free  to  own, 
L         -^  that  the  strong  bias  of  my  mind  has  always  leaned  to  prevent  the 
manifest  justice  of  a  cause  from  being  defeated  or  delayed  by  formal  slips, 
which  arise  from  the  inadventence  of  gentlemen  of  the  profession;  because 

{a)  Bedford  A^^sizes,  12  W.  3.     1  Ld.  Rayin.  735. 

{i)  B.  R.  E.  6  Car.  1,  Sir  \V.  Jones,  221. 

(c)  Surry  Assizes,  1  Ann.  2  Ld.  Raym.  792.  (r/)  Infra,  p.  327, 


Bill  STOW    V.     WRIGHT.  G31 

it  is  extremely  hard  on  the  party  to  be  turned  round,  and  put  to  expense, 
from  such  mistakes  of  the  counsel  or  attorney  he  employs.     It  is  hard  also 
on  the  profession.     It  was  on  this  ground  that  I  overruled  the  objection  on 
this  case ;  but  I  am  since  convinced,  both  on   the  authorities  which  I  am 
about  to  mention,  and  on  the  reasoning  in  them,  that  I  was  wrong,  and  that 
it  is  better,  for  the  sake  of  justice,  that  the  strict  rule  should  in  this  case 
prevail.     I  have  always  thought,  and  often  said,  that  the  rules  of  pleading 
are  found  in  good  sense.     Their  objects  are  precision  and  brevity.    Nothing 
is  more  desirable  for  the   court  than   precision,  nor  for  the  parties  than 
brevity.     It  is  easy  for  a  party  to  state  his  ground  of  action.  If  it  is  founded 
on  a  deed ;  he  needs  not  set  forth  more  than  that  part  which  is  necessary 
to  entitle  him  to  recover.(e)     If  he  states  what  is  impertinent,  it  is  an  injury 
to  the  other  party,  and  may  be  struck  out  and  costs  allowed,  upon  motion. 
I  remember  a  case,  where,  in  an  action  on  one  covenant,  the  whole   of  a 
very  long  deed  was  set  forth.     The  court  referred  it  to  the  master,  and  all 
was  struck  out  except  the  covenant  on  which  the  action  was  brought,  and 
costs  paid  to  the  amount  of  100?.     When  I  say  that  the  plaintiff  needs  only 
set  forth  that  part  of  a  deed  on  which  his  action  is  founded,  I  do  not  mean 
to  say  that  even  that  is  necessary.      He  is  not  bound  to  set  forth  the  mate- 
rial parts  in  letters  and  words.     It  will  be  sufficient  to  state  the  substance 
and  legal  effect.     This  is  shorter,  and  not  liable  to  mis-recitals,  and  literal 
mistakes.     Here  that  method  might  have  been  followed.     It  certainly  was 
not  necessary  to  allege  this  part  of  the  lease  that  relates  to  the  time  of  pay- 
ment, in  order  to  maintain  the  action.     But,  since  it  has  been  alleged,  it 
was  necessary  to  prove  it.     The  distinction  is  between  that  which  may  be 
rejected  as  surplusage,  (which  might  have  been  struck  out  on  motion,)  and 
what  cannot.     Where  the  declaration  contains  impertinent  matter,  foreign 
to  the  cause,  and  which  the  master,  on  a  reference  to  him,  would  strike  out, 
(irrelevant  covenants,  for  instance,)  that  will  be  rejected  by  the  *court,  r^o.^Y"! 
and  need  not  be  proved.      But  if  the  very  ground  of  the  action  is  L     ^   J 
misstated,  as  where  you  undertake  to  recite  that  part  of  a  deed  on  which 
the  action  is  founded,  and  it  is  mis-recited,  that  will  be  fatal.     For  then, 
the  case  declared  on  is  different  from  that  which  is  proved,  and  you  must 
recover  secniuhnn  allnjata  et  prohata.     This  will  reconcile  all  the  cases.  In 
the  present  instance,  the  plaintiff  undertakes  to  state  the  lease,  and  states  it 
falsely.     There  are  many  authorities  which  go  to  prove  this  distinction.      I 
will  mention  three  (which  are  very  strong),  where  matter,  which  it  was  un- 
necessary to  set  forth,  being  stated,  and  not  proved,  the  variance  was  held 
to  be  fatal.     The  first  is  the  case  of  Cudlip  v.  Bundle. (/)     There,  in  an 
action  by  a  lessor  against  his  tenant,  for  negligently  keeping  his  fire,  by 
means  whereof  the  house  was  consumed,  a  demise  to  the  defendant  for  seven 
years  was  stated  in  the  declaration ;  the  defendant  pleaded,  that  the  plain- 
tiff did  not  demise  modo  et  forma;  and  issue  being  joined,  it  appeared  on 
the  finding  by  the  jury  in  a  special  verdict,  to  be  a  lease  at  will.     The  court 
agreed  that  the  action  would  have  lain  against  the  defendant  as  tenant  at 
will ;   but,  as  the  plaintiff  had  stated  him  to  be  a  lessee  for  years,  and  had 
proved  him  tenant  at  will,  the  variance  was  held  to  be  fatal,  and  there  was 
judgment  for  the  defendant.     The  next  is  the  case  of  Savage,  qui  tarn  v. 

(e)  Vide  Cowp.  C65.  (/ )  B.  R.  T.  2  W.  &  M.  Cai  th.  202. 


032  SMITU'S     LEADING     CASES. 

Smith,  in  the  Common  Picas. (y)  That  was  an  action  of  debt  against  a 
sheriff's  officer,  by  an  informer.  The  declaration  stated  a  judgment,  and  a 
fieri  facias  upon  that  judgment.  The  fieri  facias  was  given  in  evidence,  but 
not  the  judgment,  and  the  court  held,  that,  though  it  might  be  unnecessary 
to  aver  the  judgment,  yet,  having  been  averred,  it  ought  to  be  proved  ;  and 
my  Lord  Chief  Justice  de  Grey  expressly  went  upon  the  distinction  between 
immaterial  and  impertinent  averments,  and  said  that  the  former  must"  be 
proved,  because  relative  to  the  point  in  question. (A)  The  third  case  is  Shute 
V.  Ilornsey  in  this  court. (<')  That  was  an  action  for  double  rent  on  the  sta- 
tute.(Z-)  The  declaration  stated  a  lease  for  three  years;  but,  on  the  evi- 
dence, it  appeared  that  the  lease  for  three  years  was  void,  under  the  Statute 
of  Frauds  ;  and  that  the  defendant  was  only  tenant  from  year  to  year.  This 
r:):o.-)Q-i  ■^^'^s  sufficient  for  the  purpose  of  *the  action  ;  but  a  lease  for  three 
^  "'"-'  years  having  been  laid,  and  not  proved,  the  plaintiff  was  nonsuited  ; 
and  a  rule  for  setting  aside  the  nonsuit  having  been  obtained,  it  was  upon 
the  argument  of  the  case,  discharged.  These  authorities  are  in  point  to  the 
doctrine  I  have  laid  down.  But  perhaps,  notwithstanding  the  weight  of  the 
cases,  if  that  doctrine  were  highly  detrimental,  and  the  setting  it  right  would 
be  attended  with  no  mischief,  as  it  is  only  a  mode  of  practice,  it  might  de- 
serve consideration.  But  I  believe  it  stands  right,  and  upon  the  best  foot- 
ing; for  it  may  prevent  the  stuffing  of  declarations  with  prolix  and  unne- 
cessary matter,  because  of  the  danger  of  failing  in  the  proof;  and  may  lead 
pleaders  to  confine  themselves  to  state  the  legal  effect.  We  are  all  of  opi- 
nion that  the  verdict  should  be  set  aside,  and  judgment  of  nonsuit  entered. 

The  rule  made  absolute. 


"I  AM  aware,"  said  Mr.  Justice  Bnller,  the  foundation  of  his  action,  it  was  pro- 
in  Pepin  v.  Solomons, 5 T.  R,.  496,  "that  perly  determined  that  a  judgment  of 
the  case  of  Bristow  v.  Wright  has  been  nonsuit  should  be  entered."  Accord, 
sometimes  doubted,  but  I  am  still  of  opi-  Savage  v.  Smith,  Blacks.  1101;  Wil- 
nion  that  it  was  rightly  decided.  In  or-  jiamson  v.  Allison,  2  East,  45'J,  ubi  per 
der  to  entitle  the  plaintiff  to  maintain  Lord  Ellenborough,  C.  J. — "With  re- 
that  action,  it  was  necessary  for  him  to  spect  to  what  averments  are  necessary 
show  that  he  was  landlord,  it  being  an  to  be  proved,  I  take  the  rule  to  be,  that 
action  for  taking  the  lessee's  goods,  with-  if  the  whole  of  an  averment  mny  be 
out  leaving  a  year's  rent;  and,  to  show  struck  out  without  destroying  the  plain- 
that  the  plaintiff  was  the  landlord,  he  tiff's  right  of  action,  it  is  not  necessary 
was  obliged  to  set  forth  a  contract  be-  to  prove  it;  but  otherwise  if  the  whole 
tween  himself  and  the  tenant.  Now  cannot  be  struck  out  without  getting  rid 
contracts  are  in  their  nature  entire,  of  a  part  essential  to  the  cause  of  action  ; 
and  in  pleading  they  must  be  slated  for  then,  though  the  averment  may  be 
accurately;  but  as  the  evidence  in  that  more  particular  then  it  need  have  been, 
case  did  not  accord  with  the  contract  the  whole  must  be  proved  or  the  plain- 
stated  in  the  declaration,  and  which  was  titr  cannot  recover."     This,  it  may  be 

(5-)T.  16G.3.    2  Bhck.st.  1101. 

[h]  By  a  mistake  of  the  press,  the  word  "  materi'iV  is  printed  instead  oC"irnmat''rial" 

in  the  report  of  this  case  in  2  Blackst.  1 104.  "  Itnmnterial"  certainly  was  the  word  used 

by  De  Grey,  Chief  Justice,as  appears  not  only  from  wiiat  is  here  said  by  Ld.  Mansfield,  l)ut 

also  from  a  very  accurate  manuscript  note  I  have  seen  of  Savage  v.  Smith,  and  indeed 
from  tlic  context  in  Biackstone's  own  report. 

(i)  E.  19  Geo.  3.                                    (A)  11  Geo.  2,  cap.  10,  s.  18. 


BRISTOWV.     WRIGHT. 


638 


observed,  is  an  expression  of  the  same 
doctrine  that  was  Jaid  down  by  Lord 
Manslield  in  the  principal  case,  in  the 
following  words: — "The  distinction  is 
between  that  which  may  be  rejected  as 
surplusage  and  what  cannot."  [Accord. 
Shearm  v.  Bnrnard,  10  A.  &  E.  59:3]. 
See  Harris  v.  Mantle,  3  T.  R.  307,  wliere 
in  covenant  the  breach  was  that  the  de- 
fendant had  not  perf(:)rmed  his  covenant 
to  repair,  but  on  the  contrary  had  com- 
mitted touste.  Held  that  he  could  prove 
no  non-repair  not  amounting  to  waste, 
for  the  plaintiff  must  recover  secundum 
allegata  el  probata.  See  too  Ilawkes 
V.  Orton,.5  A.  &  E.  367  ;  [East  v.  Skin- 
ner, 11  M.  &  VV.  161];  and  Alexander 
V.  Bonnin,  4  Bing.  N.  C.  799;  where  to 
trespass  qu.  c.  f.  the  defendant  pleaded 
that  he  had  license  to  erect  and  main- 
tain a  hrick  wall  on  the  locus  in  quo, 
and  having  proved  a  license  to  erect  but 
not  to  maintatn,  it  was  held  tliat  the 
verdict  on  that  plea  must  be  entered 
against  him.  In  Martin  v.  Graham,  7 
Ad.  &  Ell.  54,  the  declaration  alleged 
that  "  the  defendant  cut  down  trees,  and 
otherwise  used  the  premises  in  so  un- 
tenantlike  and  improper  a  manner,  that 
they  became  and  were  dilapidated." 
Held  that  he  could  not  give  evidence  of 
permissive  wasle.  On  the  other  hand, 
see  Wells  v.  Hopkins,  5  M.  »Sz,  W.  7; 
where  in  an  action  on  a  bill,  the  defend- 
ant pleaded  that  it  was  accepted  for 
hops  to  be  delivered  according  to  sam- 
ple, and  that  plaintift'  had  not  deliv- 
ered hops  according  to  sample,  or  any 
hops  whatever,  the  words  in  italics 
were  rejected  as  surplusage,  [and  in 
Davis  V.  Chapman,  2  M.  &  Gr.  9-20, 
where  to  a  count  for  an  escape  the  plea, 
after  stating  a  return  of  the  debtor  into 
custody,  alleged  that  he  loas  still  kept 
in  it,  that  allegation  was  held  surplus- 
age upon  a  replication  de  injuria.] 

Upon  this  doctrine  appears  mainly  to 
depend  the  real  utility  of  the  videlicet 
or  to  icit,  so  often  introduced  by  pleaders 
before  matter  of  description  ;  a  precau- 
tion which  is  totally  useless  where  the 
statement  placed  after  the  videlicet  is 
material;  {S.  P.  Stone  v.  Knowlton,  3 
Wendell,  374 ;  Gleasons  v.  McVicker, 
7  Cowen,  42;  Janson  v.  Ostander,  1  id. 
670;  Bis.^ell  v.  Drake,  19  Johnson,  66; 
Vail  V.  Lewis  &,  Livingston,  4  id.  450; 
Watson  V.  Osborne,  8  Connecticut,  303; 
Curley  v.  Dean,  4  id.  259;}  but  which, 
in  other  cases,  prevents  the  danger  of  a 
variance,  by  scparting  the   description 


from  the  material  averment,  so  that  the 
former,  if  not  proved,  may  be  rejected, 
without  mutilating  the  sentence  which 
contains  the  latter.  See  Symons  v. 
Knox,  3  T.  R.  63.  Thus  in  Lampleigh 
v.  Braiihwaite,  ante,  p.  67,  it  is  laid 
down  by  the  court,  that  under  the  aver- 
ment, that  the  plaintiff  did  his  endea- 
vour, videlicet,  in  erjnitanilo,  it  would 
not  have  been  necessary  to  prove  riding, 
but  any  other  endeavour  would  have 
served;  [see  Parkinson  v.  Whiteiicad,  2 
M.  &  Gr.  329;  per  Wightman,  J.  in  At- 
kinson v.  Raleigh,  3  Q.  B.  8S,  per  Tin- 
dal,  C.  J.,  in  King  v.  Green,  6  Scott,  N. 
R.  809  ;  Cooper  v.  Blick.  3  Q.  B.  915  ; 
Newlanris  v.  Holmes,  3  Q.  B.  682]. 
Bristow  V.  Wright  ^continues  to  r*«j.^t)] 
be  the  leading  case  upon  the  sub-  1-  -  J 
ject  of  variance  ;  the  subsequent  deci- 
sions will  be  found  collected  and  ably 
commented  upon  in  the  notes  to  Coram 
V.  Sweeting,  2  Wms.  Saund.  199,  and 
will  all  be  found  to  bear  out  and  exem- 
plify Lord  Mansfield's  doctrine.  But 
the  law  respecting  variances  has,  since 
the  decision  of  Bristow  v.  Wright,  re- 
ceived some  very  beneficial  alterations 
from  the  legislature.  In  order  to  under- 
stand these  perfectly,  it  will  be  neces- 
sary to  occupy  the  reader  for  a  few  mo- 
ments in  something  like  an  historical 
disquision.  After  the  decision  in  Bris- 
tow V.  Wright  had  pointed  out  in  glaring 
colours  the  fatal  nature  of  a  variance, 
the  pleaders  naturally  terrified  at  the 
idea  of  incurring  a  nonsuit  in  conse- 
quence of  a  mistake  in  stating  facts,  of 
which  their  clients  had,  perhaps,  fur- 
nished them  with  no  very  accurate  ac- 
count, began  to  swell  their  declarations 
to  an  extraordinary  and  portentous  size, 
by  introducing  counts  calcukted  to  meet 
every  aspect  which  it  was  supposed  that 
the  evidence  could,  at  the  trial,  possibly 
assume,  in  hopes  that  some  one  count, 
at  least,  would  be  found  free  from  any 
material  variance.  While,  on  the  other 
hand,  the  pleader  for  the  defendant  was 
equally  astute  in  framing  a  variety  of 
pleas,  in  order  to  meet  every  possible 
defence  upon  which  the  evidence  might 
enable  counsel  to  rely  at  the  trial.  Yet, 
notwithstanding  all  these  pains,  it  was 
often  found,  at  Nisi  Prius,  that  the  case 
assumed  some  shape  which  the  ingenuity 
of  the  pleader  had  not  been  able  to 
divine;  and  the  suitor,  after  incurring 
great  expense,  was  defeated  at  the  mo- 
ment when  the  merits  of  his  case  were 
rendered  apparent  by  the  same  evidence 


C34 


smith's    leading   cases. 


which  created  the  variance  between  it 
and  the  statements  contained  in  his 
pleadini^.  In  order,  in  some  degree,  to 
obviate  these  misciiiefs,  St.  9  G.  4,  cap. 
15,  after  reciting  "  that  great  expense 
was  often  incurred  and  delay  or  failure 
of  justice  tool<  place  at  trials,  by  reason 
of  variances  between  writings  produced 
in  evidence  and  the  recital  or  setting 
forth  thereof  upon  tlie  record  on  wiiich 
the  trial  was  had,  in  matters  not  mate- 
rial to  the  merits  of  the  case,"  enacted 
"  that  it  should  and  might  be  lawful  for 
every  court  of  record  holding  plea  in 
civil  actions,  any  judge  sitting  at  Nisi 
Prius,  and  any  court  of  oyer  and  terminer 
and  general  gaol  delivery  in  England, 
Wales,  Berwick-upon-Tweed,  and  Ire- 
land, if  such  court  or  judge  shall  see  fit 
so  to  do,  to  cause  the  record  on  which 
any  trial  may  be  pending  before  any 
such  court  or  judge,  in  any  civil  action, 
or  in  any  i.idiclment  or  information  for 
any  misdemeanor,  when  any  variance 
shall  appear  between  any  matter  in 
writing,  or  in  print,  produced  in  evi- 
dence, and  the  recital  or  setting  forth 
thereof  upon  the  record  whereon  such 
trial  is  pending,  to  be  forthwith  amended 
in  such  particular,  by  some  officer  of  the 
court,  on  payment  of  such  costs,  if  any, 
to  the  other  party,  as  such  court  or  judge 
shall  think  reasonable;  and,  thereupon, 
the  trial  shall  proceed  as  if  no  such 
variance  had  appeared ;  and,  in  case 
such  trial  shall  be  had  at  Nisi  Prius,  the 
order  for  the  amendment  shall  be  in- 
dorsed on  the  postea,  and  returned  to- 
gether with  the  record ;  and  thereupon 
the  papers,  rolls,  and  other  records  of 
the  court  from  which  such  record  issued, 
shall  be  amended  accordingly."  [The 
powers  of  amendment  given  by  this  sta- 
tute are  now  extended  to  Indictments 
and  Informations  for  all  offences  lohat- 
ever,  II  &  12  Vict.  c.  46,  s.  4.] 

The  efTects  of  the  9  G.  4,  c.  15,  though 
limited  to  one  class  of  cases,  being  found 
beneficial,  it  was  determined  to  extend 
its  enactments,  and  at  the  same  time  to 
compel  the  parties  who  were  to  have  the 
advantage  of  the  increased  facility  of 
amendment  to  co-operate  with  the  legis- 
lature in  reducing  the  expense  of  actions, 
by  diminishing  the  length  of  their  plead- 
ings. Accordingly,  stat.  3  &  4  VV.  4, 
c.  42,  s.  23,  reciting  "  that  great  expense 
is  often  incurred,  and  delay  or  failure  of 
justice  takes  place  at  trials  by  reason  of 
variances,  as  to  some  particular  or  par- 
ticulars, between  the  proof  and  the  re- 


cord or  setting  forth,  on  the  record  or 
document  on  which  the  trial  is  had  of 
contracts,  customs,  prescriptions,  nanscs, 
and  other  matters  or  circumstances  not 
material  to  the  merits  of  the  case,  and 
by  the  misstatement  of  which  the 
opposite  party  cannot  have  been  preju- 
diced, and  tiic  same  cannot,  in  any  case, 
be  amended  at  the  trial,  except  where 
the  variance  is  between  any  matter  in 
writing  or  in  print,  produced  in  evidence, 
and  the  record,"  enacts  "that  it  shall  be 
lawful  for  any  *court  of  record  r*.j.>A-i 
holding  plea  in  civil  actions,  and  '-  "  -• 
any  judge  sitting  at  Nisi  Prius,  if  such 
court  or  judge  shall  see  fit  so  to  do,  to 
cause  the  record,  writ,  or  document,  on 
which  any  trial  may  be  pending  before 
any  such  court  or  judge,  in  any  civil 
action,  or  in  any  information  in  the 
nature  of  a  quo  warranto,  or  proceed- 
ings on  a  mandamus,  when  any  vari- 
ance shall  appear  between  the  proof  and 
the  recital,  or  setting  forth  on  the  re- 
cord, writ,  or  document  on  which  the 
trial  is  proceeding,  of  any  contract,  cus- 
tom, prescription,  name,  or  other  matter, 
in  any  particular  or  particulars  in  the 
judgment  of  such  court  or  judge  not 
material  to  the  merits  of  the  case,  and 
by  which  the  opposite  party  cannot  have 
been  prejudiced  in  the  conduct  of  his 
action,  prosecution,  or  defence,  to  be 
forthwith  amended  by  some  officer  of 
the  court  or  otherwise,  both  in  the  part 
of  the  pleadings  in  which  such  variance 
occisrs,  and  in  every  other  part  of  the 
pleadings,  which  it  may  become  neces- 
sary to  amend,  on  such  terms  as  to  the 
payment  of  costs  to  the  other  party,  or 
postponing  the  trial  to  be  had  before  the 
same,  or  another,  jury,  or  both  payment 
of  costs  and  postponement,  as  such 
court  or  judge  shall  think  reasonable; 
and  in  case  such  variance  shall  be  in 
some  particular  or  particulars,  in  the 
judgment  of  such  court  or  judge,  not 
material  to  the  merits  of  the  case,  but 
such  as  that  the  opposite  party  may  have 
been  prejudiced  thereby  in  the  conduct 
of  his  action,  prosecution,  or  defence, 
then  such  court  or  judge  shall  have 
power  to  cause  the  same  to  be  amended 
upon  payment  of  costs  to  the  other  party, 
and  withdrawing  the  record,  or  post- 
poning the  trial  as  aforesaid,  as  such 
court  or  judge  shall  think  reasonable; 
and,  after  any  such  amendment,  the 
trial  shall  proceed,  in  case  the  same 
shall  be  proceeded  with,  in  the  same 
manner  in  all  respects,  both  with  respect 


BRISTOW     V.     WRIGHT. 


635 


to  theliabilily  of  witnesses  to  be  indicted 
for  perjury  and  otherwise,  as  if  no  such 
variance  had  appeared  ;  and  in  case  such 
trial  shall  be  had  at  Nisi  Prius,  or  l)y 
virtue  of  such  writ  as  aforesaid  (alludinir 
to  the  torit  of  trial  given  by  ss.  17  & 
18),  tiie  order  for  the  amendment  sliall 
be  indorsed  on  the  postea  or  the  writ,  as 
the  case  may  be,  and  returned  together 
with  the  record  or  writ ;  and,  thereupon, 
such  papers,  rolls,  and  other  records  of 
the  court,  from  which  such  record  or 
writ  issued,  as  it  may  be  necessary  to 
amend,  shall  be  amended  accordingly; 
and,  in  case  the  trial  shall  be  had  in 
any  court  of  record,  then  the  order  for 
amendment  shall  be  entered  on  the  roll 
or  other  document  upon  which  the  trial 
shall  be  had.  Provided  that  it  shall  be 
lawful  for  any  party  who  is  dissatisfied 
with  the  decision  of  such  judge  at  Nisi 
Prius,  sheriff,  or  other  officer,  respecting 
his  allowance  of  any  such  amendment, 
to  apply  to  the  court  from  which  such 
record  or  writ  issued  for  a  new  trial 
upon  that  ground  ;  and  in  case  any  such 
court  shall  think  such  amendment  impro- 
per, a  new  trial  shall  be  granted  accord- 
ingly, on  such  terms  as  the  court  shall 
think  fit;  or  the  court  shall  make  such 
other  order  as  to  them  shall  seem  meet." 
And  it  is  farther  enacted  by  section  24, 
"  that  the  said  court  or  judge  shall  and 
may,  if  they  or  he  think  fit,  in  all  such 
cases  of  variance,  instead  of  causing  the 
record  or  document  to  be  amended  as 
aforesaid,  direct  the  jury  to  find  the  fact 
or  facts,  according  to  the  evidence;  and 
thereupon  such  finding  shall  be  stated 
on  such  record  or  document;  and  not- 
withstanding the  finding  on  the  issue 
joined,  the  said  court,  or  the  court  from 
which  the  record  has  issued,  shall,  if 
they  shall  think  the  said  variance  imma- 
terial to  the  merits  of  the  case,  and  the 
mis-statements  such  as  could  not  have 
prejudiced  the  opposite  party  in  the  con- 
duct of  the  action  or  defence,  give  judg- 
ment according  to  the  very  right  and 
justice  of  the  case." 

This  statute  does  not  repeal  the  9  G. 
4,  c.  15  ;  a  circumstance  which  it  may 
be  found  in  some  cases  material  to  re- 
member, for  the  power  of  amendment 
given  by  that  statute  extends  to  "  any 
civil  action,  or  anij  indictment  or  infor- 
mation for  any  misdemeanor ;"  whereas 
the  3  &  4  W.  4,  c.  42,  only  includes 
"civil  actions,  informations  in  the  nature 
of  a  quo  warranto,  and  proceedings  on 
writs  of  mandamus.''''     An   indictment 


for  misdemeanor  could,  therefore,  be 
amended  at  the  trial  in  any  particular 
falling  within  the  9  G.  4,  c.  1.5,  though 
it  certainly  is  not  included  in  the  pur- 
view of  the  3  &  4  W.  4,  c.  42  [In 
criminal  cases,  however,  the  power  to 
amend  should  be  exercised  very  sparing- 
ly, per  Coleridge,  J.,  R.  v.  Hewins,  9  C. 
&  P.  789.]  There  *is  another  po-^i-j 
difference  between  the  two  sta-  ■-  '  -■ 
tutes,  though  perhaps  not  likely  to  be- 
come of  any  practical  importance.  It 
had  been  considered  upon  the  9  G.  4,  c. 
15,  (though  some  doubts  at  first  existed 
on  the  subject,)  that  the  decision  of  the 
judge  at  Nisi  Prius,  upon  an  applica- 
tion to  amend,  was  conclusive,  and  that 
the  court  in  bancoha.d  no  jurisdiction  to 
review  it.  Parks  v.  Edge,  3  Tyrvv. 
364 ;  1  C.  &  M.  433.  The  3  &  4  W. 
4,  c.  42,  gives,  it  has  been  seen,  an  ex- 
press power  to  move  for  a  new  trial,  on 
the  ground  that  an  amendment  under 
that  statute  has  been  improperly  allow- 
ed ;  so  that,  if  a  variance  between  the 
record  and  a  written  document  were  to 
be  amended,  it  might  perhaps  even  now 
be  contended,  though  probably  v/ithout 
success,  that  the  amendment  had  been 
made  under  the  9  G.  4,  cap.  15,  and  that 
the  judge's  discretion  was,  therefore,  not 
subject  to  review.  I  say  probably  with- 
out success,  because  it  would  be  an- 
swered that,  although  the  9  G.  4,  c.  15, 
stands  unrepealed,  still  that  the  words 
of  3  &  4  VV.  4,  c.  42,  are  large  enough 
to  give  a  concurrent  power  of  certifying 
under  that  statute  in  matters  compre- 
hended within  the  9  G.  4,  c.  15.  If  that 
*be  the  true  construction,  it  r*ooi„-i 
would  be  for  the  judge  to  elect    "-  ^ 

under  which  statute  he  should  be  taken 
to  have  certified,  and  he  would  probably 
elect  to  certify  under  that  which  leaves 
his  judgment  open  to  appeal.  Here  it 
must  be  observed,  that  although  the 
party  dissatisfied  with  an  amendment 
made  at  Nisi  Prius  may  move  for  a 
new  trial  on  that  ground,  it  has  been 
held  that  a  party  dissatisfied  on  account 
of  the  judge's  refusal  to  amend  cannot 
do  so.  Doe  V.  Errington,  1  M.  dt  Rob. 
344,  n.  ;  3  Nev.  &  Mann.  646.  [1  Ad. 
&  Ell.  750,  S.  C.  Another  difl'erence 
between  the  9  G.  4,  c.  15  and  llie  •*{  & 
4  VV.  4,  c.  42,  as  pointed  out  by  Tindal, 
C.  J.,  in  Smith  v.  Brandram,  2  Man.  & 
Gr.  2.50,  2  Sc.  N.  R.  539,  S.  C,  is  that 
the  former  does  not,  in  the  enacting 
part,  expressly  restrict  the  power  of 
amending  to  those  cases  only  where  the 


636 


SMITHS     LEADING     CASES. 


defect  to  be  amended  is  "nnt  material 
to  the  merits  of  the  case ;"  those  words, 
as  observed  by  Maule,  J.,  S.  C,  though 
occurring'  in  the  recital,  not  being  re- 
peated in  the  enacting  clause  ;  but,  with 
submission,  it  seen)s  that  the  discretion 
of  tiie  judge  ought  in  each  case  to  be  so 
limited  by  a  just  view  of  the  circum- 
stances, as,  even  without  the  guidance 
of  those  words,  to  avoid  perilling  the 
merits  by  an  amendment  under  either 
statute.  So,  it  has  been  suggested  that 
on  the  trial  of  an  issue  upon  a  plea  of 
mil  ticl  record,  a  variance  between  the 
pleading  and  the  record  produced,  would 
be  amendable  under  the  9  G.  4,  c.  15, 
although  not  so  under  3  &  4  VV.  4,  c. 
42.  Hopkins  v.  Francis,  13  Mee.  & 
W.  663,  per  Alderson,  B. ;  but  see  Davis 
V.  Dunne,  1  Dowl.  N.  S.  31.] 

The  judges  seem  disposed  to  give  a 
very  liberal  construction  to  this  statute, 
and  it  has  been  announced,  that  leave  to 
amend  under  it  will  not  be  refused  on 
account  of  the  supposed  hardship  or  im- 
propriety of  the  action,  Doe  dem.  Mar- 
riot  v.  Edwards,  1  M.  &  Rob.  321,  Parke, 
B. ;  [but  Alderson,  B.,  refused  to  alter 
the  day  of  the  demise  laid  in  the  decla- 
ration to  a  day  after  a  demand  of  pos- 
session had  been  made,  where  the  reco- 
very in  ejectment  would  disturb  an 
equitable  arrangement  to  which  the 
lessor  of  the  plaintiff  had  been  a  party. 
Doe  d.  Loscombe  v.  Clifford,  2  Car.  & 
K.  448]  "Unless,"  said  Parke,  B.,  in 
yainsbury  v.  Matthews,  4  Mee.  &  W, 
347,  "the  judges  are  very  liberal  in  the 
allowance  of  amendments,  the  rule 
which  binds  a  plaintiff"  to  one  count  will 
operate  very  harshly."  [See  to  the 
same  effect  per  Alderson,  B.,  in  Parry 
v.  Fairhurst,  5  Tyrw.  6S5;  2  C.  M.  & 
R.  191,  S.  C  ;  and  per  Tindal,  C.  J., 
Maule  and  Bosanquet,  JJ.,  Smith  v. 
Knowelden,  2  Man.'  &  Gr.  561.  The 
power  to  amend  under  the  statute  being 
confined  to  variances,  "»oi  material  tn 
the  merits  of  the  case,^'  (meaning  there- 
by not  merely  legal  merits  on  demurrer, 
but  such  as  are  required  in  an  affidavit 
of  merits,  per  Alderson,  B.,  5  Mee.  & 

r*33161  ^^'  '^'~'^'^  "^"'^  *"^  which  the 
'-  '  J  opposite  party  cantiot  have  been 
prejudiced  in  the  conduct  of  his  action, 
prosecution,  or  defence,"  the  propriety 
of  an  amendment  must,  in  each  case, 
depend  on  its  own  peculiar  circum- 
stances. To  lay  down  any  rule,  there- 
fore, which  should  apply  to  every  case 
would  be  manifestly  impossible,  and  per- 


haps the  most  convenient  morle  of  con- 
sidering the  decisions  upon  this  statute 
will  be  to  advert  in  the  first  instance  to 
those  which  have  limited  the  jurisdic- 
tion as  well  as  the  discretion  of  the 
courts  and  judges  in  acting  upon  it.  It 
has  already  been  seen  that  the  court 
above  cannot  control  the  refusal  of  the 
judge  at  Nisi  Prius  to  amend,  Doe  v. 
Errington,  supra,  and  although  a  judge 
at  Nisi  Prius,  under  sec.  23,  tnay,  on 
allowing  an  amendment,  impose  terms 
on  the  party  asking  for  it,  yet  the  court 
in  banc  has  no  similar  power  when  act- 
ing under  sect.  24,  Guest  v.  Elwes,  5 
Ad.  &  Ell.  118;  Serjeant  v.  Chafy,  5 
Ad.  &  Ell.  354;  unless  such  power  be 
reserved  to  it  by  consent  of  the  parties; 
Cooke  V.  Stratford,  13  Mee.  &  \V.  379  ; 
Perry  v.  Watts,  3  Man.  &,  Gr.  775,  4 
Sc.  N.  R.  366,  S.  C. ;  nor  can  the  court, 
under  sect.  24,  "give  judgment  accord- 
ing to  the  right  and  justice  of  the  case," 
when  the  mis-statement  which  the  judge 
has  refused  to  amend,  is  one  by  which 
the  other  party  may  have  been  preju- 
diced; nor  expunge  tlie  indorsement. 
Knight  V.  McDouall,  12  Ad.  &  Ell.  438. 
In  Doe  d.  Parsons  v.  Heather,  8  Mee.  & 
W.  158,  the  Court  expressed  an  opinion 
that  a  judge  at  Nisi  Prius  has  no  power 
under  this  statute  to  supply  a  total  omis- 
sio7i,  such  as  the  omission  of  a  year  in 
the  demise  in  ejectment.  So,  in  reple- 
vin, for  taking  in  a  house  and  brewery, 
with  an  avowry  for  taking  in  a  house, 
omitting  the  brewery,  Baron  Parke  held 
that  the  omission  could  not  be  supplied 
under  this  statute.  Bye  v.  Bower,  1  Car. 
&  M.  262;  and  see  a  previous  decision 
to  that  effect  by  the  same  learned  judge, 
John  V.  Currie,  6  C.  &  P.  618.  But 
where  in  an  action  of  trespass  with  7iot 
guilty  pleaded,  it  appeared  that  the  date 
of  the  writ  was  omitted  in  the  jSisi 
Prius  record,  so  that  the  damages  could 
not  be  correctly  estimated,  Parke,  B., 
allowed  the  writ  itself,  which  was  pro- 
duced and  proved,  to  be  annexed  to  the 
record,  to  supply  the  date,  and  the  court 
above  held  that  he  was  right,  and  seem- 
ed to  think  that  even  if  the  date  had 
been  inserted  on  the  record  upon  proof 
of  the  writ  itself,  it  might  have  been 
done,  there  being  something  to  amend 
by,  Co.x  V.  Painter,  7  C.  &  P.  769,  6  Ad. 
&  Ell.  492,  and  see  Forman  v.  Davis,  9 
C.  &,  P.  127 ;  Ernest  v.  Brown,  2  Mo. 
&  R.  13.  It  seems  clear  that  a  judge  at 
Nisi  Prius  has  no  power  to  make  an 
order  for  the  amendment  of  the  record 


B  R  I  S  T  0  W     V.     AV  11 1  G  H  T. 


637 


at  a  future  time  afler  verdict,  Brashier 
V.  Jackson,  6  Mee.  &  W.  549,  because, 
as  observed  by  Baron  Alderson,  at  p. 
555,  "  the  jury  are  to  pass  their  opinion 
upon  tlie  amended  record  ;"  andsee  Doe 
r^oo,  -,  d.  Bennett  v,  *Long,  9  C.  &, 
'-  -'p.  773.     Nor  can  lie  make  an 

amendment  which  would  introduce  a 
new  contract  and  a  new  breach,  as,  by 
altering  a  declaration  upon  an  actual 
demise  into  one  upon  an  agreement  to 
demise,  and  a  breach  stating  an  eviction, 
to  one  negativing  title  to  demise,  Bras- 
hier V.  Jackson,  supra  ;  nor  can  a  judge 
make  an  amendment  which  would  occa- 
sion a  different  set  of  issues,  per  Tindal, 
C.  J.,  Callender  v.  Dittrich,  4  iMan,  & 
Gr.  90,  or  make  the  pleading  bad,  per 
Cresswcll,  J.,  S.  C,  Evans  v.  Powis,  1 
Exch.  601,  or  introduce  entirely  new 
facts,  David  v.  Preece,  5  Q,.  B.  440 ; 
Boucher  v.  Murray,  6  Q.  B.  362 ;  see 
Perry  v.  Watts,  3  Man.  &  Gr.  775.  In 
Bowers  v.  Ni.xon,  2  Car.  &  K.  372,  Mr. 
Justice  Maule  expressed  an  opinion  that 
the  power  of  amendment  does  not  ex- 
tend to  cases  where  a  party  has  design- 
edly set  forth  his  own  view  of  the  legal 
effect  of  an  instrument,  from  which  the 
judge  differs,  (but  see  VVhitvvell  v. 
JScheer,  8  Ad.  &  Ell.  301 ;)  and  the 
Court  of  Queen's  Bench  doubted  whe- 
ther it  could  be  exercised  under  this 
statute  where  a  defendant  would  thereby 
be  deprived  of  his  motion  in  arrest  of 
judgment,  Atkinson  v.  Raleigh,  3  Q.  B. 
79.  {It  has  since  been  decided  in  the 
Common  Pleas,  that  it  is  not  any  objec- 
tion to  an  amendment  under  the  statute, 
that  it  may  remove  a  ground  of  motion 
in  arrest  of  judgment ;  Harvey  v.  John- 
son, 6  C.  B.  295,  306.}  In  Geekie  v. 
Monck,  1  Car.  &  K.,  the  Lord  Chief 
Baron  refused  an  amendment  to  a  plain- 
tiff who  had  previously  obtained  a  judge's 
order  to  make  it  upon  payment  of  costs, 
but  of  which  he  had  not  availed  himself; 
and  in  Doe  d.  Poole  v.  Errington,  1  Mo. 
&  R.  344,  Taunton,  J.,  refused  to  allow 
a  joint  demise  by  two,  to  be  amended  to 
a  several  demise  by  each;  see  Prud- 
homme  v.  Frazer,  1  Mo.  &  R.  435. 
Where  one  of  several  defendants  sued 
in  debt  was  not  fixed  by  the  evidence, 
Alderson,  B.,  refused  to  strike  his  name 
out,  Cooper  v.  Whilehouse,  6  C.  &  P. 
545.  But  whenever  the  proposed  amend- 
ment would  not,  if  made,  cast  an  addi- 
tional burden  of  proof  on  the  opposite 
party,  or  alter  the  form  of  the  record,  so 
as  to  make  it  probable  that  a  different 


course  of  pleading  would  have  been 
adopted  had  the  record  been  originally 
framed  as  amended,  the  judges  are  libe- 
ral in  the  exercise  of  the  power  given 
them  by  this  statute  ;  see  the  judgment 
of  Baron  Rolfo  in  Cooke  v.  Stratford,  13 
Mee.  &.  W.  3>i7,  and  Southee  v.  Denny, 
1  Exch.  202.  To  enter  at  any  length 
into  the  particulars  of  the  numerous 
cases  in  which  amendments  have  been 
allowed  at  Nisi  Prius,  would  be  quite 
beyond  the  scope  of  the  present  note; 
but  some  may  be  usefully  referred  to,  as 
showing  the  disposition  of  the  judges  to 
give  full  effect  to  these  salutary  enact- 
ments. Thus,  in  actions  upon  negotia- 
ble instruments,  t!;e  statement  of  an 
instrument  declared  on  as  a  bill  was 
altered  to  that  of  a  note;  per  Alderson, 
B.,  Moilliet  V.  Powell,  6  C.  &.  P.  233; 
and  the  Court  of  Exchequer  has  ap- 
proved of  the  alteration  of  the  state- 
ment of  a  note  as  payable  "  on  de- 
mand" to  one  payable  "  twelve  months 
*after  date,"  Beckett  V.  Dutton,  r^.i.ii  ? -i 
7  Mee.  &  W.  157;  see  Cooke  ^  '^'^^'^  J 
V.  Stratford,  13  Mee.  &  W.  379;  Hig- 
gins  V,  Nicliolls,  7  Dowl.  P.  C.  551 ;  and 
under  the  9  G.  4,  c.  15,  a  variance  in 
the  name  of  the  payee  of  a  bill  not  be- 
ing a  parly  to  the  action,  was  amended. 
Parks  V.  Edge,  1  C.  &  M.  429;  but  see 
Jelf  V.  Oriel,  4  C.  &  P.  22.  In  an  ac- 
tion upon  ?i guaranty  stated  to  have  been 
given  "  in  consideration  of  past  advances 
by  A.  &  B.  (plaintiffs)  and  th;it  A.  &  B. 
would  from  time  to  time  make  advances 
to  Z.,"  that  statement  was  held  amend- 
able to  the  statement  of  a  guaranty  in 
consideration  of  "advances  made  and  to 
be  made  by  A.  &  B.,  or  by  any  other 
persons  of  whom  the  firm  might  consist;" 
and  also  an  allegation  of  a  promise  to 
pay  "the  plaintiffs"  was  held  amendable 
to  a  promise  to  pay  "  the  plaintiffs,  or 
those  who  might  constitute  the  firm," 
Chapman  v.  Sutton,  2  C.  E.  634.  So  a 
statement  that  the  guaranty  was  given 
in  consideration  of  a  sale  and  delivery  of 
goods  to  S.  "io  an  extent  not  exceeding 
10(1?.,"  was  held  amendable  to  "in  con- 
sideration of  your  supplying  S.  uiilh 
goods  to  the  extent  of  lOOZ.,"  Dimmock 
V.  Sturla,  14  Mee.  &.  W.  758,  and  see 
Smith  V.  Brandram,  2  Man.  &  Gr.  244. 
In  actions  upon  other  Contracts,  a  pro- 
mise to  pay  has  been  altered  to  a  pro- 
mise to  guarantee,  Hanbury  v.  Ella,  1 
Ad.  &  Ell.  61.  So  a  count  for  goods 
bargained  and  sold,  may  be  amended  (on 
terms)  to  a  special  count  for  not  accept- 


638 


SMITH    S     LEADING     CASES. 


ing,  per  Parke,  f!.,  Jacob  v.  Kirk,  2  Mo. 
&L  R.  'Jil.  And  tlie  Court  of  Exchequer 
approved  of  the  amendment  of  a  contract 
stated  to  be  "  to  build  a  room,  booth,  or 
huildiug,  according  to  certain  plmis, 
by  the  2Sth  June,  1838,"  to  a  contract 
"to  place  certain  scats  or  tables,  &c.  to 
be  completed  four  or  five  days  before  the 
•2rnh  June,  1838,"  Ward  v.  Pearson,  5 
Mee.  &  VV.  16.  So  the  statement  of  a 
contract  as  carriers  has  been  altered  to 
one  as  wharfinsjer?.  Parry  v.  Fairhurst, 
2  C.  M.  &  li.  190;  see  Humming  v. 
Parry,  G  C.  &  P.  580;  see  also  Sains- 
bnry  v.  Matthews,  4  Mee.  &  VV.  343; 
l;ead  V.  Dunsmore,  9  C.  &  P.  ,583;  Ivey 
V.  Young-,  1  Mo.  &  R.  545;  Boys  v.  An- 
cell,  5  N.  C.  390;  VVhitwell  v.  Scheer, 
8  Ad.  «&,  Ell.  301 ;  Gurford  v.  Bayley,  3 
Man.  &  Gr.  781,  4  So.  N.  R.  393,  S.  C. ; 
Nickisson  v.  Trotter,  3  Mee.  &  W.  130. 
And  in  Debt,  the  amount  of  the  penalty 
of  a  bond  declared  on  may  be  amended, 
Hill  V.  Salt,  2  C.  &  M.  400.  In  Reple- 
vin,  the  terms  of  the  tenancy  in  an 
avowry  may  be  amended  in  the  holding, 
Gayler  v.  Farrant,  4  N.  C.  286,5  Scott, 
70],  S.  C. ;  the  amount  of  rcn<,  see  Ro- 
berts V.  Snell,  1  Man.  &.  Gr.  577  ;  or  by 
substituting  an  avowry  at  common  law 
fur  one  under  the  statute,  S.  C.  perTin- 
dal,  C.  J. ;  see  also  Serjeant  v.  Chafy,  .5 
AA.  &L  Ell.  354.  In  Ejectment,  the  day 
of  the  demise  as  laid  may  be  altered,  to 
suit  the  right  of  entry  as  proved.  Doe  d. 
r^o.iT  -1  Edwards  v.  Leach,  3  Man.  & 
L  ^Ale  J  gj._  ..^.oy.  Doe  (]_  Sim[)son  v. 

Hall,  5  Man.  &  Gr.  795;  likewise  the 
description  of  the  premises  has  been 
amended,  Doe  d.  Marriott  v.  Edwards,  1 
M.  «fc  Ptob.  319.  In  actions  for  Slander, 
the  power  of  amendment  under  this  sta- 
tute has  been  frequently  used  ;  in  one  of 
the  latest  cases,  Soulhee  v.  Denny,  1 
Exch.  Rep.  196,one  part  of  the  slanderous 
language  as  laid  was,  "  there  have  been 
many  inquests  held  upon  persons  who 
have  died  because  he  attended  them ; 
and  they  were  altered  by  amendment  to 
those  proved,  viz.,  "  that  several  have 
died,  that  he  (the  plaintiff)  had  attended, 
and  there  have  been  inquests  held  upon 
them," — and  the  court  approved  of  the 
amendment,  though  pressed  with  the 
argument  that  the  defendant  might  have 
been  able  to  justify  the  words  as  proved, 
although  not  those  as  laid.  It  was  ob- 
served however  by  the  court,  that  no  ap- 
plication for  a  postponement  had  been 
made  at  the  trial,  and  that  even  striking 
out  the   words  altered,  there  remained 


sufficient  to  support  the  declaration  ;  see 
also  Smith  v.  Knowelden,  2  Man.  «fe  Gr. 
561  ;  Pater  v.  Raker,  3  C.  B.  831 ;  Jen- 
kins v.  Phillips,  9  C.  &  P.  766,  where, 
it  appearing  tha^  the  words  had  been 
spoken  in  Welsh,  but  that  the  words 
laid  were  an  exact  translation  of  the 
words  spoken,  Coleridge,  J.,  allowed  the 
Welsh  words  to  be  inserted.  See  Foster 
V.  Pointer,  9  C.  &  P.  718,  a  case  of  libel  ; 
and  Mark  v.  Dcnsham,  1  Mo.  &.  R.  442, 
a  case  of  false  warranty.  In  an  action 
against  the  sheriff,  a  count  for  an  escape 
may  be  amended  to  one  for  negligently 
omitting  to  arrest,  Guest  v.  Elwes,  5 
Ad.  &  Ell.  118.  As  to  amending  where 
there  is  a  demurrer  on  the  record,  see 
Duckworth  v.  Harrison,  5  Mee.  «&  VV. 
427 ;  Chanter  v.  Leese,  4  Mee.  &  W.  295. 
It  is  said  to  be  no  objection  to  an  amend- 
ment under  this  statute,  that  the  amount 
of  damages  may  be  affected  by  it,  per 
Maule,  J.,  Smith  v.  Knowelden,  2  Man. 
&  Gr.  565.  To  this  enumeration  of  some 
of  the  cases  decided  upon  these  statutes, 
it  may  be  added  that  whenever  the  mis- 
statement to  be  amended  is  one  by  which 
the  opposite  party  may  be  prejudiced  un- 
less a  postponement  or  other  terms  be 
imposed,  he  should  apply  for  such  post- 
ponement or  other  terms  at  the  time; 
and  his  omission  to  do  so  nnay  be  taken 
to  show  that  he  really  was  not  preju- 
diced by  the  amendment  made  ;  see  the 
judgment  of  the  court  in  Southee  v.  Den- 
ny, 1  Exch.  196.  As  to  the  costs  of 
amending  variances,  it  has  been  said  that 
if  upon  the  amendment  of  a  declaration 
the  defendant  submits  to  pay  whatever 
is  recoverable  under  the  amended  decla- 
ration, he  will  be  entitled  to  the  costs 
from  the  time  at  which  he  could  have 
paid  the  amount  into  court;  but  if  he 
insist  on  going  to  the  jury  upon  the 
amended  record,  he  will  only  bo  entitled 
to  the  costs  of  such  amendment;  Smith 
V.  Brandram,  2  Man.  &  Gr.  244,  2  Sc. 
N.  R.  .539,  *S.  C]  Besides  .  ^„gj  ^, 
these  statutes,  there  is  a  provi-  ^  -^  J 
sion  in  one  of  the  rules  of  court  made  in 
pursuance  of  it,  in  Hilary  Term,  1834, 
which  diminishes  the  danger  of  variance 
that  formerly  existed  in  one  particular 
case.  It  was  a  well-established  doctrine, 
that  where  a  party  prescribed  in  plead- 
ing, and  his  prescriptive  right  was  tra- 
versed, he  was  bound  upon  the  trial  to 
prove  a  prescription  to  the  full  extent  of 
that  which  was  put  in  issue.  He  might 
indeed  prove  a  larger  prescription,  and 
then,  as  that  would  have  included  the 


B  R  I  S  T  O  W    V.    WRIGHT. 


639 


prescription  traversed,  he  would  liave 
succeeded  ;  but  he  could  never  be  ad- 
mitted to  sever  the  prescription  tra- 
versed, so  as  to  take  a  verdict  for  as 
much  of  it  as  he  could  prove  :  but  if  the 
issue  were  on  a  Jarger  right,  and  the 
proof  were  of  a  smaller  one,  he  must 
have  altng-ether  failed,  upon  the  ground 
of  a  variance  between  the  alleoation 
traversed,  and  the  evidence  adduced 
upon  the  trial  in  support  of  it.  1  VVm. 
yaund.  269,  in  notis;  1  Camp.  309;  Ro- 
gers v.  Alien,  et  notas;  9  East,  185;  4 
Camp.  189.  Therefore  among  other  in- 
stances, in  Pring  v.  Henley,  B.  N.  P. 
59,  it  was  held  that  if  the  plaintift'  in 
replevin  for  taking  cattle,  in  answer  to 
an  avowry  for  damage  feasant,  prescribe 
for  common  for  all  commonable  cattle, 
evidence  of  a  right  of  common  for  sheep 
and  horses  only,  would  not  maintain  the 
issue,  though,  if  he  had  a  general  com- 
mon, and  prescribed  for  common  for  any 
particularsort  of  cattle,  it  would  be  good. 
However,  as  this  doctrine  was  found  pro- 
ductive of  great  injustice,  it  was  direct- 
ed by  Reg.  Gen.  Hil.  1834,  that  "  where, 
in  an  action  of  trespass  quare  clausum 
fregit,  the  defendant  pleads  a  right  of 
way  with  carriages,  and  cattle,  and  on 
foot,  in  the  same  plea,  and  issue  is  taken 
thereon,  the  plea  shall  be  laken  distri- 
butively ;  and  if  a  riglit  of  way  with 
cattle  or  on  foot  only  shall  be  found  by 
the  jury,  a  verdict  shall  pass  for  the  de- 
fendant in  respect  of  such  of  the  tres- 
passes proved  as  shall  be  justified  by  the 
naht  of  way  so  found  ;  and  for  the  plain- 
tiff in  respect  of  such  of  the  trespasses 
as  shall  not  be  so  justified."  See  Hig- 
liam  v.  Rabett,  5  Bing.  N.  C.  622. 

''  And  where,  in  an  action  of  trespass 
quare  clausum  fregit,  the  defendant 
pleids  a  right  of  common  of  pasture  for 
divers  kind  of  cattle,  ex.  gr.,  horses, 
sheep,  o.xen,  and  cows,  and  issue  is  taken 
thereon  ;  if  a  right  of  common  for  some 
particular  kind  of  commonable  cattle 
only  be  found  by  the  jury,  a  verdict  shall 
pass  for  the  defendant  in  respect  of  such 
of  the  trespasses  proved  as  shall  be  jus- 
r*'rV21  ^^^^^  ^y  '^'^'^  *right  of  common  so 
■-  ' '  J  found;  and  for  the  plaintiff  in 
respect  of  the  trespasses  which  shall  not 
be  so  justified." 

"And  in  all  actions  in  which  sucii 
right  of  way  or  common  as  aforesaid,  or 
other  similar  right,  is  so  pleaded  that 
r  ^'W")  1  '-'"^  allegations  as  to  the  extent 
L  '  ■  "'^  J  of  the  right  are  ^capable  of  be- 
ing tiiken  distributively,  they  shall  be 


construed  distributively."  See  Knight 
V.  Woore,  3  Bine.  N.  C.  3;  Phythian  v. 
White,  3  C.  M.^t  R.  216.  As  to  the 
efi^ect  of  a  severed  verdict  on  such  a  plea, 
see  Knight  v.  Woore,  3  Bing.  N.  C.  534. 
However,  though  proof  of  a  more  exten- 
sive right  will  now  support  the  claim  of 
a  less  extensive  one,  yet  the  latter,  as  is 
obvious,  must  be  such  a  one  as  is  in  con- 
templation of  law  capable  of  being  in- 
cluded in  the  former:  thus  the  claim  of 
a  profit  d  prendre  does  not  include  that 
of  a  mere  easement,  Bailey  v.  Appleyard, 
8  Ad.  &  Ell.  161;  and  see  Higham  v, 
Rabett,  5  N.  C.  622.  [So  a  right  of  com- 
mon over  certain  commons,  for  sheep 
levant  cnuchant  upon  Blackucre,  cannot 
be  sustained  under  a  claim  for  and  in 
respect  of  Blackacre,  to  a  separate  right 
of  feeding  and  folding  an  unlimited 
number  of  sheep  over  those  commons. 
Ivatt  V.  Mann,  3  Man.  &  Gr.  691.  See 
Paddock  v.  Forrester,  3  Man.  &  Gr.  903 ; 
Anderson  v.  Chapman,  5  Mee.  &  W. 
483;  Drewell  v.  Towler,  3  B.  &  Ad. 
735.] 

The  danger  of  a  variance  was  always 
much  diminished  by  the  circumstance 
that  there  existed  a  certain  class  of  al- 
legations which  were  always  held  to  be 
distributive  and  divisible,  so  that  it  was 
not  necessary  to  prove  them  in  their  full 
extent.  Thus  the  allegations  of  trespass 
in  a  declaration,  Wilson  v.  Lainson,  5 
Dowl.  341 ;  [Routledge  v.  Abbott,  8  Ad. 
&  Ell.  592,]  and  of  payment  in  a  plea, 
Cousins  V.  Paddon,4  Dowl.  488,  [5Tyrw. 
53.5,  2  C.  M.  &  R.  547  ;  Falcon  v.  Benn, 
2  Q.  B.  314,]  are  divisible,  and  the  plain- 
tifi^  in  the  one  case  and  defendant  in  the 
other  will  succeed  only  for  so  much  as 
he  can  prove.  [And  where  A.  declared 
that  he  was  possessed  of  a  messuage  and 
land,  and  by  reason  thereof,  entitled  to 
common,  he  recovered  upon  proof  that 
he  was  possessed  of  land  only.  Ricketts 
v.  Solway,  2  B.  &  Ad.  360.]  But  where 
the  action  was  for  trespass  to  a  trail 
which  turned  out  to  be  half  the  plain- 
tiff's and  half  defendant's,  semble  that 
the  plaintifi'  could  not  recover  on  proof 
of  an  injury  to  his  side,  Murly  v.  Mac- 
dermott,  8  Ad.  &  Ell.  142,  [the  distinc- 
tion seems  to  be  between  claiming  too 
large  a  right,  and  claiming  the  right  in 
respect  of,  or  as  applicable  to,  more  than 
the  proof  warrants  :  in  the  first  case  the 
right  itself  cannot  be  divided  ;  but  in  the 
other,  it  is  not  the  right  itself  which  is 
affected  by  the  proof,  but  only  the  sub- 
jects in  respect  of  wliicli  it  is  claimed,  (  r 


640 


SMITHS     LEADING     CASES. 


to  which  its  exercise  is  soiiglit  to  be  ap- 
plied. See  Coardswurlh  v.  Torkincrton, 
1  Q.  B.  7S-2;  Briinton  v.  Hail,  1  Q.  B. 
795;  Drewell  v.  Towler,  '.i  B.  &,  Ad. 
735.]  The  consequence  of  this  distri- 
butive mode  of  reading  pleas  and  decla- 
rations is  frequently  to  save  the  plaintiff 
from  the  inconvenience  of  a  new  assiirn- 
T*-ViO/ 1  fnent:  see  Cowling- v.  Higfgin- 
1-  •^•^^''  J  son,  ^4  Mee.  &  \V.  245 ;  Free- 
man V.  Crafts,  4  Mee.  &  W.  4;  James 
V.  Lingham,  5  Bing'.  N.  C.  5.53.  [Rout- 
ledge  V.  Abbott,  8  Ad.  &-  Ell.  592;  Al- 
ston V.  Mills,  9  Ad.  .t  Ell.  249;  and  see 
Smith  V.  Royston,  8  Mee.  &  W.  38-5, 
where  it  was  decided  that  the  declara- 
tion in  trespass  quare  cluusum  fregit 
being  divisible,  a  plea  of  liberuvi  lene- 
rnenlum  is  satisfied  by  proof  that  the 
place  on  which  the  trespasses  were  com- 
mitted was  the  defendant's  freehold, 
though  the  declaration  named  a  place  to 
part  of  which  the  defendant  was  not  en- 
titled.] 

The  opinion  was  for  a  long  time  gen- 
erally entertained,  that  in  consequence 
of  the  divisible  nature  of  a  plea  of  pay- 
ment, and  of  the  usual  subject-matter  of 
a  plea  of  set-off,  a  defendant  pleading 
those  pleas  might  obtain  a  verdict  upon 
part  of  each,  though  he  might  fail  in  es- 
tablishing enough  of  either  to  form  a 
complete  answer  to  the  action.  The 
Court  of  Exchequer,  has  however,  lately 
decided  otherwise.  Tuck  v.  Tuck,  5  Mee. 
&  W.  109;  Kilner  v.  Bailey,  ibid.  382, 
and  see  Moore  v.  Butlin,  7  Ad.  &  Ell. 
59.5,  [and  Falcon  v.  Benn,  2  Q.  B.  314, 
where  t!ie  case  of  Tuck  v.  Tuck  was  re- 
ferred to  in  the  judgment  without  disap- 
probation.] Great  objections  might,  I 
apprehend,  be  urged  against  these  deci- 
sions. [See  vol.  2,  442,  Green  v.  Marsh, 
5  Dovvl.  669;  and,  as  to  the  difficulties 
which  arise  in  replying  affirmatively  to 
part  of  a  cause  of  set-ofli  see  Francis  v. 
Dodsworth,  4  C.  B.  202.] 

There  is  another  distinction  which  fre- 
quently prevented  injustice  from  being 
occasioned  by  a  trifling  variance,  that, 
namely,  between  matter  of  description 
and  matter  of  averment:  for  though  it 
was  necessary  to  prove  the  former  lite- 
rally, it  was  always  sufficient  that  the 
latter  should  be  proved  siibstantialhj. 
See  Pope  v.  Skinner,  Hob,  72,  B.  N.  P. 
400;  Forty  v.  Imber,  6  East,  434; 
Young  v.  Wriaht,  1  Camp.  139;  Stod- 
dart  V.  Barker^  3  B,  &  C.  2;  [Saxbv  v. 
Wilkin,  11  Mee.  &  W.  622;  Galloway 
V.  Jackson,  3  Man.  &  Gr.  960.] 


By  the  different  legislative  provisions 
above  enumerated,  the  severity  of  the 
law  relating  to  variances  in  civil  cases 
has  been  much  alleviated,  and  veiy  bene- 
ficial efi'ects  have  been  produced.  In 
criminal  cases,  however,  the  law  of  va- 
riance, as  laid  down  in  Bristovv  v.  Wright, 
still  prevails  in  all  its  pristine  severity; 
except,  indeed,  that  it  has  received  the 
slight  modification  produced  by  Lord 
Tenterden's  act,  and  which  has  been 
above  stated.  Thus,  wlien  the  prisoner 
was  indicted  for  stealing  "four  live  tame 
turkeys,"  and  it  turned  out  tliat  the  tur- 
keys had  been  killed  before  the  prisoner 
brought  them  into  the  county  in  which 
he  was  indicted,  it  was  held  that  the 
word  lice  was  descriptive,  and  could  not 
be  rejected  as  surplusage,  and  conse- 
quently that  he  was  entitled  to  his  ac- 
quittal. Edward's  case,  Russ.  and  Ry. , 
497.  So  if  the  name  of  the  prosecutor 
be  *stated  in  the  indictment  r  :^.,.i.2  . -i 
wrongly,  as  if  Shakepear  be  '-  '  -* 
put  for  Shakespeare,  or  JWCann  for 
jyrCarn,  the  variance  will  be  fatal.  Jan- 
net's  case,  Russ.  <fc  Ry.,  351  ;  Shake- 
speare's case,  10  East,  63.  Indeed,  if 
the  name  used  were  idem  sonans  with 
the  true  one,  no  variance  would  be  held 
to  exist;  as  if  Segrave  were  put  for 
Seagrave,  Williams  v.  Ogle,  2  Str.  8'^9; 
and  Benedetto  for  Beneditlo  has  been 
considered  no  variance.  Abitbol  v.  Be- 
neditto,  2  Taunt.  401. 

So,  too,  if  the  name  of  any  third  per- 
son be  material  to  be  stated  in  the  indict- 
ment, it  must  be  correctly  stated,  or  the 
variance  will  be  fatal  :  see  Durore'scase, 
1  Leach,  35"J;  Jenk's  case,  2  East,  P. 
C.  514:  Deely's  case,  1  xMoody,  303; 
though,  if  the  mention  of  that  third  per- 
son could  be  rejected  as  wholly  imma- 
terial, a  variance  in  stating  it  would  not 
be  fatal;  Pye's  case,  1  Leach,  3-52,  n.; 
for  tiien  the  rule  laid  down  in  Bristow  v. 
Wright,  and  explained  in  Williamson  v. 
Alison,  would  apply,  viz.,  that  wiien  the 
whole  of  an  averment  may  be  struck  out, 
without  destroying  the  plaintiff's  right  of 
action,  it  is  unnecessary  to  prove  it; 
wiiich  rule  is  as  much  applicable  to  an 
indictment  as  to  an  action  ;  and  was  ex- 
pressed as  follows  by  Lord  Ellenborouglt, 
in  Hunt's  case,  2  Camp.  5S-5,  viz. :  "  It 
is  a  distinction  that  runs  through  the 
whole  of  the  criminal  law,  that  it  is 
enough  to  prove  so  much  of  an  indict- 
ment as  shows  tiie  prisoner  to  have  com- 
mjtted  a  substantive  crime  therein  spe- 
cified."    And  tiierefore  it  isthe  common 


BRISTOW     V.     WRIGHT. 


(i4i 


practice  to  indict  a  man  for  stealing  seve- 
ral articles,  when  in  fact  he  has  only 
stolen  one,  on  proof  of  which  the  allega- 
tion respecting  the  others  is  rejected  as 
surplusage,  and  he  is  convicted  of  the 
larceny  which  he  has  really  committed. 
So  it  frequently  happens  that  a  man  is 
indicted  for  committing  a  crime  with 
certain  aggravations,  as  for  committing 
burglary  and  larceny,  or  larceny  in  a 
dwelling-house,  some  person  therein  be- 
ing put  in  fear.  In  such  a  case,  if  the 
allegations  in  the  indictment  respecting 
the  matter  of  aggravation  be  not  proved  ; 
as  if,  in  the  former  case  the  theft  turn 
out  to  have  been  committed  by  day,  or, 
in  the  latter  case,  not  in  a  dwelling- 
house  ;  they  may  be  rejected  as  sur- 
plusage, and  the  defendant  may  still  be 
found  guilty  of  simple  larceny;  see 
VVilhal's  case,  1  Leach,  88;  Ethering- 
ton's  case,  2  Leach,  671.  This  doctrine 
is  exemplified  by  the  recent  case  of  R. 
V.  Jones,  2  B.  &  Ad.  61L  Theact9G. 
4,  c  41,  provides  that  no  person  (not  a 
parish  patient)  shall  be  taken  into  any 
house  for  tlie  reception  of  lunatics 
without  a  certificate  of  two  medical 
practitioners.  Sect.  30  enacts  that 
any  person  who  shall  knowingly,  and 
with  intention  to  deceive,  sign  any  such 
certificate,  shall  be  guilty  of  a  mis- 
demeanor; and  likewise  that  any  physi- 
cian, surgeon,  &c.,  who  shall  sign  any 
such  certificate,  loithout  having  visited 
and  personally  examined  the  patient, 
shall  be  guilty  of  a  misdemeanor.  The 
indictment  stated  that  the  defendant,  a 
surgeon,  knowingly,  and  with  intention 
to  deceive,  signed  a  certificate  required 
by  the  act,  loithout  having  visited  and 
personally  examined  the  patient,  con- 
trary to  the  statute.  The  jury  nega- 
tived any  intention  to  deceive,  and  found 
pooo-]  the  defendant  guilty,  ^subject  to 
'-  -'  the  opinion  of  the  court  on  a  case 
containing  in  substance  what  is  above 
stated.  The  court  held  that  the  convic- 
tion was  right.  "Two  species  of  misde- 
meanor," said  Mr.  Justice  Taunton, 
"  are  constituted  by  the  twentieth  sec- 
tion of  the  act.  To  the  ofience  first  de- 
scribed, knowledge  and  an  intention  to 
deceive  are  essential;  but  the  second 
clause  makes  it  a  substantive  offence  to 
certify  without  having  visited,  independ- 
ently of  knowledge  or  intention.  The 
objection  to  this  indictment  on  the  latter 
clause  is,  not  that  the  offence  is  charged 
with  less  fulness  than  was  requisite,  but 
with  more.  But  if  the  averment  which 
Vol.  I.— 41 


has  been  added  to  the  statutory  descrip- 
tion of  the  offence  be  unnecessary,  there 
is  no  reason  that  it  should  not  be  reject- 
ed, A  man  may  be  convicted  of  man- 
slaughter on  an  indictment  for  murder, 
and  of  larceny  on  an  indictment  for  bur- 
glary; and  where  an  assault  is  alleged 
with  certain  intents,  the  party  may  be 
found  guilty  of  assaulting,  with  only  one 
of  the  intents  alleged.  These  are  strong- 
er cases  than  the  present,  especially  the 
first  two,  where  the  words  rejected 
imply  a  great  aggravation  of  crime, 
and  call  for  a  much  higher  punish- 
ment." 

But  this  rule,  viz.,  "that  it  is  suffi- 
cient to  prove  a  substantive  offence  con- 
tained in  the  indictment,"  must  be  re- 
ceived with  one  qualification,  viz.,  that 
the  offence  proved  must  be  of  the  same 
degree  as  the  offence  charged  in  the  in- 
dictment; for  felony  and  misdemeanor 
are  offences  of  so  distinct  a  nature,  and 
so  different  in  their  consequences,  that 
they  cannot  be  charged  in  the  same  in- 
dictment; nor  can  a  man  accused  of  one 
be  convicted  of  the  other.  Therefore, 
if  a  man  be  indicted  for  a  misdemeanor, 
and  his  offence  turn  out  to  be  a  felony, 
he  must  be  acquitted,  and  a  new  bill 
preferred  against  him  for  the  graver 
offence.  So  where  the  prisoner  was  in- 
dicted for  larceny  of  a  parcliment,  which 
turned  out  to  concern  the  realty,  it  was 
contended  that  he  might  receive  judg- 
ment for  the  trespass  of  which  he  had 
been  guilty  in  taking  it.  But  tiie  court 
held  otherwise,  and  directed  him  to  be 
discharged.  Westbeer's  case,  1  Leach, 
14:,  2  Str.  1133.  To  this,  there  is,  how- 
ever, an  exception,  created  by  stat.  7  &l 
8G.  4,  c.  29,  s.  53,  which  enacts  that  if 
a  defendant,  indicted  for  obtaining  pro- 
perty under  false  pretences,  appear  at 
the  trial  to  have  obtained  it  in  such  a 
manner  as  amounts  to  larceny,  he  shall 
not  be  acquitted  by  reason  thereof. 
But  the  converse  case  is  not  provided 
for;  and  therefore,  if  it  turned  out  that 
a  prisoner  indicted  for  larceny  had  ob- 
tained the  property  by  false  pretences, 
he  would  be  entitled  to  his  acquittal. 
There  is  another  exception  introduced 
by  Stat  1  Vict.  c.  85,  s.  11,  by  which 
any  person  indicted  for  a  felony  which 
includes  an  assault,  may  be  acquitted  of 
the  former  and  found  guilty  of  the  latter 
charge.  And  by  9  G.  4,  c.  31,  s.  14,  a 
woman  indicted  for  the  felony  of  child- 
murder  may  be  convicted  of  the  misde- 
meanor of  concealment. 


C 12  smith's    leading    cases, 

[A  recent  enactment  lilvL'ly  to  be  very  feloniously    receiving    Ptolen    properly 

useful  ill  cases  analojrous  to  tlie  above,  may  bo  joined   in   ihe  same  indictment 

is  Ihe  11  &L  12  Via.  c.  40,  the  third  sec-  with  a  count  for  feloniously  stealinjj  the 

liun  of  wiiich  provides  tliat  a  count  for  same  property.] 


The  ground  of  the  rule,  as  now  understood,  \vbich  requires  an  immaie- 
riul  allegaliou,  in  some  cases,  to  be  proved,  is,  the  ascertaining  of  the  idcn- 
titi/  of  the  thing  which  is  the  cause  of  action.  If  the  allegation  be  not  a 
formal  jio^'t  of  that  which  is  set  forth  as  the  cause  of  action,  but  be  clearly 
separable  from  it,  it  is  surplusage,  and  an  error  there  will  do  no  harm  ;  but 
if  it  be  an  inseparable  and  characteristic  part  of  the  matter,  which  is  the 
cause  of  action,  and  such  as  fixes  its  identity,  the  variance  in  respect  to 
such  a  particular,  however  in  itself  unimportant,  between  the  matter  declared 
on,  and  the  matter  offered  in  evidence,  will  make  the  two  things  »pcc!firaI1>/ 
different;  and,  if  such  evidence  were  held  to  be  sufficient,  not  only  would 
the  other  side  be  misled  as  to  the  individual  matter,  which  he  is  called  upon 
to  oppose,  but  (which  is  the  more  important  legal  consideration,)  the  record 
would  not  show  the  specific  thing  which  was  in  controversy,  and  the  judg- 
ment would  not  be  a  bar  to  a  second  suit  upon  the  same  thing.  The  require- 
ment of  the  law,  therefore,  is,  that  the  matter  offered  in  evidence  shall  bo 
legally  identical  with  that  alleged  in  the  pleadings. 

In  respect  to  u-rittcn  instnauents,  to  records,  and  to  parol  contracts, 
many  examples  occur,  in  which  an  unimportant  particular  so  far  affects  the 
identity  of  the  thing  in  issue,  viz.,  of  the  instrument,  the  record,  or  the  con- 
tract, that  the  matter  given  in  evidence  must  correspond  in  that  particular, 
or  else  it  will  be  a  different  thing  from  that  which  is  declared  upon.  See 
Twiss  and  another  v.  Baldwin  and  another,  9  Connecticut,  291,  302. 

With  regard  to  written  instruments,  it  is  obvious,  upon  the  reason  above 
stated,  that  the  only  immaterial  matters,  in  respect  to  which  a  variance  will 
be  fatal,  are  such  as  appear  upon  the  face  of  the  instrument,  and  thereby 
affect  its  identity,  and  that  the  averment  of  an  immaterial  particular  dehors 
the  instrument  need  not  be  proved:  per  Marshall,  C.  J.,  in  Wilson  v. 
Codmau's  Executor,  3  Cranch,  193.  Thus,  as  to  deeds  and  promissory 
notes,  if  the  plaintiff  declare  that  on  such  a  day,  the  defendant  made  and 
delivered  or  executed  his  deed,  or  made  his  note,  and  the  date  of  the  deed 
or  note  when  produced,  be  different,  here  is  no  variance,  for  a  deed  may  be 
delivered,  or  a  note  made  on  one  day  and  dated  another;  Goddard's  case,  2 
Coke,  4;  Coxon  v.  Lyon,  2  Camp.  307,  note;  Barry  et  al.  v.  Crowley,  4 
Gill,  195,  204;  see  Battles  v.  Fobes,  2  Metcalf,  93,  95,  but  if  the  plain- 
tiff allege  that  the  deed  or  note  was  dated  a  certain  day,  and  the  instrument 
in  evidence  is  dated  another  day,  this  is  a  fatal  variance,  because,  says  Lord 
Mansfieli),  in  Mostyn  v.  Fabrigas,  "  it  makes  it  appear  to  be  a  different 
instrument."  Cooke  v.  Graham's  Adm'r,  3  Cranch,  229;  Stephens  v. 
Graham  and  another,  7  Sergeant  &  Eawle,  505 ;  Church  v.  Feterow,  2 
Penrose  &  Watts,  301;  see  Alder  v.  Griner,  13  Johnson,  449.  In  like 
manner,  if,  in  setting  forth  the  tenor  of  the  instrument,  the  words  <<  value 


BRISTOAV    V.    WRIGHT.  643 

received,"  be  erroneously  inserted  or  omitted,  the  variance  is  fatal ;  Saxton 
&  Tlutchcson  V.  Johnson,  10  Johnson,  418  ;  Rossiter  y-  Marsh,  4  Connec- 
ticut, 196:  but  if  in  claiming  under  an  assignment  of  an  instrument,  it  be 
stated  that  the  assignment  was  for  'value  received,'  when  it  was  not,  or  was 
by  both  administrators,  when  it  was  by  but  one,  or  was  assigned  by  another 
name,  such  a  variation  does  not  affect  the  identity  of  the  cause  of  action, 
and  is  unimportant;  Wilson  v.  Codraan's  Executor,  3  Cranch,  193;  Lauter- 
milch  V.  Kneagy,  3  Sergeant  &  Rawle,  202 ;  Wilson  v.  Irwin  and  another, 
14  id.  176.  Upon  this  distinction,  it  was  held  in  The  Chesuut  Hill  Reser- 
voir V.  Chase,  14  Connecticut,  123,  that  where  a  declaration  alleged  that  a 
corporation,  by  James  A.  Arnold  and  others,  their  committee,  made  a  cer- 
tain promissory  note,  and  the  note  when  produced  was  signed  James  *S'. 
Arnold  and  others,  committee,  there  was  no  variance,  because  though  the 
declaration  alleged  that  James  A.  Arnold  signed,  it  did  not  allege  that  ho 
signed  by  the  name  of  James  A.  Arnold,  and  he  might  have  signed  by  the 
name  of  James  S.  Arnold.  See,  also,  Pickering  v.  Pulsifer  et  al.  4  Grilraan, 
79.  But  if  a  note,  sued  on,  be  copied  in  the  declaration,  and  the  name  of 
the  payee  be  wrongly  given,  the  variance  amounts  to  a  misdescription, 
and  will  be  fatal;  Harden  v.  Harden,  1  Strobhart,  56. 

In  declaring  upon  a  record,  the  principle  is  the  same;  an  immaterial  dif- 
ference in  a  matter  not  set  forth  on  the  record  itself,  is  not  fatal ;  as,  where 
in  debt,  on  a  recognizance  of  bail,  the  declaration  alleged  that  the  defendant 
came  into  court  "  by  the  name  of  S.  F.,  of  K.  in  Gr.  county,  farmer,  and 
became  bail,"  and  the  recognizance  roll  states  that  "  S.  F.  of  the  town  of 
K.  and  county  of  D.,  farmer,"  came  into  court  and  became  bail;  this  is  not 
a  variance,  for  it  is  an  allegation  dehors  the  record,  as  the  record,  though 
it  states  that  a  person  of  the  description  which  it  gives  came  into  court,  does 
not  allege  that  by  that  description  he  came  into  court  and  became  bail,  &c. ; 
Rodman  and  others  v.  Forman,  8  Johnson,  26 ;  the  second  objection :  but 
in  reciting  the  record  itself,  the  slightest  variation  is  fatal,  for  it  makes  it  a 
different  record;  as,  for  example,  omitting  "Jr.,''  after  a  man's  .name, 
Kentland  v.  Somers,  2  Root,  437;  though  ''Jr."  is  immaterial,  and  no  part 
of  »  man's  name,  Coit  v.  Starkweather,  8  Connecticut,  290  ;  or  misstating 
the  amount,  by  a  single  penny,  Eichelberger  v.  Smyser,  8  Watts,  181. 

These,  it  will  be  observed,  are  cases  where  the  record  is  declared  on  as  the 
instrument  creating  and  constituting  the  cause  of  action;  and  the  question 
is,  of  identity  between  the  record  set  forth,  and  the  record  given  in  evi- 
dence ;  but  where  part  of  the  cause  of  action  or  defence  is,  a  transaction 
in  a  court  of  record,  the  time  of  the  transaction  is  no  part  of  the  transac- 
tion itself;  and  the  allegation  of  the  time  is  like  that  in  an  action  of  tres- 
pass, of  which  the  court  will  take  no  notice,  or  will  regard  the  number  as 
merely  a  representative  of  whatever  number  may  be  proved.  Purcell  v. 
JM'Namara,  9  East,  157 ;  Stoddart  v.  Palmer,  3  B.  &  C.  2 ;  Brooks  v. 
Bemiss,  8  Johnson,  455. 

This  need  of  verbal  and  literal  accuracy  may  be  avoided,  by  declaring 
upoQ  the  instrument  or  record,  not  according  to  its  tenor,  or  in  his  verbis, 
but  according  to  its  legal  effect.  The  principle,  however,  is  the  same  : 
that  is  to  say ;  if  the  instrument  be  set  forth  according  to  its  legal  effect, 
there  is  a  variance  if  the  legal  effect  of  the  instrument  which  is  offered  in 
evidence   be  different;  Sheeliy  v.  Mandeville,  7  Cranch,  208;  Willoughby 


6-14  smith's   leading  cases. 

V.  Raymond,  4  Connecticut,  131 ;  Russell  v.  South-Britain  Society,  9  id. 
509  :  but  if  the  legal  efifect,  in  case  of  either  written  agreements  or  records, 
be  the  same,  there  is  no  variance ;  Ferguson  v.  Ilarwood,  7  Cranch,  408 ; 
Wilson  V.  Codman's  Executor,  3  id.  193,  208 ;  De  Forest  v.  Brainerd,  2 
Day,  528;  Andrews  v.  Williams,  11  Connecticut,  326;  Fay  v.  Goulding, 
Jr.  ctal.  10  Pickering,  122;  Wardcll  et  al.  v.  Pinney,  1  Wendell,  217; 
Rodman  and  others  v.  Forman,  8  Johnson,  26 ;  Bissell  v.  Kip,  5  Johnson, 
89 ;  Weed  v.  Marsh,  14  Vermont,  80. 

The  rule,  therefore,  is,  that  if  the  plaintiff  has  undertaken  to  set  forth 
the  instrument  or  record,  in  his  verbis,  a  verbal  difference  will  be  fatal;  but 
if  he  has  not  undertaken  to  do  that,  it  is  enough  if  the  legal  effect  be  the 
same :  but  it  is  sometimes  difficult  to  determine,  whether  the  plaintiff  has 
undertaken  to  set  forth  the  instrument  according  to  its  tenor  or  not ;  and 
even  where  he  has,  and  the  difference  is  of  so  slight  a  kind,  being  merely 
in  part  of  a  word,  that  there  could  not  be  any  mistake  as  to  the  identity  of 
the  thing  in  question,  the  difference  has  sometimes  been  held  unimportant. 
Jones  V.  Mars,  2  Campbell,  305  ;  and  see  Whittier  v.  Grould,  8  Watts,  485; 
and  Ellis's  Adm'r  v.  Merriman,  5  B.  Monroe,  296 ;  sed  contra,  Craig  v.  Brown, 
1  Peters's  C.  C.  139  :  but  this  is  a  discretion  to  be  exercised  tenderly,  and 
probably  it  extends  only  to  clerical  errors;  the  amendment  of  which,  by  a 
single  judge  on  the  trial,  is,  to  some  extent,  allowable  at  common  law;  see 
Jackson  v.  Young,  1  Cowen,  131 ;  Jansen  v.  Ostrander,  id.  670 ;  Every 
V.  Merwin,  6  id.  360.  In  Dunbar  v.  Jumper,  assignee,  2  Yeates,  74,  it 
was  said  that  the  rule  requiring  literal  accuracy,  was  to  be  confined  to 
those  cases  where  the  plaintiff  has  the  original  in  his  possession,  or  can  by 
due  exertion  obtain  it;  but  probably  the  decision  in  that  case  is  to  be  sus- 
tained on  the  ground  that  the  record-copy  was,  by  statute,  as  good  evidence 
as  the  original,  and  there  was  fraud  in  the  defendant. 

In  respect  to  'parol  contracts ;  it  has  sometimes  been  supposed,  that  C. 
J.  M.4jasHALL,  in  Wilson  v.  Codman's  Executors,  3  Cranch,  193,  had  said, 
that  a  variance  in  an  immaterial  allegation,  never  could  be  fatal,  except  in 
written  instruments  and  records ;  but  that  is  a  misapprehension  of  his  lan- 
guage and  of  the  point  decided ;  which  are  in  accordance  with  the  distinc- 
tion above  stated;  that  where  a  written  instrument  is  the  cause  of  action, 
an  immaterial  variance  in  a  matter  dehors  the  cause  of  action,  and  not 
affecting  its  identity,  will  do  no  harm ;  and  in  Sheehy  v.  Mandeville,  7  id. 
208,  to  which  the  reader  is  referred,  as  containing  an  extremely  clear  expo- 
sition of  this  subject,  the  same  judge  states  it  as  a  fixed  rule  of  law,  '<  that 
in  all  actions  on  special  agreements  or  written  contracts,  the  contract  given 
in  evidence  must  correspond  ■with  that  stated  in  the  declaration." 

The  cases  show  that  there  is  an  identity  in  parol  contracts,  in  conse- 
quence of  which,  a  variance  in  some  particular,  not  of  the  merits  of  the 
case,  nor  affecting  the  right  of  recovery,  but  characteristic  of  the  contract, 
shall  cause  the  contract  in  evidence  to  be  a  different  contract  from  that 
which  is  declared  upon ;  for  contracts,  says  Buller,  are  in  their  nature 
entire.  The  case  of  Bristow  v.  Wright,  was  of  a  parol  contract;  and  in 
Alexander  v.  Harris,  4  Cranch,  299,  a  case  very  like  Bristow  v.  Wright, 
it  was-  held  by  Chief  Justice  Marshall,  that  where  the  avowry  alleged  a 
demise  for  three  years,  and  the  demise  proved  was  for  one  year  certain,  and 


BRISTOW    V.     WRIGHT.  645 

there  were  two  years'  possession  with  consent  of  the  landlord,  there  was  a 
variance,  though  the  lease  was  not  by  a  written  instrument. 

This  identity  consists  in  tlie  terms  of  the  contract,  that  is  to  say,  in  the 
consideration  and  the  promise;  not,  of  course,  in  the  time  or  place  when 
or  where  the  contract  was  made,  for  these  are  no  part  of  the  contract.  The 
rule  may  be  stated  as  follows;  if  a  parol  contract  be  set  forth  as  that  from 
which  the  cause  of  action  arises ;  see  Repsher  v.  Shane,  3  Yeates,  575  ; 
Cunningham  v.  Timball,  7  Massachusetts,  65 ;  and  the  terms  of  the  con. 
tract  be  stated  with  needless  particularity ;  yet  if  the  contract  proved  differ 
in  any  of  those  particulars,  the  two  contracts  are  not  the  same :  there  is  a 
varianee.  See  Curley  v.  Dean,  4  Connecticut,  259.  Thus,  as  to  conside- 
ration :  the  rule  of  law  is,  that  the  entire  identical  consideration  laid  must 
be  proved,  neither  more,  less,  nor  other;  see  Lansing  v.  M'Killip,  3  Caines, 
286  ;  Brooks  v.  Lawrie,  1  Nott  &  M'Cord,  342;  and  Cunningham  v.  Shaw, 
7  Barr,  401,  409 ;  Russell  v.  South-Britain  Company,  9  Connecticut,  508 : 
thus,  part  of  the  consideration  alleged,  was,  the  plaintiff's  engagement  to 
give  employment  to  the  defendant's  son,  at  a  price  per  month,  as  long  as  the 
plaintiff  should  wish  to  employ  him,  and  the  engagement  proved  was,  to 
employ  him  at  that  rate  during  the  season,  the  variance  was  held  material 
and  fatal,  for  the  things  were  in  law  essentially  different ;  Curley  v.  Dean, 
4  Connecticut,  259  :  and,  where  the  declaration  was  for  pine  timber  sold  and 
delivered,  and  the  only  evidence  was  of  spruce  timber,  the  variance  was  held 
fotal,  because  the  two  things  are  specifically  different ;  Robins  v.  Otis,  1 
Pickering,  368  :  and  where  a  past  consideration  is  alleged,  and  an  executory 
one  proved ;  Robertson  v.  Lynch,  18  Johnson,  451 ;  and  see  Bulkley  and 
others  v.  Landon  and  others,  2  Connecticut,  404  :  and  where  the  alleged 
consideration  was  a  promise  to  pay  thirty-five  dollars,  three  dollars  a  ton, 
and  the  tolls,  and  the  consideration  proved  was  a  promise  to  pay  three  dol- 
lars a  ton,  and  the  tolls,  and  thirty-five  dollars  at  once,  on  account  of  the 
tolls ;  Stone  v.  Knowlton,  3  Wendell,  374  ;  and  where  the  consideration  of 
a  warranty  was  alleged  to  be  the  purchase  of  an  article  for  a  certain  price, 
and  the  proof  was  of  one  entire  contract  of  purchase  of  several  articles, 
among  which  was  the  article  alleged,  which  was  rated  at  the  price  averred, 
but  which  thus  appeared  to  be  but  part  of  the  consideration ;  Kellogg  v. 
Denslow,  14  Connecticut,  412  :  and  again,  where  the  consideration  of  a 
warranty  was  averred  to  be  the  sale  of  a  horse  for  sixty-six  dollars,  and  the 
proof  was  of  fifty  dollars  paid,  and  a  note  given  for  sixteen  dollars,  payable 
on  a  contingency,  the  price  averred  being  certain  and  unconditional,  and  that 
proved  being  in  part  dependent  on  a  contigency;  Howard  v.  Chiles,  8  B. 
Monroe,  377 ;  and  where  the  consideration  alleged  is  a  lease  for  one  year 
from  April  1,  and  so  on  from  year  to  year,  and  the  proof  is  of  a  lease 
dated  February  1,  for  one  year,  and  so  on  from  year  to  year,  which  was 
decided  to  be  from  the  date;  Keyes  v.  Dearborn,  12  New  Hampshire,  52; 
it  has  been  held  a  variance.  And  as  to  the  promise,  or  matter  to  be  per- 
formed, the  principle  is  the  same;  the  entire  identical  promise  alleged,  must 
be  proved,  and  neither  a  greater,  less,  nor  other  promise ;  but  this  distinc- 
tion is  to  be  noted  between  the  consideration  and  promise  : — the  considera- 
tion of  every  contract  is  one  and  entire,  as  being,  the  whole  of  it,  the  mate- 
rial cause  of  action,  and,  therefore,  no  part  can  be  omitted  in  the  declaration; 
but  there  may  be  several  and  separate  promises,  made  on  one  consideration, 


6iG  smith's   leading    cases. 

being  so  many  differcut  formal  causes  of  action  :  therefore,  the  plaintiff  need 
not  set  out  all  the  distinct  and  several  promises  which  defendant  has  made, 
since  some  may  have  been  performed  or  remitted,  and,  at  all  events,  the 
breach  of  them  may  be  no  part  of  the  present  cause  of  action ;  Curley  v. 
Dean;  Alvord  v.  Smith  et  al.,  5  Pickering,  232  j  and  see  Henry  v.  Cleland, 
14  Johnson,  400;  and  Howard  v.  Chiles,  8  B.  Monroe,  377;  yet  that  iden- 
tical and  entire  promise  set  forth,  must  precisely  be  proved.  Thus,  where, 
in  assumpsit,  the  declaration  alleged  a  warranty  that  machine  cards  were 
good  and  mcrchantallc,  and  the  evidence  proved  the  warranty  to  be  that  the 
cards  were  equal  to  any  in  America,  this  was  held  to  be  a  variance;  Gould- 
ing  et  al.  v.  Skinner  et  al.,  1  Pickering,  162  :  and  where  the  promise 
alleged  was,  to  pay  116?.  5s.  at  the  plaintiff's  house,  and  the  promise 
proved  was  to  pay  113/.  13s.  Ad.,  at  the  defendant's  house,  it  was  held  that 
the  two  contracts  were  dissimilar,  and  that  there  was  a  variance ;  Unibc- 
hockcrv.  Ilassel,  2  Yeates,  339;  and  see  Robertson  v.  Lynch,  18  Johnson, 
451  :  and,  if  the  promise  alleged,  be,  that  the  defendant  is  to  pay  for  one- 
half  of  the  lands  included  in  a  certain  road,  and  the  evidence  show  a  pro- 
mise to  pay  for  all  the  lands  included  in  that  road,  and  further  show  it 
to  be  a  part  of  the  same  single  and  entire  agreement,  that  defendant  was 
also  to  pay  for  other  lands  at  the  same  rate,  in  both  these  respects,  the  vari- 
ance is  fatal;  Crawford  v.  Morrcll,  8  Johnson,  253  ;  and  where  the  decla- 
ration avers  a  promise  to  pay  and  supply  to  the  plaintiff  such  sum  or  sums  of 
money  as  would  be  sufficient  for  the  procurement  of  reasonable  food, 
raiment,  &c.,  and  the  proof  was  of  a  promise  to  support  the  plaintiff,  there 
is  a  fatal  variance;  Bull  v.  McCrea,  8  B.  Monroe,  422,  424  :  and  if  the 
promise  alleged  be  ahsolutc,  and  that  proved  be  conditional  or  in  the  alter- 
native;  Trask  et  al.  v.  Duval,  4  AYashington,  C.  C.  97;  Lower  v.  Winters, 
7  Cowcn,  263  ;  Stone  v.  Knowlton,  3  Wendell,  374 ;  Stump  v.  Hutchin- 
son, 1  Jones,  533 ;  Starnes  v.  Erwiu,  10  Iredell,  226  :  and  if  the  declara- 
tion allege  that  the  contract  was  to  terminate  ''at  the  expiration  of  the  season 
for  dressing  cloth,  to  wit,  on  the  1st  day  of  May,  1819,"  and  the  proof  be 
a  contract  to  end  with  ''the  season  for  dressing  cloth,"  the  variance  is  fatal, 
for  the  time  at  which  the  contract  is  to  end  is  characteristic  and  descriptive, 
and  fi.Kes  its  identity;  Curley  v.  Dean  :  and  for  other  examples,  see  Harris 
V.  Plainer,  8  Pickering,  541;  Baylies  and  another  v.  Fettyplace  and  another, 
7  Massachusetts,  325;  Colt  v.  Hoot,  17  id.  229;  Kellogg  v.  Denslow,  14 
Connecticut,  412  ;  Bannister  v.  Weatherford,  7  B.  Monroe,  271. 

But  in  parol  contracts,  it  is  always  enough  if  the  legal  effect  is  the  same. 
Coonley  v.  Anderson,  1  Hill's  N.  Y.  520. 

Upon  the  whole,  the  principle  seems  to  be,  that  the  matter  given  in  evi- 
dence must  agree  with  that  set  forth  as  the  cause  of  action,  in  all  those 
minute  allegations  which  are  an  inseparable  and  characteristic  part  of  it, 
and  determine  its  identity.  If  there  be  any  allegation  which  may  be  stricken 
out  without  impairing  the  legal  cause  of  action,  and  which  is  therefore  no 
legal  part  of  it,  such  need  not  be  proved,  being  surplusage.  See  Gibbs  v. 
Cannon,  9  Sergeant  &  Rawle,  198;  per  Spencer,  J.,  in  Lansing  v.  M'Killip, 
3  Caines,  286 ;  Livingston  et  al.  v.  Swanwick,  2  Dallas,  300,  but  quaere  ? 
Pautou  V.  Holland,  17  Johnson,  92  ;  Twiss  and  another  v.  Baldwin  and 
another,  9  Connecticut,  291. 

Variance  iu  an  instrument  or  contract  can  be  taken  advantage  of,  only 


BRISTOW     V.     AV  RIGHT.  647 

under  a  plea  wliicL  puts  the  instrument  or  contract  in  issue.  Alexander  v. 
Harris,  4  Crancli,  299 ;  Douglas  v.  Beam,  2  Binncy,  70 ;  Wliitloek  v. 
Karascy's  Adm'x,  2  Munford,  510;  Abbott  v.  Lyon,  4  Watts  &  Sergeant, 
38.  The  proper  mode,  however,  of  taking  advantage  of  a  variance  in  the 
condition  of  a  bond,  as  recited  in  the  declaration,  is  to  crave  oyer,  and  set  it 
out  at  full,  and  then  demur;  Douglass  v.  llathbonc,  5  Ilill,  143. 

No  part  of  the  law  is  more  strongly  founded  in  good  sense  and  reason, 
than  this  relating  to  variance.  '<Tiiese  rules  of  law,"  says  Mr.  Washing- 
ton, in  arguendo,  Wroe  v.  Washington  and  others,  1  Washington,  358, 
"  are  in  strict  conformity  with  the  real  and  substantial  purposes  of  a  decla- 
ration ;  which  are,  1st,  To  apprize  the  defendant  of  the  nature  of  the  charge ; 
and,  2ndly,  To  enable  him,  by  reference  io  the  record  itself,  to  plead  the 
judgment  in  bar  to  a  second  action,  for  the  same  cause." 

It  must  be  observed  that  in  New  York,  the  rule  respecting  immaterial 
variances  has  given  way  ;  it  being  now  held,  that  no  variance  is  fatal,  but 
such  as  in  the  opinion  of  the  judge  would  mislead  or  surprise  the  opposite 
side ;  and  in  such  cases,-  it  is  usual  to  amend  after  verdict.  In  The  East 
Boston  Timber  Co.  v.  Persons  and  another,  2  Hill's  N.  Y.  126,  a  case  pre- 
cisely like  Bristow  v.  Wright,  an  avowry  in  replevin  set  out  a  parol  lease, 
reserving  rent  yearly,  and  the  proof  was  of  a  reservation  half-yearly,  but  the 
judge  admitted  the  evidence;  the  court  in  banc  said,  that  under  the  rule 
formerly  prevailing,  the  variance  would  certainly  have  been  fatal,  but  that 
a  more  liberal  rule  now  prevailed,  and  as  the  judge  was  satisfied  that  the 
variance  was  not  calculated  to  mislead  or  surprise,  it  was  properly  disre- 
garded ;  they  directed  an  amendment,  though  they  doubted  if  it  was  neces- 
sary. 

The  ground  on  which  a  variance  in  an  immaierlal  particular  is  fatal  in 
an  indictment,  is  the  same  as  in  a  declaration :  that  is  to  say,  any  variance 
which  destroys  the  legal  identity  of  the  thing  charged  with  the  thing  proved, 
is  fatal ;  but  if  that  specific  thing  which  is  proved,  be  found  charged  in  the 
indictment,  it  is  good.  Thus  in  setting  out  a  libel  in  an  indictment,  if  any 
word  be  written  in  a  different  manner  from  that  in  the  original  libel,  the 
question  will  be,  whether  the  variance  has  made  it  a  different  word,  or 
whether  it  still  stands  for  the  same  word :  if  it  be  a  different  word,  the 
variance  is  fatal ;  but  if  it  be  the  same  word  in  an  abbreviated  or  erroneous 
form,  if  it  be  the  representation  of  the  same  thing,  the  sign  of  the  same 
idea,  it  is  not  a  variance.  See  Lewis  v.  Few,  5  Johnson,  1 ;  where  the  sub- 
ject is  ably  considered;  United  States  v.  Hinman,  1  Baldwin,  292  ;  and  if 
the  question  of  identity  is  doubtful,  the  court  will  refer  it  to  the  jury.  In 
United  States  v.  John  M'Neal,  1  Gallison,  387,  it  was  held  that  charging  a 
perjury  at  a  trial  of  the  United  States  Court,  holdcu  19th  May,  when  the 
record  in  evidence  showed  that  the  court  was  first  holdeu  in  that  year  on 
20th  May,  19th  May  being  Sunday,  was  a  fatal  variance;  but  the  coirect- 
ness  of  that  decision  seems  to  be  very  doubtful.  Where  an  indictment  set 
out  a  note,  according  to  the  purport  and  effect  following,  "  Ijyromue,"  &c. 
and  the  proof  was  of  a  note,  "  I  promued,"  &c  ,  it  was  held  no  variance, 
for  legally  the  purport  and  effect  arc  the  same.  Commonwealth  v.  Parraen- 
ter,  5  Pickering,  279.  See  The  People  v.  White,  22  Wendell,  1G7,  175, 
where  the  subject  of  variance  in  indictments,  is  extensively  examined,  and 
the  above-mentioned  principle  established;     confirmed  in   The  People   v. 


648  smith's    leading   cases. 

Jackson,  3  Hill's  N.  Y.  92.  The  People  v.  White  was  reversed  by  the 
Court  of  Errors,  24  Wendell,  520,  uot  because  the  general  principle  of 
variance  laid  down  was  wrong,  but  because  the  application  of  it  in  that  case 
was  mistaken. 

Amendment  at  Nisi  Prius  is,  in  some  states,  allowed  by  statute. 

In  Pennsylvania,  by  act  of  21  March,  1800,  sec.  6,  amendments  affecting 
the  merits  are  to  be  granted  on  or  before  trial ;  and,  if  thereby  the  other 
party  be  surprised,  a  continuance  shall  be  granted.  The  effect  of  this  act  is 
to  allow  at  trial,  and  after  the  jury  are  sworn,  those  amendments,  which,  at 
common  law,  could  only  be  had  previously  or  in  banc ;  F.  &  M.  Bank  v. 
Israel,  6  Sergeant  &  Rawle,  293  ;  under  this  act,  any  amendment  which 
does  not  change  the  cause  of  action,  is  to  be  granted ;  and  as  to  the  applica- 
tion of  this  principle,  the  following  rule  is  established  by  Sergeant,  J., 
upon  a  review  of  the  cases,  in  Coxe  and  others  v.  Tilghman,  1  Wharton, 
282  :  "  In  actions  ex  contractu,  so  long  as  the  plaintiff  adheres  to  the  ori- 
ginal instrument  or  contract  on  which  the  declaration  is  founded,  an  altera- 
tion of  the  grounds  of  recovery  on  that  instrument  or  contract,  or  of  the 
modes  in  which  the  defendant  has  violated  it,  is  not  an  alteration  of  the 
cause  of  action,  [confirmed  in  Caldwell  v.  Remington,  2  id.  137]  ;  *  *  * 
on  the  other  hand,  when  a  new  instrument  or  contract  is  introduced  as  a 
ground  of  action,  the  amendment  is  not  permitted.  *  *  *  In  actions  ex 
delicto,  the  rule  is  the  same  :  the  foundation  of  the  complaint  laid  in  the 
declaration  must  be  adhered  to,  although  the  modes  of  stating  that  complaint 
may  be  varied  by  an  amendment."  As  amendment  by  this  act  is  mandatory, 
the  decision  of  the  judge  is  the  subject  of  error;  Sandback  v.  Qaigley,  8 
Watts,  460 ;  Proper  v.  Luce,  3  Penrose  &  Watts,  65  :  whereas  amendment 
at  common  law  is  discretionary,  and  error  does  not  lie.  Burke  v.  Huber,  2 
Watts,  306  :  yet  if  the  court  in  granting  amendments  at  common  law, 
exceed  the  limits  of  their  discretion,  and  transcend  \.\ie\x  power  of  action,  no 
doubt  error  lies;  see  Catlin  v.  Robinson,  2  id.  273  ;  Carpenter  v.  Gookin,  2 
Vermont,  495 ;  Probate  Court  v.  Hall  &  Wentworth,  .14  id.  159.  The 
ground  on  which  a  superior  court  may  interfere  in  a  case  of  discretion,  is 
very  clearly  stated  by  Lord  Cottenham,  in  a  late  case  :  "  The  rule  of  the 
Court  of  Chancery  throughout,  is,  that  in  matters  of  pure  discretion  the 
Court  of  Appeal  is  very  unwilling  to  interfere ;  for  instance,  in  the  appoint- 
ment of  guardians  or  trustees,  because  it  is  merely  the  conjecture  of  one 
mind  as  opposed  to  the  conjecture  of  another;  but  if  the  master  has  acted 
on  a  wrong  principle  in  his  appointment,  then  the  court  is  bound  to  inter- 
fere to  establish  a  right  principle ;"  Ironmongers  Co.  v.  Atty-Geu.  10  CI. 
&  Fin.  Appeal  Cases,  926.  And  in  Virginia,  it  seems  to  be  held,  that  the 
discretion  of  courts  always  is  a  legal  discretion,  and  the  subject  of  revision; 
Cooke  V.  Beale's  Executors,  1  Washington,  313. 

Ii»  Massachusetts,  Maine,  New  Hampshire,  Vermont  and  Connecticut, 
by  statutes  and  rules  of  court,  amendments  in  form  or  substance  may  be 
granted  at  any  time  before  judgment,  on  proper  and  reasonable  terms  :  but 
the  rule  is,  that  this  cannot  extend  to  change  the  forvi  of  action,  nor  the 
cause  of  action  :  that  is  to  say,  the  new  count  must  be  such  as  has  the  same 
plea,  and  might  originally  have  been  joined,  and  therefore  debt  cannot  be 
changed  to  case  or  trespass,  nor  assumpsit  to  trover;  and  <' the  subject- 
matter  of  the  new  count,  must  be  the  same  as  of  the  old  ;   it  must  not  be  for 


RUSHTON     V.     ASPINALL.  •  649 

an  additional  claim  or  demand,  but  only  a  variation  of  the  form  of  demand- 
ing the  same  thing ;"  Ball  v.  Claflin  ;  and,  therefore,  in  an  action  for  the 
price  of  goods,  a  count  on  a  promissory  note  given  in  full  payment,  cannot 
be  joined  ;  nor  can  a  contract  to  carry  with  due  care,  be  changed  to  a  con- 
tract of  insurance  ;  nor  case  for  malicious  prosecution,  be  changed  to  case 
for  conspiracy.  Hayues  and  wife  v.  Morgan,  3  Massachusetts,  208  j  9th 
rule  of  court  in  16  id.  373;  Willis  v.  Crooker,  1  Pickering,  204;  Van- 
cleef  V.  Therasson  et  al.  3  id.  12 ;  Ball  v.  Claflin,  5  id.  303 ;  Slater  et  al. 
V.  Nason,  15  id.  345;  Eaton  v.  Ogier,  3  Greenleaf,  40;  Butterneldv.  Har- 
vell,  3  New  Hampshire,  201 ;  Lawrence  v.  Langley,  14  id.  70,  72 ;  and 
see  Edgerley  v.  Emerson,  4  id.  147 ;  Carpenter  v.  Gookin,  2  Vermont, 
495;  Boss  v.  Bates,  2  Boot,  188;  Smith  v.  Barker,  3  Day,  312,  315.  In 
Boston  India  Bubber  Factory  v.  Hoit,  14  Vermont,  92,  the  court  was 
divided  equally  upon  the  question  whether  the  form  of  action  might  not  be 
changed  by  amendment,  upon  terms  of  discharging  the  bail,  which  it  seems 
may  now  be  done  in  England. 

As  to  the  practice  in  case  of  a  variance  on  account  of  formal  errors,  in 
those  states  where  there  is  no  statutory  power  of  amendment  at  the  trial, 
see  Lyon  v.  Burtisand  The  Bank  of  New  York,  19  Johnson,  510  ;  1  Cowen, 
131,  670;  Craig  v.  Elisha  Brown,  1  Peters,  C.  C.  139  ;  Girard  v.  Stiles,  4 
Yeates,  1,  3  ;  Every  v.  Merviu,  6  Cowen,  350;  Cole  v.  Goodwin,  19  Wen- 
dell, 252,  254;  Clark  v.  Faxton  and  others,  21  id.  153. 

H.  B.  W. 


*RUSHTON    V.   ASPINALL.  [-334] 

TRINITY— 21  GEO.  3. 

[reported  dougl.  679.] 

In  an  action  against  the  indorser  of  a  bill  of  exchange,  if  the  plaintiff  do  not  allege 
a  demand  and  refusal  by  the  acceptor  on  the  day  when  the  note  was  payable  it 
is  error,  and  not  cured  by  verdict. — In  like  manner,  it  is  error,  and  not  cured 
by  verdict,  if  he  do  not  allege  notice  to  the  defendant  of  the  refusal  by  the 
acceptor. 

A  verdict  cures  the  statement  of  a  title  defectively  set  out,  but  not  of  a  defective 
title. 

This  case  came  on  upon  a  writ  of  error,  from  the  court  of  the  county 
palatine  of  Lancaster.  It  was  an  action  of  assumjjsit.  The  first  count  in 
the  declaration,  after  stating  a  bill  of  exchange  drawn  by  one  Billinge  on 
one  Meyer,  dated  the  27th  of  November  1778,  and  payable  to  one  Jones,  or 
order,    three  months  after  date;  that  Jones   had  endorsed   it    to  Rush- 


650  ,  smith's    leading   cases. 

ton;  and  Eushton  to  Aspinall;  proceeded  as  follows:  '•'which  said 
bill  of  exchange,  so  made,  subscribed,  and  indorsed  as  aforesaid,  after- 
wards, to  wit,  on  the  same  day  and  year  aforesaid,  (viz.  the  day  of 
the  date  of  the  bill,)  at  Manchester  aforesaid,  was  shewn  and  presented 
to  the  said  Peter  Meyer,  for  his  acceptance  thereof,  and  the  said  Peter 
Meyer,  according  to  the  usage  and  custom  of  merchants  aforesaid, 
did,  then  and  there,  accept  the  same,  and  promise  to  pay  the  said  sum  of 
2'2l.  10s.  therein  mentioned,  according  to  the  tenor  and  effect  of  the  said 
bill  of  exchange,  and  the  indorsements  thereupon  so  made  as  aforesaid ; 
yet  the  said  Peter  Meyer,  although  afterwards,  to  wit,  the  same  day  and 
year  aforesaid,  at  Manchester  aforesaid,  requested  to  pay  the  said  sum  of 
p;^qqr-|  money  in  the  *said  bill  specified,  according  to  the  tenor  and  effect 
L  -'  thereof,  and  of  his  acceptance  thereof,  so  made  as  aforesaid,  alto- 
gether neglected  and  refused,  and  still  doth  neglect  and  refuse  to  pay  the 
same,  of  all  which  premises  the  said  John  Jones,  George  Billinge  and  Peter 
Meyer,  respectively,  the  same  day  and  year  aforesaid,  at  Manchester  afore- 
said, in  the  county  aforesaid,  had  notice,  and  l>y  reason  tlicreof,  and  accord- 
ing to  the  said  usage  and  custom  of  merchants,  the  said  Tliomas  Rushton 
became  liahle  to  pat/  the  said  Joseph  Asjjinall  the  said  sum  of  money  in  the 
said  hill  of  exchange  contained,  according  to  the  tenor  and  effect  thereof, 
and  of  the  several  indorsements  so  made  thereon  as  aforesaid,  and,  being 
so  liable,  the  said  Thomas,  afterwards,  to  wit,  the  same  day  and  year  last- 
mentioned,  at  Manchester  aforesaid,  in  the  county  aforesaid,  in  considera- 
tion thereof,  undertook,  and  to  the  said  Joseph  then  and  there  faithfully 
promised,  to  pay  to  him  the  said  sura  of  money,  in  the  said  bill  of  exchange 
contained,  according  to  the  tenor  and  eftect  thereof,  and  according  to  the 
several  indorsements  made  thereon,  as  aforesaid." 

The  second  count  was  for  another  bill  for  QOl.,  drawn,  indorsed,  and 
accepted  by  the  same  parties  j  and  was  framed  in  the  same  manner  as  the 
first. 

The  last  count  which  was  upon  an  insimul  computasset,  concluded  that 
the  said  Thomas  was  found  in  arrear,  and  indebted  to  the  said  Joseph  in  the 
further  sum  of,  &c.,  "and  thereupon,  being  so  found  in  arrear  and  indebted 
as  aforesaid,  the  said  Thomas,  in  consideration  thereof,  afterwards,  to  wit, 
&c.,  undertook,  and  to  the  said  Thomas  then  and  there  faithfully  promised, 
to  pay  to  him  the  said  last  sum,  when  he  should  be  afterwards  thereto  re- 
Cjuested." 

There  was  a  general  verdict  for  the  plaintiff,  and  judgment  being  entered, 
the  record  was  removed  into  this  court,  and  the  plaintiff  in  error  assigned 
several  errors  on  the  different  counts,  but  which  contained  only  three  objec- 
tions ;  two  to  the  two  first  counts,  and  one  to  the  third  :  viz.,  1.  That  it 
appeared  by  the  record  that  the  bill  was  made  on  the  27th  of  November, 
177<S,  payable  three  months  after  date,  and  that  the  payment  was  demanded 
of  Meyer  on  the  very  same  27th  of  November ;  whereas,  according  to  the 
tenor  of  the  bill,  and  the  custom  of  merchants,  it  was  not  payable,  nor  the 
r*SSn  P^y™^'^*  demandable  of  Meyer,  until  *the  expiration  of  three 
L  -■  months  after  the  date  thereof.  2.  That  it  did  not  appear  that 
Kushton,  to  whom  the  bill  was  indorsed,  and  who  endorsed  it  to  Aspinall, 
had  any  notice  of  the  refusal  of  Meyer  to  pay  the  money  in  the  bill  men- 
tioned, when  the  same  was  and  became  due,  and  had  been  demanded  of  him, 


RUSHTON     V.    ASPINALL.  651 

•without  'whicli  notice  tbc  said  Tlioiuas  RuBliton,  as  an  indorscr  of  the  said 
bill  of  exchano-e,  was  not  liable  bv  llie  law  of  this  kiiifrdom,  and  accordino; 
to  the  usage  and  custom  of  merchants  aforesaid,  to  the  payment  of  the 
money  thcrciu  mentioned,  as  such  indoi'ser  of  the  same  bill.  3.  That  by 
the  record,  it  appeared  that  the  promise  of  the  said  Thomas  Rushton,  men- 
tioned in  the  last  count  was  made  to  himself  the  said  Thomas  Rushton, 
and  not  to  the  said  Joseph  Aspinall :  wherefore  the  said  Joseph  Aspinall 
could  not  have  or  maintain  any  action  thereof  against  the  said  Thomas 
Rushton. 

In  the  last  term,  on  Friday,  the  25th  of  May,  the  case  was  argued,  by 
Chamhre  for  the  plaintiff  in  error,  and  }yood  for  the  defendant. 

Chamhre  abandoned  the  objection  to  the  last  count,  but  contended  that 
the  other  two  w^ere  fatal.  1.  The  contract  by  the  indorser  to  pay  the  bill 
was  not  absolute,  he  said,  but  conditional,  i.  e.  in  the  event  of  a  demand 
being  made  on  the  acceptor  at  the  time  of  payment,  and  his  refusal.  Such 
demand,  therefore,  must  be  made,  in  order  to  render  the  indorscr  liable.  It 
was  a  necessary  circumstance  to  entitle  the  drawer  to  an  action  against  him, 
and  a  plaintiff  must  in  all  cases  state  a  sufficient  cause  of  action  in  his 
declaration.  2.  In  like  manner  the  indorser  is  not  liable  till  after  he  has 
had  notice  of  a  demand  having  been  made  upon  the  drawer,  and  of  his 
refusal.  How  soon  such  notice  shall  be  given,  what  shall  or  shall  not  be 
reasonable  time  for  notice,  is  a  matter  for  the  consideration  of  the  jury; 
but  some  notice  must  be  given,  and  therefore  ought  to  be  alleged. 

Wood  argued,  in  answer  to  both  objections,  that  the  facts  of  the  demand 
and  notice  being  circumstances  without  which  the  jury  could  not  have  found 
for  the  plaintiff,  they  must  now  be  presumed  to  have  been  proved,  and  that 
the  omission  to  allege  them  in  the  declaration  could  not  be  taken  advantage 
of  after  verdict.  For  this  he  cited  the  case  of  Hitchin  v.  Stevens  in 
Shower,(of)  where  in  an  action  of  debt  for  rent  by  the  bargainee  of  a  rever- 
sion, after  a  *verdict  for  the  plaintiff,  it  was  objected,  in  arrest  of  f^j-ooyt 
judgment,  that  the  plaintiff  had  not  alleged  attornment,  without  L  J 
which,  (as  the  law  then  stood)  he  could  have  no  title;  "but  a  rule  was 
taken  and  agreed  by  all  the  court,  that,  in  any  case  where  anything  is 
omitted  in  the  declaration,  though  it  be  matter  of  substance,  if  it  be 
such  as  without  proving  it  at  the  trial,  the  plaintiff  could  not  have  had  a 
verdict,  and  there  be  a  verdict  for  the  plaintiff,  such  omission  shall  not 
arrest  the  judgment;"  and  thereupon,  after  solemn  debate,  judgment  was 
given  for  the  plaintiff.  With  regard  to  the  first  objection  in  particular,  he 
contended,  that  the  allegation,  under  a  videlicet,  that  the  demand  of  pay- 
ment was  made  on  the  27th  of  November,  might  be  rejected  as  surplusage. 
This  was  no  more  than  appeared  to  have  been  done  in  a  case  of  Sorrell  v. 
Lewin,  reported  by  Keble.('6)  There,  in  an  action  of  indebitatus  assump- 
sit, the  promise  was  laid  on  the  1st  of  January,  27  Car.  2,  which  was  a  day 
not  yet  come,  and,  after  verdict,  it  was  held  to  be  cured,  because  that  must 
have  been  found  on  evidence  of  a  promise  before  the  action  and  a  duty 
before  the  promise.  And,  as  to  the  second  objection  in  this  case,  although 
there  was  no  allegation  of  notice  to  the  indorser,  yet  it  was  stated,  that  he 
promised  to  pay,  after  the  acceptor  had  refused,  which  he  could  not  be  sup- 
posed to  have  done  without  a  knowledge  of  the  refusal  by  the  acceptor, 
(a)  B.  R.  M.    4  Cor.  2.    Show.  233.  (6)  B.  R.  M.  26  Car.  2.  3  Kcb.  354. 


652  smith's  leading  cases. 

Cliamhre,  in  reply  observed,  that  the  rule  mentioned  by  Wood  could  not 
extend  so  far  as  he  would  carry  it,  otherwise  a  writ  of  error  could  never  be 
supported,  in  any  case  after  verdict.  The  court  would  intend,  that  facts 
imperfectly  stated  had  been  completely  proved,  but  they  never  could  pre- 
sume, that  a  material  fact,  which  was  not  at  all  stated,  had  been  proved. 
The  first  objection  would  not  be  removed  by  rejecting  the  words  stating  the 
demand  to  have  been  on  the  day  when  the  bill  was  drawn,  for  still  the  de- 
claration would  remain  without  an  allegation  of  a  demand  at  the  time  when 
the  bill  became  due.  As  to  the  promise  by  Rushton,  that  is  only  considered 
as  inference  of  law,  and  no  such  inference  arises,  unless  it  appears  by  the 
preceding  part  of  the  declaration  that  he  was  liable ;  or,  if  it  is  taken  as 
an  actual  promise,  yet  it  might  have  been  made  without  notice  of  a  refusal 
P^qqo-i  by  the  acceptor)  and  if  it  was  *no  action  could  be  maintained 
L  ^  upon  it,  because  without  such  notice  there  could  be  no  consider- 
ation. 

The  court  were  prepared  to  have  given  judgment  the  last  day  of  Easter 
Term,  (Monday,  the  28th  of  May,)  but  neither  of  the  counsel  in  the  cause 
being  present  when  Lord  Mansfield  was  obliged  to  go  to  the  House  of  Lords, 
the  cause  stood  over  till  this  day. 

Lord  Mansfield. — The  two  objections  insisted  upon  are,  1.  That  the  de- 
claration does  not  allege  a  demand  on  the  acceptor.  2.  That  it  does  not 
state  notice  to  the  defendant,  of  the  acceptor's  refusal  to  pay.  The  answer 
was,  that  after  verdict,  it  must  be  presumed,  that  those  facts  were  proved  at 
the  trial :  and  our  wishes  strongly  inclined  us  to  support  the  judgment  if 
we  could.  But,  on  looking  into  the  cases,  we  find  the  rule  to  be,  that, 
where  the  plaintiff  has  stated  his  title  or  ground  of  action  defectively  or 
inaccurately,  because,  to  entitle  him  to  recover,  all  circumstances  necessary, 
in  form  or  substance,  to  complete  the  title  so  imperfectly  stated,  must  be 
proved  at  the  trial,  it  is  a  fair  presumption,  after  a  verdict,  that  they  were 
proved ;  but,  where  the  plaintiff  totally  omits  to  state  his  title  or  cause  of 
action,  it  need  not  be  proved  at  the  trial,  and,  therefore,  there  is  no  room 
for  presumption.  The  case  cited  from  Shower  comes  within  this  distinction ; 
for  the  grant  of  the  reversion  was  stated,  which  could  not  have  taken  effect 
without  attornment,  and  therefore,  that  being  a  necessary  ceremony,  it  was 
presumed  to  have  been  proved.  But,  in  the  present  case,  it  was  not  requisite 
for  the  plaintiff  to  prove  either  the  demand  on  the  acceptor,  or  the  notice 
to  the  defendant,  because  they  are  neither  laid  in  the  declaration,  nor  are 
they  circumstances  necessary  to  any  of  the  facts  charged.  If  they  were 
presumed  to  have  been  proved,  no  proof  at  the  trial  can  make  good  a  de- 
claration, which  contains  no  ground  of  action  on  the  face  of  it.  The  pro- 
mise alleged  to  have  been  made  by  the  defendant  is  an  inference  of  law, 
and  the  declaration  does  not  contain  premises  from  which  such  an  inference 
can  be  drawn. 

I  see,  in  a  note  of  a  case(o)  in  this  court,  in  Easter  Term,  18  Geo.  3,  I 

(a)  Cowp,  825,  Avery  v.  Hoole.  It  was  an  action  against  an  unqualified  per.son  for 
using-  a  gun.  The  declaration  stated,  that  the  defendant  used  a  gun,  being  an  engine  for 
the  destruction  of  game.  In  arrest  of  judgment,  it  was  objected,  that  it  was  not  averred 
that  the  defendant  used  the  gun  for  the  destruction  of  game,  but  the  court  overruled  the 
objection.  Lord  Mansfield  observed,  that,  according  to  one  way  of  pointing,  tlie  offence 
was  sufficiently  charged,  and  that  such  an  ambiguity,  though  it  might  be  a  good  cause  of 


RUSH  TON    V.    ASPINALL. 


653 


am  stated  to  have  said,  "  A  verdict  will  not  mend  the  matter  where  the  gist 
of  the  case  is  not  laid  in  the  declaration,  but  it  will  cure  ambiguity ;"  and 
there  is  a  strong  case  in  print  of  an  action  for  keeping  a  malicious  bull,(i) 
where  the  scienter  having  been  omitted  in  *the  declaration,  it  was  p^qqoT 
held  bad  after  verdict.  Therefore  we  are  all  of  opinion,  that  there  L  J 
should  be  judgment  for  the  plaintiff  in  error. 

The  judgment  reversed. 


The  principle  on  which  this  case  was 
decided,  and  which  it  is  commonly  cited 
to  establish,  viz.,  that  a  verdict  cures 
the  statement  of  a  title  defectively  set 
out,  (see  Tibbitts  v.  Yorke,  4  A.  &  E. 
187,)  but  not  of  a  defective  title,  is 
learnedly  discussed  in  the  notes  to  Sten- 
nell  V.  Hoa-g-,  1  Wms.  Saund.  227;  see 
Hayter  v.  Moat,  5  Dowl.  298,  2  M.  & 
W.  56,  S.  C.  [Galloway  v.  Jackson,  3 
M.  &  Gr.  960;  3  Sc.  N.  R.  753,  S.  C. ; 
Harris  v.  Goodwyn,  2  M.  &  Gr.  405;  2 
Sc.  N.  R.  450,  S.  C. ;  Davis  v.  Black,  1 
Q.  B.  900;  Taylor  V.  Dennie,  7  A.  Si, 
E.  409;  France  v.  White,  1  M.  &.  Gr. 
731;  {Smith  v.  Keating,  6  C.  B.  136, 
159;}  Sheen  v.  Rickie,  5  M.  &  VV. 
175].  In  Henry  v.  Burbidge,  3  Bing. 
N.  C.  501,  a  count  against  the  drawer 
of  a  bill  not  alleging  a  promise  to  pay 
was  held  bad  on  special  demurrer. 
[Ace.  Smith  V.  Cox,  11  M.  &  W.  475, 
and  see  Lee  v.  Welch,  2  Lord  Raym. 
1516;  2  Str.  793,  S.  C;  Head  v.  Bald- 
rey,  6  Ad.  &  El.  469 ;  2  N.  &  P.  223, 
per  curiam].  But  such  a  count  is  good 
after  verdict,  Griffith  v.  Roxborough,  2 
Aiee.  &  Welsh.  734,  6  Dowl.  13.5,  S.  C. 
See  Chevers  v.  Parkington,  6  Dowl.  75; 
[or  on  a  general  demurrer,  Stericker  v. 
Barker,  9  M.  &  W.  321.  This  may 
seem,  at  first  sight,  inconsistent  with  the 
decision  in  Hayter  v.  Moat,  supra,  that 
an  indebitatus  count  in  assumpsit,  not 
averring  in  the  usual  form  a  promise  to 
pay  on  request,  is  bad  after  verdict.  But 
that  case  was  put  upon  its  true  footing 
in  Brown  v.  Boorman,  11  CI.  &  Fin.  1, 
from  which  it  appears  that  the  omission 
to  state  an  express  promise  is  not  fatal 
after  verdict,  if  the  declaration  show 


facts  which  necessarily  imply  a  pro- 
mise, with  a  breach  of  that  promise  be- 
fore action;  and  Hayter  v.  Moat  was 
there  sustained  on  the  ground  stated  by 
Parke  and  Alderson,  B.  B.,in  the  course 
of  the  argument,  that  for  want  of  the 
usual  averment  of  a  promise  to  pay  on 
request,  the  count  did  not  state  debitum 
solvendum  in  presenti,  and  that  it  was 
consistent  with  the  averment  of  a  debt 
that  it  was  payable  after  a  credit  which 
had  not  expired.  In  Gurney  v.  Hill,  2 
Dowl.  &  L.  936,  Wightman,  J.,  con- 
sidered a  count  on  a  promissory  note  not 
stating  when  it  was  to  be  paid,  unobject- 
ionable even  on  special  demurrer;  but 
perhaps  that  case  turned  upon  the  cha- 
racter of  the  instrument  declared  upon, 
in  which  a  general  promise  to  pay  means 
to  pay  immediately.  See,  also,  the 
common  form  of  declaration  on  a  bond, 
2  Chit.  PI.  284,  6th  edition,  and  315, 
7th  edition.] 

The  want  of  an  allegation  of  malice 
in  an  action  for  arresting  without  proba- 
ble cause,  is  bad  after  verdict,  Saxton  v. 
Castle,  6  A.  &  E.  660. 

Libel. — The  words  in  a  letter  from 
the  defendant  to  P.  were  as  follows : — 
"I  have  reason  to  believe  that  many  of 
the  flowers  of  which  I  have  been  robbed 
are  growing  on  your  premises."  Innu- 
endo, that  the  plaintiff  had  been  guilty 
of  larceny,  had  stolen  flowers,  plants, 
and  roots,  and  unlawfully  disposed  of 
them  to  P.,  and  placed  them  in  P.'s 
garden.  Held  that  after  verdict  the 
court  would  intend  that  they  were 
flowers  capable  of  being  subjects  of 
larceny.  Gardiner  v.  Williams,  5 
Tyrw.  757, 


special  demurrer,  or  an  objection  to  a  conviction  (as  was  lield  in  a  case  of  Re.^  v.  Hunt,) 
was  cured  by  a  verdict. 

(6)  Buxetidin  v.  Sharp,  C.  B.  E.  8  VViii.  3,  2  Salk.  662,  3  Salk.  12. 


654  smith's   leading    cases. 

The  distinction  here  noted  is,  in  principle,  a  clear  one;  but  the  quibbling 
rule  quoted  in  the  preceding  note,  rather  confuses  than  explains  it.  The 
amount  of  the  principle  is  this:  the  declaration  must  state  a  cause  of  action; 
if  some  matter  material  to  the  cause  of  action  be  averred  only  impliedly, 
iuferenlially,  indirectly,  or  with  too  much  generality,  yet  substantially  be 
averred,  the  defect  in  the  form  and  manner  of  the  allegation  will  be  com- 
monly cured  by  verdict :  but  if  it  be  not  stated  in  the  declaration  at  all,  the 
omission  cannot  be  supplied  by  the  verdict. 

<<  It  may  be  laid  down  as  a  general  rule,"  says  Judge  Washington,  in 
Gray  &  Osgood  v.  James  et  al.,  1  Peters's  C.  C.  476,  482,  (adopted  in  Shaw 
V.  lledmond,  11  Sergeant  &  Rawle,  27,)  "  that  a  declaration  ought  always 
to  show  a  title  in  the  plaintiff,  and  that  with  convenient  certainty.  It  ought 
to  state  all  matters  that  are  of  the  essence  of  the  action,  without  which  the 
plaintiff  fails  to  show  a  right  in  point  of  law  to  ask  for  the  judgment  of  the 
court  in  his  favour.  If  enough  is  stated  to  show  title  in  the  plaintiff,  and 
with  sufficient  certainty  to  enable  the  court  to  give  judgment,  but  with  less 
certainty  than  the  case  admitted  of,  and  which,  for  the  purpose  of  notice  to 
the  adverse  party  or  otherwise,  ought  to  have  been  stated,  the  defect  is 
cured  by  the  verdict.  The  court  will  presume  that  all  such  omissions  were 
supplied,  and  obscurities  explained,  at  the  trial,  by  the  evidence  given  to 
the  jury."  .  .  ''  The  rule  of  law,"  says  Tilghman,  C.  J.,  "  is,  that  where 
the  declaration  contains  a  substantial  cause  of  action,  it  shall  be  aided, 
though  defective  in  form ;"  Miles  v.  Oldfield,  4  Yeates,  423 ;  Welsh  v. 
Vanberger  &  Chambers,  id.  420;  Schlosscr  v.  Brown,  17  Sergeant  & 
Rawle,  250.  .  .  "  Those  defects,  or  omissions,  in  pleading,  which  are  cured- 
by  the  verdict,"  says  Mr.  Chancellor  Kent  in  Bartlett  v.  Crozier,  iu  error, 
17  Johnson,  4.39,  458,  ''are  those  necessary  circumstances  which  are  im- 
plied by  law,  and  which  invariably  follow  from  the  substantial  fact  charged. 
Thus,  where  it  is  pleaded,  that  land  was  assigned  for  dower,  it  is  not  neces- 
sary to  say  it  was  by  metes  and  bounds,  for  that  follows  of  course,  as  in- 
cluded in  a  lawful  assignment;  and  where  it  is  pleaded  that  the  sheriff  made 
his  warrant,  it  is  presumed  to  have  been  under  seal,  for  it  could  not  have 
been  a  warrant  if  it  was  not;  and  if  a  man  avers  he  is  heir  to  A.,  the  death 
of  A.  is  implied,  for  there  could  be  no  heir  if  he  were  living." — See  Bay- 
ard v.  Malcolm  and  Malcolm,  1  id.  453,  S.  C.  in  error,  2  id.  550,  where  the 
whole  subject  is  thoroughly  examined;  Addington  v.  Allen,  11  Wendell, 
375;  Dobson  v.  Campbell,  1  Sumner,  319;  Kingsley  v.  Bill  et  al.,  9  Mas- 
sachusetts, 199 ;  Ward  v.  Bartholomew,  G  Pickering,  409 ;  Hendrick  v. 
Seeley,  6  Connecticut,  17G;  Warren  v.  Hastings,  2  Grilman,  307;  McKee 
V.  Bartley,  9  Barr,  189  ;  Moor  v.  Boswell,  5  Massachusetts,  306,  where 
defects  in  certainty,  i.  e.  particularity,  and  in  directness,  were  decided  to  be 
aided  by  verdict. 

On  the  other  hand  the  entire  omission  of  somo.thing  that  is  necessary  to 
give  the  plaintiff  a  right  to  recover  what  he  claims;  as,  in  an  action  of 
covenant,  omitting  to  state  the  covenant,  whose  breach  is  averred;  Pumeroy 
V.  Bruce,  13  Sergeant  &  Rawle,  186 ;  in  an  action  of  assumpsit,  omitting 
to  state  the  consideration  of  the  promise  ;  Whitall  v.  Morse,  5  id.  358 ; 
Gains  v.  Kendrick,  2  Mills's  Reports  Const.  Ct.  of  So.  Car.  339;  Hall  v. 
S'nith,  Young  &  Hyde,  3  Munford,  550;  Beverleys  v.  Holmes,  4  id.  95  ; 
Moseley  v.  Jones,  5  id.  23;  Ilemmenway  v.  Hickcs,  4  Pickering,  497;  in 


R  U  S  n  T  0  N     V.     A  8  P  I  N  A  L  L.  655 

an  action  on  an  award,  omitting  to  state  that  notice  of  tlie  award  was  given 
to  the  defendant  before  the  comnicnccnient  of  the  suit,  such  notice  being 
necessary  as  part  of  the  foundation  of  the  action  ;  Kingsley  v.  Bill  et  al., 
9  Massachusetts,  199 :  in  an  action  to  recover  a  penalty  for  extortion,  omit- 
ting to  state  who  was  guilty  of  the  extortion ;  Stilson  v.  Tobey,  2  id.  521  : 
in  trespass  de  bonis  asportatis,  omitting  to  state  the  plaintiff's  title  to  the 
goods,  Carlisle  and  wife  v.  Weston,  1  Metcalf,  26,  will  not  be  helped  by  the 
verdict :  and  in  debt  on  bond  conditioned  for  the  performance  of  an  award 
which  required  certain  acts  to  be  done  by  the  defendant,  an  omission  to  state 
the  time  when  the  acts  were  to  be  done,  and  thereby  show  a  breach  of  duty 
by  defendant,  was  held  not  to  be  cured  by  a  verdict  on  special  issues  relatiog 
to  the  validity  of  the  award,  and  not  to  its  performance ;  Dale  v.  Dean,  16 
Connecticut,  580.  The  cases  of  White  v.  Delavan,  17  Wendell,  49,  and 
21  id.  26,  and  Fidler  v.  Delavan,  20  id.  57,  go  upon  this  distinction.  See 
GrifEn  V.  Pratt  and  another,  3  Connecticut,  513,  where  from  a  review  of  the 
eases,  the  principle  is  deduced,  that  <'the  omission  to  allege  a  matter  in  the 
pleadings,  essential  to  the  action,  unless  it  may  be  implied  from  the  allega- 
tions made,  is  never  cured  by  verdict." 

The  point  decided  in  the  principal  case, — that  notice  to  the  endorser  is  a 
part  of  the  plaintiff's  title  to  recover,  and  is,  indispensably,  to  be  alleged  in 
the  declaration,  has  been  approved  of  by  nutnerous  dicta  in  this  country; 
see  Eenner  v.  Bank  of  Columbia,  9  Wheaton,  582,  595.  In  Pennsylvania, 
it  was  expressly  decided  in  Miles  in  error  v.  O'Hara,  High  Court  of  Errors 
and  Appeals,  July,  1807,  of  which  there  is  the  following  note  in  1  Smith's 
Laws,  p.  18  :  "It  is  a  settled  principle,  that  judgment  cannot  be  rendered 
for  a  plaintiff,  unless  a  cause  of  action  appears  on  the  face  of  his  declaration. 
If  it  appears  in  substance,  the  court,  after  verdict,  will  support  it,  though 
defectively  set  forth ;  because  it  will  be  presumed  the  deficient  matters 
were  proved  on  the  trial ;  but  a  verdict  will  not  mend  the  matter,  where 
the  gist  of  the  case  is  not  laid  in  the  declaration,  though  it  will  cure  ambi- 
guity. The  want  of  an  express  promise  might  be  dispensed  with,  provided 
enough  was  stated  to  raise  a  promise  by  implication  of  law.  But  the  drawer 
of  a  bill  of  exchange  is  not  liable,  unless  he  receives  notice  of  the  non-pay- 
ment of  the  acceptor,  and  such  notice  must  be  alleged  in  the  declaration; 
an  allegation  in  the  declaration  that  the  drawer  became  liable  by  the  custom 
of  merchants,  is  not  sufficient;  because  the  law-merchant  is  not  a  matter  of 
/act,  but  of  law."  And  this  case  is  approved  of  in  Weigley's  adm'rs  v. 
Wier,  7  Sergeant  &  Eawle,  309,  310,  and  in  the  Juninta  Bank  v.  Hale  and 
another,  10  id.  157,  160  :  See  also  Smith  v.  The  Bank  of  Washington,  5 
id.  318,  321. 

The  cases  most  usually  occurring  in  which  a  defect  in  particularity  is  not 
aided  by  verdict,  are  those  in  which  the  cause  of  action  is  given  by  some 
statute.  It  is  a  well  settled  rule  of  pleading,  that  in  declaring  upon  a  cause 
of  action  arising  under  a  statute,  the  plaintiff  must  state  specially  every  fact 
required  by  the  statute  to  ground  the  action,  so  that  the  court  may  judge 
whether  the  liability  of  the  defendant  under  the  statute  has  accrued;  and 
if  this  be  not  done,  the  declaration  is  bad  after  verdict.  Bartlett  v.  Cro- 
zier,  17  Johnson,  439  ;  Williams  v.  Hingham  and  Quincy  Bridge  and  Turn- 
pike Corporation,  4  Pickering,  340. 

It  is  of  the  first  importance  that  the  distinction  in  Eushton  v.  Aspinall 


656  smith's   leading    cases. 

should  Lo  preserved,  because  of  another  rule  of  law,  that  a  plaintiflf  is  not 
bound  to  prove  moi'e  than  is  laid  in  his  declaration,  and  if  he  proves  all  that 
is  substantially  alleged  there,  he  must  have  a  verdict,  without  reference  to 
its  legal  sufficiency;  per  Lord  Mansfield  in  Spieres  v.  Parker,  1  T.  R.  141, 
1*45.  See  Howell  and  others  v.  M'Coy,  3  llawle,  256,  and  remarks  of 
Woodworth,  Senator,  in  Bayard  v.  Malcolm,  2  Johnson,  550,  553.  The 
importance  of  keeping  up  the  distinction,  in  this  view,  is  stated  with  great 
clearness  by  Judge  Washington:  "The  plaintiff  is  not  bound  to  prove 
more  than  he  lays  in  his  declaration  ]  and  therefore  we  must  presume  the 
case  stated  in  it  to  have  been  proved  and  no  other.  If  a  proper  case  be  laid, 
but  not  with  sufficient  precision,  and  the  defendant  will  not  at  a  proper  time 
take  advantage  of  the  defect,  the  court,  after  verdict,  will  presume  that  the 
want  of  precision  was  supported  at  the  time,  by  evidence ;  because,  as  a 
proper  ground  for  such  evidence  was  laid,  it  would  have  been  proper;  not 
so,  if  no  ground  at  all  is  laid  :"  The  United  States  v.  The  Virgin,  1  Peters's 
C.  C.  7,  9  :  accordingly,  in  this  case,  in  an  information  against  a  vessel  for 
receiving  from  another  vessel  bound  to  the  United  States,  goods  without 
permit,  against  the  act  of  Congress,  the  decree  of  the  District  Court,  on  the 
finding  of  the  jury,  against  the  vessel,  was  reversed,  because  the  libel  did 
not  allege  it  to  have  been  done  within  four  leagues  of  the  coast,  and  without 
that  fact,  there  was  no  forfeiture  under  the  act. 

H.  B.  W. 


[*340]  *MOSTYN  v.   FAB  RI  GAS. 


MICHAELMAS.— 15  G.  3,  B.  R.(a) 

[REPORTED    COWP.    161.] 

Trespass  and  false  imprisonment  lies  in  England  by  a  native  Minorquin,  against  a 

governor  of  Minorca,  for  such  injury  committed  by  him  in  Minorca. 
If  the  imprisonment  was  justifiable  the  governor  must  plead  his  authority  specially. 

On  the  8th  of  June,  in  last  term,  Mr.  Justice  Gould  came  personally  into 
court,  to  acknowledge  his  seal  affixed  to  a  bill  of  exceptions  in  this  case; 
and  errors  having  been  assigned  thereupon,  they  were  now  argued. 

This  was  an  action  of  trespass,  brought  in  the  Court  of  Common  Pleas, 
by  Anthony  Fabrigas  against  John  Mostyn,  for  an  assault  and  false  imprison- 
ment; in  which  the  plaintiff  declared,  that  the  defendant  on  the  1st  of 
September,  in  the  year  1771,  with  force  and  arms,  &c.,  made  an  assault 
upon  the  said  Anthony  at  Minorca,  [to  wit)  at  London  aforesaid,  in  the  parish 

(a)  See  Briant  v.  Clulten,  5  Dowl.  66. 


MOSTYN    V.     PABRIQAS.  657 

of  St.  Mary-le-Bow,  in  the  ward  of  Cheap,  and  beat,  wounded,  and  ill-treated 
him,  and  then  and  there  imprisoned  him,  and  kept  and  detained  him  in 
prison  there  for  a  long  time,  (totvit^  for  the  space  of  ten  months,  without  any 
reasonable  or  probable  cause,  contrary  to  the  laws  and  customs  of  this  realm, 
and  against  the  will  of  the  said  Anthony,  and  compelled  him  to  depart  from 
Minorca  aforesaid,  where  he  was  then  dwelling  and  resident,  and  carried, 
and  caused  to  be  carried,  the  said  Anthony  from  Minorca  aforesaid,  to  Car- 
thagena,  in  the  dominions  of  the  King  of  Spain,  &c.,  to  the  plaintiff's 
damage  of  10,000?. 

The  defendant  pleaded,  1st.  Not  guilty ;  upon  which  issue  was  joined. 
2ndly.  A  special  justification,  that  the  ^defendant  at  that  time,  &c.,  ^.;^oA-t-\ 
and  long  before,  was  governor  of  the  said  island  of  Minorca,  and  L  -I 
during  all  that  time  was  invested  with,  and  did  exercise  all  the  powers, 
privileges,  and  authorities,  civil  and  military,  belonging  to  the  government 
of  the  said  island  of  Minorca,  in  parts  beyond  the  seas;  and  the  said 
Anthony,  before  the  said  time  when,  &c.,  to  wit,  on  the  said  1st  of  Septem- 
ber, in  the  year  aforesaid,  at  the  island  of  Minorca  aforesaid,  was  guilty  of 
a  riot,  and  was  endeavouring  to  raise  a  mutiny  among  the  inhabitants  of  the 
said  island,  in  breach  of  the  peace ;  whereupon  the  said  John,  so  being 
governor  of  the  said  island  of  Minorca  as  aforesaid,  at  the  same  time,  when, 
&c.,  in  order  to  preserve  the  peace  and  government  of  the  said  island,  was 
obliged  to,  and  did  then  and  there  order  the  said  Anthony  to  be  banished 
from  the  said  island  of  Minorca;  and,  in  order  to  banish  the  said  Anthony, 
did  then  and  there  gently  lay  hands  upon  the  said  Anthony,  and  did  then 
and  there  seize  and  arrest  him,  and  did  keep  and  detain  the  said  Anthony, 
before  he  could  be  banished  from  the  said  island,  for  a  short  space  of  time, 
to  wit,  for  the  space  of  six  days,  then  next  following ;  and  afterwards,  to 
wit,  on  the  7th  of  September,  in  the  year  aforesaid,  at  Minorca,  aforesaid, 
did  carry  and  caused  to  be  carried  the  said  Anthony,  on  board  a  certain 
vessel,  from  the  island  of  Minorca  aforesaid,  to  Carthagena  aforesaid,  as  it 
was  lawful  for  him  to  do,  for  the  cause  aforesaid;  which  are  the  same  making 
the  said  assault  upon  the  said  Anthony  in  the  first  count  of  the  said  declara- 
tion mentioned,  and  beating,  and  ill-treating  him,  and  imprisoning  him,  and 
keeping  and  detaining  him  in  prison  for  the  said  space  of  time,  in  the  said 
first  count  of  the  said  declaration  mentioned,  and  compelling  the  said  An- 
thony to  depart  from  Minorca  aforesaid,  and  carrying  and  causing  to  be 
carried  the  said  Anthony  from  Minorca  to  Carthagena,  in  the  dominions  of 
the  King  of  Spain,  whereof  the  said  Anthony  has  above  complained  against 
him,  and  this  he  is  ready  to  verify;  wherefore  he  prays  judgment,  &c.,  with- 
out this,  that  the  said  John  was  guilty  of  the  said  trespass,  assault,  and 
imprisonment,  at  the  parish  of  St.  Mary-le-Bow,  in  the  ward  of  Cheap,  or 
elsewhere,  out  of  the  said  island  of  Minorca  aforesaid.  Rnjilication  de  in- 
juria sua  jiropj-id  absq.  tali  causa.  At  the  trial  the  jury  gave  a  -^oj^o-i 
verdict  for  the  *plaintiff,  upon  both  issues,  with  3000?.  damages,  and  L 
90?.  costs. 

The  substance  of  the  evidence,  as  stated  by  the  bill  of  exceptions,  was  as 
follows ;  on  behalf  of  the  plaintiff,  that  the  defendant  at  the  island  of 
Minorca  on  the  17th  of  September,  1771,  seized  the  plaintiff,  and  without 
any  trial,  imprisoned  him  for  the  space  of  six  days  against  his  will,  and 
banished  him  for  the  space  of  twelve  months  from  the  said  island  of  Minorca 

Vol.  I.— 42 


G58  smith's    leading   cases. 

to  Carthagena  in  Spain.  On  bclialf  of  the  defendant;  that  the  plaintiif  was 
a  native  of  Minorca,  and  at  the  time  of  seizing,  imprisoning,  and  banishing 
him  as  aforesaid,  was  an  inhabitant  of  and  residing  in  the  Arraval  of 
St.  Phillip's,  in  the  said  island;  that  Minorca  was  ceded  to  the  crown  of 
Great  Britain,  by  the  treaty  of  Utrecht,  in  the  year  1713.  That  the  Mi- 
norquins  are  in  general  governed  by  the  Spanish  laws,  but  when  it  serves 
their  purpose  plead  the  English  laws ;  that  there  are  certain  magistrates, 
called  the  Chief  eTustice  Criminal,  and  the  Chief  Justice  Civil,  in  the  said 
island:  that  the  said  island  is  divided  into  four  districts,  exclusive  of  the 
Arraval  of  St.  Phillip's ;  which  the  witness  always  understood  to  be  separate 
and  distinct  from  the  others,  and  under  the  immediate  order  of  the  governor ; 
so  that  no  magistrate  of  Mahon  could  go  there  to  exercise  any  function, 
without  leave  first  had  from  the  governor  :  that  the  Arraval  of  St.  Phillip's 
is  surrounded  by  a  line  wall  on  one  side,  and  on  the  other  by  the  sea,  and 
is  called  the  Royalty,  where  the  governor  has  greater  power  than  anywhere 
else  in  the  island ;  and  where  the  judges  cannot  interfere  but  by  the  govern- 
or's consent ;  that  nothing  can  be  executed  in  the  Arraval  but  by  the  go- 
vernor's leave,  and  the  judges  have  applied  to  him,  the  witness,  for  the 
governor's  leave  to  execute  process  there.  That  for  the  trial  of  murder, 
and  other  great  offences  committed  within  the  said  Arraval,  upon  application 
to  the  governor,  he  generally  appoints  the  assesseur  criminel  of  Mahon,  and 
for  lesser  offences,  the  mristastaph  ;  and  that  the  said  John  Mostyn,  at  the 
time  of  the  seizing,  imprisoning,  and  banishing  the  said  Anthony,  was  the 
governor  of  the  said  island  of  Minorca,  by  virtue  of  certain  letters-patent 
[-^.r, /o-i  of  his  present  Majesty.  Being  so  governor  of  the  said  island,  he 
L  -■  caused  the  said  Anthony  to  *be  seized,  imprisoned,  and  banished,  as 
aforesaid,  without  any  reasonable  or  probable  cause,  or  any  other  matter 
alleged  in  his  plea,  or  any  act  tending  thereto. 

This  case  was  argued  this  term,  by  Mr.  Buller,  for  the  plaintiff  in  error, 
and  Mr.  Pechham,  for  the  defendant.  Afterwards  in  Hilary  Term,  1775, 
by  Mr.  Serjeant  Walker,  for  the  plaintiff,  and  Mr.  Serjeant  Glynn,  for  the 
defendant. 

For  the  plaintiff  in  error.  There  are  two  questions,  1st.  Whether  in 
any  case  an  action  can  be  maintained  in  this  country  for  an  imprisonment 
committed  at  Minorca,  upon  a  native  of  that  place  ? 

2ndly.  Supposing  an  action  will  lie  against  any  other  person,  whether  it 
can  be  maintained  against  the  governor,  acting  as  such,  in  the  peculiar  dis- 
trict of  the  Arraval  of  St.  Phillip's  ? 

In  the  discussion  of  both  these  questions,  the  constitution  of  the  island 
of  Minorca,  and  of  the  Arraval  of  St.  Phillip's,  are  material.  Upon  the 
record  it  appears,  that  by  the  treaty  of  Utrecht,  the  inhabitants  had  their 
own  property  and  laws  preserved  to  them.  The  record  further  states  that 
the  Arraval  of  St.  Phillip's,  where  the  present  cause  of  action  arose,  is  sub- 
ject to  the  immediate  control  and  order  of  the  governor  only,  and  that  no 
judge  of  the  island  can  execute  any  function  there,  without  the  particular 
leave  of  the  governor  for  that  purpose.  1st,  If  that  be  so,  and  the  lex  loci 
differs  from  the  law  of  this  country;  the  lex  loci  must  decide,  and  not  the 
law  of  this  country.  The  case  of  Eobinson  v.  Bland,  2  Bur.  1078,  does 
not  interfere  with  this  position ;  for  the  doctrine  laid  down  in  that  case  is, 
that  where  a  transaction  is  entered  into  between  British  subjects  with  a  view 


MOSTYN     V.     FABRIGAS.  659 

to  the  law  of  England,  the  law  of  the  place  can  never  be  the  rule  which  is 
to  govern.  But  where  an  act  is  done,  as  in  this  case,  which  by  the  law  of 
England  would  be  a  crime,  but  in  the  country  where  it  is  committed  is  no 
crime  at  all,  the  lex  loci  cannot  but  be  the  rule.  It  was  so  held  by  Lord 
Chief  Justice  Pratt,  in  the  case  of  Pons  v.  Johnson,  and  in  a  like  case  of 
Ballister  v.  Johnson,  sittings  after  Trinity  Term,  17G5. 

2nd.  In  criminal  cases,  an  offence  committed  in  foreign  parts  cannot, 
except  by  particular  statutes,  be  tried  in  this  country.  1  Vesey,  ^^oj^  < -i 
24G,  The  East  India  Company  v.  Campbell.  *If  crimes  committed  L  J 
abi'oad  cannot  be  tried  here,  much  less  ought  civil  injuries,  because  the 
latter  depend  upon  the  police  and  constitution  of  the  country  where  they 
occur,  and  the  same  conduct  may  be  actionable  in  one  country,  which  is 
justifiable  in  another.  But  in  crimes,  as  murder,  perjury,  and  many  other 
offences,  the  law  of  most  countries  take  for  their  basis  the  law  of  God  and 
the  law  of  nature ;  and,  therefore,  though  the  trial  be  in  a  different  country 
from  that  in  which  the  offence  was  committed,  there  is  a  greater  probability 
of  distributing  equal  justice  in  such  cases  than  in  civil  actions.  In  Keil- 
wey,  202,  it  was  held  that  the  Court  of  Chancery  cannot  entertain. a  suit  for 
dower  in  the  Isle  of  Man,  though  it  is  part  of  the  territorial  dominions  of 
the  crown  of  England.  3rd.  The  cases  where  the  courts  of  Westminster 
have  taken  cognizance  of  transactions  arising  abroad,  seem  to  be  wholly  on 
contracts,  where  the  laws  of  the  foreign  country  have  agreed  with  the  laws 
of  England,  and  between  English  subjects ;  and  even  there  it  is  done  by  a 
legal  fiction;  namely,  by  supposing  under  a  videlicet,  that  the  cause  of 
action  did  arise  within  this  country,  and  that  the  place  abroad  lay  either  in 
London  or  in  Islington.  But  where  it  appears  upon  the  face  of  the  record, 
that  the  cause  of  action  did  arise  in  foreign  parts,  there  it  has  been  held 
that  the  court  has  no  jurisdiction,  2  Lutw.  946.  Assault  and  false  imprison- 
ment of  the  plaintiff,  at  Fort  St.  George,  in  the  East  Indies,  in  parts  beyond 
the  seas;  viz.,  at  London,  in  the  parish  of  St.  Mary-le-Bow,  in  the  ward  of 
Cheap.  It  was  resolved,  by  the  whole  court,  that  the  declaration  was  ill, 
because  the  trespass  is  supposed  to  be  committed  at  Fort  St.  George,  in  parts 
beyond  the  seas,  videlicet,  in  London;  which  is  repugnant  and  absurd:  and 
it  was  said,  by  the  Chief  Justice,  that  if  a  bond  bore  date  at  Paris,  in  the 
kingdom  of  France,  it  is  not  triable  here.  In  the  present  case,  it  does 
appear  upon  the  record,  that  the  offence  complained  of  was  committed  in 
parts  beyond  the  seas,  and  the  defendant  has  concluded  his  plea  with  a 
traverse,  that  he  was  not  guilty  in  London,  in  the  parish  of  St.  Marj-le- 
Bow,  or  elsewhere  out  of  the  island  of  Minorca.  Besides,  it  stands  admitted 
by  the  plaintiff;  because  if  he  had  thought  fit  to  have  denied  it,  he  should 
have  made  a  new  assignment,  or  have  taken  issue  on  the  place.  Therefore, 
*as  Justice  Dodderidge  says,  in  Latch.  4,  the  court  must  take  notice,  p^qic-i 
that  the  cause  of  action  arose  out  of  their  jurisdiction.  L         J 

Before  the  statute  of  Jeofails,  even  in  cases  the  most  transitory,  if  the 
cause  of  action  was  laid  in  London,  and  there  was  a  local  justification,  as  at 
Oxford,  the  cause  must  have  been  tried  at  Oxford,  and  not  in  London. 
But  the  statute  of  Jeofails  does  not  extend  to  Minorca :  therefore,  this  case 
stands  entirely  upon  the  common  law ;  by  which  the  trial  is  bad,  and  the 
verdict  void. 


660  smith's   leading   cases. 

The  inconveniences  of  entertaining  such  an  action  in  this  country  are 
many,  but  none  can  attend  the  rejecting  it.  For  it  must  be  detcrnnued  by 
the  law  of  this  country,  or  by  the  law  of  the  place  where  the  act  was  done. 
If  by  our  law,  it  would  be  the  highest  injustice,  by  making  a  man  who  has 
regulated  his  conduct  by  one  law,  amenable  to  another  totally  opposite.  If 
by  the  law  of  Minorca,  how  is  it  to  be  proved  ?  There  is  no  legal  mode  of 
certifying  it,  no  process  to  compel  the  attendance  of  witnesses,  nor  means  to 
make  them  answer.  The  consequence  would  be  to  encourage  every  dis- 
affected or  mutinous  soldier  to  bring  actions  against  his  officer,  and  to  put 
him  upon  his  defence  without  the  power  of  proving  either  the  law  or  the 
facts  of  his  case. 

Second  point.  If  an  action  would  lie  against  any  other  person,  yet,  it 
cannot  be  maintained  against  the  Governor  of  Minorca,  acting  as  such, 
within  the  Arraval  of  St.  Phillip's. 

The  Governor  of  Minorca,  at  least  within  the  district  of  St.  Phillip's,  is 
absolute;  both  the  civil  and  criminal  jurisdiction  vest  in  him  as  the  supreme 
power,  and  as  such  he  is  accountable  to  none  but  God.  But  supposing  he 
were  not  absolute  :  in  this  case,  the  act  complained  of  was  done  by  him 
in  a  judicial  capacity  as  criminal  judge;  for  which  no  man  is  answerable. 
1  Salk.  396,  Groenvelt  V.  Burwell ;  2  Mod.  218,  Show.  Pari.  Cases,  24, 
Dutton  V.  Howell,  are  in  point  to  this  position  ;  but  more  particularly  the 
last  case,  where,  in  trespass,  assault,  and  false  imprisonment,  the  defendant 
justified  as  Governor  of  Barbadoes,  under  an  order  from  the  council  of  state 
in  Barbadoes,  made  by  himself  and  the  council,  against  the  plaintiff  (who 
was  the  deputy -governor,)  for  mal-administration  in  his  office;  and  the 
r*^4fi1  *House  of  Lords  determined,  that  the  action  would  not  lie  here.  All 
L  -•  the  grounds  and  reasons  urged  in  that  case,  and  all  the  inconve- 
niences pointed  out  against  that  action,  hold  strongly  in  the  present.  This 
is  an  action  brought  against  the  defendant  for  what  he  did  as  judge;  all 
the  records  and  evidence  which  relate  to  the  transaction,  are  in  Minorca, 
and  cannot  be  brought  here  ;  the  laws  there  are  different  from  what  they 
are  in  this  country;  and  as  it  is  said  in  the  conclusion  of  that  argument, 
government  must  be  very  weak  indeed,  and  the  persons  entrusted  with  it 
very  uneas}',  if  they  are  subject  to  be  charged  with  actions  here,  for  what 
they  do  in  that  character  in  those  countries.  Therefore,  unless  that  case 
can  be  materially  distinguished  from  the  present,  it  will  be  an  authority, 
and  the  highest  authority  that  can  be  adduced,  to  show  that  this  action  can- 
not be  maintained  ;  and  that  the  plaintifi'  in  error  is  entitled  to  the  judgment 
of  the  court. 

Mr.  Ptckham,  for  the  defendant  in  error.  1st.  The  objection  to  the 
jurisdiction  is  now  too  late;  for  wherever  a  party  has  once  submitted  to  the 
jurisdiction  of  the  court,  he  is  for  ever  after  precluded  from  making  any  ob- 
jection to  it.  Year  Book,  22  H.  6,  fol.  7 ;  Co  Litt.  127,  b  ;  T.  Raym.  34  ; 
1  Mod.  81;  2  Mod.  273 ;  2  Lord  Raym.  884;  2  Vern.  483. 

Secondly.  An  action  of  trespass  can  be  brought  in  England  for  an  injury 
done  abroad.  It  is  a  transitory  action,  and  may  be  brought  any  where.  Co. 
Litt.  282;  12  Co.  114;  Co.  Litt.  261,  b,  where  Lord  Coke  says,  that  an 
obligation  made  beyond  seas,  at  Bordeaux  in  France,  may  be  sued  here  in 
England,  in  what  place  the  plaintiff  will.  Captain  Parker  brought  an  action 
for  trespass  and  false  imprisonment  against  Lord  Clive,  for  injuries  received 


MOSTYN    V.    FABRIGAS.  661 

in  India,  and  it  was  never  doubted  but  that  the  action  did  lie.  And  at  this 
time  there  is  an  action  depending  between  Gregory  Cojiuiaul,  an  Armenian 
merchant,  and  Grovernor  Verelst,  in  which  the  cause  of  action  arose  in  Ben- 
gal. A  bill  was  filed  by  the  Governor  in  the  Exchequer  for  an  injunction, 
•which  was  granted;  but  on  appeal  to  the  House  of  Lords,  the  injunction  was 
dissolved;  therefore,  the  Supreme  Court  of  Judicature,  by  dissolving  the 
injunction,  acknowledged  that  an  action  of  trespass  could  be  maintained  in 
England,  though  the  cause  of  action  arose  in  India. 

Thirdly.  Tliere  is  no  disability  in  the  plaintiff  which  *incapaci-  p*o  1 7-1 
tates  him  from  bringing  this  action.  Every  person  born  within  the  L  ^ 
ligeance  of  the  King,  though  without  the  realm,  is  a  natural-born  subject, 
and,  as  such,  is  entitled  to  sue  in  the  King's  courts.  Co.  Litt.  129.  The 
plaintiff,  though  born  in  a  conquered  country,  is  a  subject,  and  within  the 
ligeance  of  the  King,  2  Burr.  858. 

In  1  Salk.  404,  upon  a  bill  to  foreclose  a  mortgage  in  the  island  of  Sarke, 
the  defendants  pleaded  to  the  jurisdiction,  viz.,  that  the  island  was  governed 
by  the  laws  of  Normandy,  and  that  the  party  ought  to  sue  in  the  courts  of 
the  island,  and  appeal.  But  Lord  Keeper  Wright  overruled  the  plea; 
"  otherwise  there  might  be  a  failure  of  justice,  if  the  Chancery  could  not 
hold  plea  in  such  case,  the  party  being  here."  In  this  case  both  the  par- 
ties are  upon  the  spot.  In  case  of  Bamkissenseat  v.  Barker,  upon  a  bill 
filed  against  the  representatives  of  the  Governor  of  Patna,  for  money  due  to 
him  as  his  Banyan  ;  the  defendant  pleaded,  that  the  plaintiff  was  an  alien 
born,  and  an  alien  infidel,  and  therefore  could  have  no  suit  here.  But  Lord 
Hardwicke  said,  ^'as  the  plaintiff's  was  a  mere  personal  demand,  it  was 
extremely  clear  that  he  might  bring  a  bill  in  this  court."  And  he  over- 
ruled the  defendant's  plea  without  hearing  one  counsel  on  either  side. 

The  case  of  the  Countess  of  Derby,  Keilwey,  202,  does  not  affect  the  pre- 
sent question ;  for  that  was  a  claim  of  dower ;  which  is  a  local  action,  and 
cannot,  as  a  transitory  action,  be  tried  any  where.  The  other  cases  from 
Latch  and  Lutwyche  were  either  local  actions,  or  questions  upon  demurrer; 
therefore,  not  applicable  to  the  case  before  the  court ;  for  a  party  may  avail 
himself  of  many  things  upon  a  demurrer,  which  he  cannot  by  a  writ  of 
error.  The  true  distinction  is  between  transitory  and  local  actions ;  the 
former  of  which  may  be  tried  any  where  ;  the  latter  cannot,  and  this  is  a 
transitory  action.  But  there  is  one  case  which  more  particularly  points  out 
the  distinction,  which  is  the  case  of  Mr.  Skinner,  referred  to  the  twelve 
Judges  from  the  council  board.  In  the  year  1G57,  when  trade  was  open  to 
the  East  Indies,  he  possessed  himself  of  a  house  and  warehouse,  which  he 
filled  with  goods  at  Jamby,  and  he  purchased  of  the  King  at  Great  Jamby 
the  islands  of  Baretha.  The  agents  of  the  East  India  Company  assaulted 
his  person,  seized  his  warehouse,  carried  away  his  goods,  and  took  rjfO  lo-i 
and  *possessed  themselves  of  the  islands  of  Baretha.  Upon  this  L 
case  it  was  propounded  to  the  Judges,  by  an  order  from  the  King  in  coun- 
cil, dated  the  12th  April,  1665,  "  Whether  Mr.  Skinner  could  have  a  full 
relief  in  an  ordinary  court  of  law?"  Their  opinion  was,  '' Tiiat  his  Ma- 
jesty's ordinary  courts  of  justice  at  Westminster  can  give  relief  for  taking 
away  and  spoiling  his  ship,  goods  and  papers,  and  assaulting  and  wounding 
his  person,  notwithstanding  the  same  was  done  beyond  the  seas.  But  that 
as  to  the  detaining  and  possessing  of  the  house  and  islands  in  the  case  men- 


662  smith's    leading  cases. 

tioncd,  he  is  not  rclicvablc  in  any  ordinary  court  of  justice."  It  is  mani- 
fest from  this  case  that  the  twelve  Judges  held,  that  an  action  might  be 
maintained  here  for  spoiling  his  goods,  and  seizing  his  person,  because  an 
action  of  trespass  is  a  transitory  action  ;  but  an  action  could  not  be  main- 
tained for  possessing  the  house  and  land,  because  it  is  a  local  action. 

Fourth  point.  It  is  contended  that  General  Mostyn  governs  as  all  abso- 
lute sovereigns  do,  and  that  stet  pro  ratione  voluntas  is  the  only  rule  of  his 
conduct.  From  whom  does  the  governor  derive  this  despotism  ?  Not  from 
the  King,  for  the  King  has  no  such  power,  and  therefore  cannot  delegate  it 
to  another.  Many  cases  have  been  cited,  and  much  argument  has  been  ad- 
duced, to  prove  that  a  man  is  not  responsible  in  an  action  for  what  he  has 
done  as  a  judge ;  and  the  case  of  Dutton  v.  Howell  has  been  much  dwelt 
upon;  but  that  case  has  not  the  least  resemblance  to  the  present.  The 
ground  of  that  decision  was,  that  Sir  John  Dutton  was  acting  with  his 
council  in  a  judicial  capacity,  in  a  matter  of  public  accusation,  and  agreeable 
to  the  laws  of  Barbadoes,  and  only  let  the  law  take  its  course  against  a 
criminal.  But  Grovernor  Mostyn  neither  sat  as  a  military  nor  as  civil  judge  ) 
he  heard  no  accusation,  he  entered  into  no  proof;  he  did  not  even  see  the 
prisoner;  but  in  direct  opposition  to  all  laws,  and  in  violation  of  the  first 
principles  of  justice,  followed  no  rule  but  his  own  arbitrary  will,  and  went 
out  of  his  way  to  prosecute  the  innocent.  It  that  be  so,  he  is  responsible 
for  the  injury  he  has  done :  and  so  was  the  opinion  of  the  court  of  C  B., 
as  delivered  by  Lord  Chief  Justice  De  Grey,  on  the  motion  for  a  new  trial. 
If  the  Governor  had  secured  him,  said  his  Lordship,  nay,  if  he  had  barely 
r*^J.Q1  committed  him,  that  he  might  have  been  ^amenable  to  justice:  and 
L  -'  if  he  had  immediately  ordered  a  prosecution  upon  any  part  of  his 
conduct,  it  would  have  been  another  question ;  but  the  governor  knew  he 
could  no  more  imprison  him  for  a  twelvemonth  (and  the  banishment  for  a 
year  is  a  continuation  of  the  original  imprisoumentV  than  that  he  could 
inflict  the  torture.  Lord  Bellamont's  case,  2  Salk.  625,  Pas.  12  W.  3,  is  a 
case  in  point  to  show  that  a  governor  abroad  is  responsible  here  :  and  the  stat. 
12  W.  3,  passed  the  same  year,  for  making  governors  abroad  amenable  here 
in  criminal  cases,  affords  a  strong  inference  that  they  were  already  answer- 
able for  civil  injuries,  or  the  legislature  would  at  the  same  time  have  pro- 
vided against  that  mischief.  But  there  is  a  late  decision  not  distinguishable 
from  the  case  in  question.  Comyn  v.  Sabine,  Governor  of  Gibraltar,  Mich. 
11  Geo.  2.  The  declaration  stated,  that  the  plaintiff  was  a  master  carpenter 
of  the  office  of  ordnance  at  Gibraltar;  That  Governor  Sabine  tried  him  by  a 
court-martial,  to  which  he  was  not  subject;  that  he  underwent  a  sentence  of 
500  lashes ;  and  that  he  was  compelled  to  depart  from  G-ibraltar,  which  he 
laid  to  his  damage  of  10,000;'.  The  defendant  pleaded  not  guilty,  and  jus- 
tified under  the  sentence  of  the  court-martial.  There  was  a  verdict  for  the 
plaintiff,  with  TOO?,  damages.  A  writ  of  error  was  brought,  but  the  judg- 
ment affirmed. 

With  respect  to  the  Arraval  of  St.  Phillip's  being  a  peculiar  district, 
under  the  immediate  authority  of  the  governor  alone,  the  opinion  of  Lord 
Chief  Justice  De  Grey,  upon  the  motion  for  a  new  trial,  is  a  complete 
answer :  <'  One  of  the  witnesses  in  the  cause,"  said  his  Lordship,  <<  repre- 
sented to  the  jury,  that  in  some  particular  cases,  especially  in  criminal 
matters,  the  governor  resident  upon  the  island  does  exercise  a  legislative 


I 


MOSTYN     V.     PABRIGAS.  663 

power.  It  was  gross  ignorance  in  that  person  to  imagine  such  a  thing  ;  I 
may  say  it  was  impossible,  that  a  man  who  lived  upon  the  island  in  the  sta- 
tion he  had  done,  should  not  know  better,  thun  to  think  that  the  governor 
had  a  civil  and  a  criminal  power  in  him.  The  governor  is  the  King's  ser- 
vant; his  commission  is  from  him,  and  he  is  to  execute  the  power  he  is 
invested  with  under  that  commission ;  which  is,  to  execute  the  laws  of  Mi- 
norca, under  such  regulations  as  the  King  shall  make  in  council.  It  was  a 
vain  imagination  in  the  witnesses  to  say,  that  there  were  five  terminos  in  the 
island  of  Minorca:  I  *have  at  various  times  seen  a  multitude  of  pj-oKrv-, 
authentic  documents  and  papers  relative  to  that  island;  and  I  do  not  ^ 
believe  that,  in  any  one  of  them,  the  idea  of  the  Arraval  of  St.  Phillip's 
being  a  distinct  jurisdiction  was  ever  started.  Mahon  is  one  of  the  four  ter- 
minos, and  St.  Phillip's,  and  all  the  district  about  it,  is  comprehended  within 
that  termino;  but  to  suppose  that  there  is  a  distinct  jurisdiction,  separate 
from  the  government  of  the  island,  is  ridiculous  and  absurd."  Therefore,  as 
the  defendant  by  pleading  in  chief,  and  submitting  his  cause  to  the  decision 
of  an  English  jury,  is  too  late  in  his  objection  to  the  jurisdiction  of  the 
court ;  as  no  disability  incapacitates  the  plaintiff  from  seeking  redress  here ; 
and  as  the  action  which  is  a  transitory  one  is  clearly  maintainable  in  this 
country,  though  the  cause  of  action  arose  abroad,  the  judgment  ought  to  be 
affirmed.  Should  it  be  reversed,  I  fear  the  public,  with  too  much  truth, 
will  apply  the  lines  of  the  Roman  satirist,  on  the  drunken  Marius,  to  the 
present  occasion ;  and  they  will  say  of  Governor  Mostyn,  as  was  formerly 
said  of  him, 

Hie  est  damnatus  inani  judicio; 

and  to  the  Minorquins,  if  Mr.  Fabrigas  should  be  deprived  of  that  satisfac- 
tion in  damages,  which  the  jury  gave  him. 

At  tu  victrix  provincia  ploras. 

Lord  Mansfield. — Let  it  stand  for  another  argument.     It  has  been  ex- 
tremely well  argued  on  both  sides. 


On  Friday,  27th  January,  1775,  it  was  very  ably  argued  by  Mr.  Serjeant 
Glynn  for  the  plaintiff,  and  by  Mr.  Serjeant  Walker  for  the  defendant. 

Lord  Mansfield. — This  is  an  action  brought  by  the  plaintiff  against  the 
defendant,  for  an  assault  and  false  imprisonment ;  and  part  of  the  complaint 
made  being  for  banishing  him  from  the  island  of  Minoi'ca  to  Carthagena  in 
Spain,  it  was  necessary  for  the  plaintiff,  in  his  declaration,  to  take  notice  of 
the  real  place  where  the  cause  of  action  arose  :  therefore,  he  has  stated  it  to 
be  in  Minorca;  with  a  videlicet,  at  London,  in  the  parish  of  St.  Mary-le- 
Bow,  in  the  ward  of  Cheap.  Had  it  not  been  for  that  particular  requisite, 
he  might  have  stated  it  to  have  been  in  the  county  of  Middlesex.  To  this 
declaration  the  defendant  put  in  two  pleas.  First,  "  not  guilty  ;"  secondly, 
that  he  was  Governor  of  Minorca,  by  letters-patent  from  the  crown  ;  or-j-i 
*that  the  plaintiff  was  raising  a  sedition  and  mutiny;  and  that,  in  L 
consequence  of  such  sedition  and  mutiny,  he  did  imprison  him,  and  send  him 
out  of  the  island ;  which,  as  governor,  being  invested  with  all  the  privileges, 
rights,  &c.  of  governor,  he  alleges  he  had  a  right  to  do.    To  this  plea  the  plain- 


664  smith's  leading  cases. 

tiff  docs  not  demur,  nor  does  be  deny  that  it  would  be  a  justification  in  case 
it  were  true  :  but  be  deuies  tbe  truth  of  the  fact :  and  puts  in  issue  whether 
the  fact  of  the  pica  is  true.  The  plea  avers  that  the  assault  for  which  the 
action  was  brought  arose  in  the  island  of  Minorca,  out  of  the  realm  of  Eng- 
land, and  nowhere  else.  To  this  the  plaintiff  has  made  no  new  assignment, 
and  therefore  by  his  replication  he  admits  the  locality  of  the  cause  of  action. 
Thus  it  stood  on  the  pleadings.  At  the  trial  the  plaintiff  went  into  the 
evidence  of  bis  case,  and  the  defendant  into  evidence  of  his;  but  on  behalf 
of  the  defendant,  evidence  different  from  the  facts  alleged  in  his  plea  of  jus- 
tification was  given,  to  show  that  the  Arraval  of  St.  Phillip's,  where  the 
injury  complained  of  was  done,  was  not  within  either  of  the  four  precincts, 
but  is  a  district  of  itself,  more  immediately  under  tbe  power  of  the  governor ; 
and  that  no  judge  of  the  island  can  exercise  jurisdiction  there,  without  a 
special  appointment  from  him.  Upon  the  facts  of  the  case,  the  judge  left 
it  to  the  jury,  who  found  a  verdict  for  the  plaintiff,  with  3000?.  damages. 
The  defendant  has  tendered  a  bill  of  exceptions,  upon  which  bill  of  excep- 
tions the  cause  comes  before  us  :  and  the  great  difficulty  I  have  had  upon 
both  the  arguments,  has  been  to  be  able  clearly  to  comprehend  what  the 
question  is,  which  is  meant  seriously  to  be  brought  before  the  court. 

If  I  understand  the  counsel  for  Governor  Mostyn  right,  what  they  say  is 
this  :  The  plea  of  not  guilty  is  totally  immaterial ;  and  so  is  the  plea  of 
justification  :  because  upon  the  plaintiff's  own  showing  it  appears,  1st,  that 
the  cause  of  action  arose  in  Minorca,  out  of  the  realm ;  2ndly,  that  the  de- 
fendant was  Governor  of  Minorca,  and  by  virtue  of  such  his  authority  im- 
prisoned the  plaintiff.  From  thence  it  is  argued,  that  the  judge  who  tried 
the  cause  ought  to  have  refused  any  evidence  whatsoever,  and  have  directed 
the  jury  to  find  for  the  defendant :  and  three  reasons  have  been  assigned. 
One,  insisted  upon  in  the  former  argument,  was,  that  the  plaintiff,  being  a 
^o-.T-i  Minorquin,  is  incapacitated  from  *bringing  an  action  in  the  King's 
L  "-'  courts  in  England.  To  dispose  of  that  objection  at  once,  I  shall 
only  say,  it  is  wisely  abandoned  to-day;  for  it  is  impossible  there  ever  could 
exist  a  doubt,  but  that  a  subject  born  in  Minorca  has  as  good  a  right  to 
appeal  to  the  King's  courts  of  justice  as  one  who  is  born  within  the  sound 
of  Bow  bell;  and  the  objection  made  in  this  case,  of  its  not  being  stated  on 
the  record  that  the  plaintiff  was  born  since  the  treaty  of  Utrecht,  makes  no 
difference.  The  two  other  grounds  are,  1st,  That  the  defendant  being  Go- 
vernor of  Minorca  is  answerable  for  no  injury  whatsoever  done  by  him  in 
that  capacity :  2ndly,  That  the  injury  being  done  at  Minorca,  out  of  the 
realm,  is  not  cognizable  by  the  King's  courts  in  England. — As  to  the  first, 
nothing  is  so  clear  as  that  to  an  action  of  this  kind,  the  defendant,  if  he  has 
any  justification,  must  plead  it ;  and  there  is  nothing  more  clear,  than  that 
if  the  court  has  not  a  general  jurisdiction  of  the  subject-matter,  be  must 
plead  to  the  jurisdiction,  and  cannot  take  advantage  of  it  upon  the  general 
issue.  Therefore,  by  the  law  of  England,  if  an  action  be  brought  against  a 
judge  of  record  for  an  act  done  by  him  in  his  judicial  capacity,  he  may  plead 
that  he  did  it  as  judge  of  record,  and  that  will  be  a  complete  justification. 
So  in  this  case,  if  the  injury  complained  of  had  been  done  by  the  defendant 
as  a  judge,  though  it  arose  in  a  foreign  country,  where  the  technical  distinc- 
tion of  a  court  of  record  does  not  exist,  yet  sitting  as  a  judge  in  a  court  of 
justice,  subject  to  a  superior  review,  be  would  be  within  the  reason  of  the 


MOSTYN    V.    rABRIQAS.  665 

rule  wliicb  the  law  of  England  says  shall  be  a  justification ;  but  then  it  must 
be  pleaded. f  Here  no  such  matter  is  pleaded,  nor  is  it  even  in  evidence 
that  he  sat  as  judge  of  a  court  of  justice.  Therefore  I  lay  out  of  the  case 
everything  relative  to  the  Arraval  of  St.  Phillip's. 

The  first  point,  then,  upon  this  ground  is,  the  sacredness  of  the  defendant's 
person  as  governor.  If  it  were  true  that  the  law  makes  him  that  sacred 
character,  he  must  plead  it,  and  set  forth  his  commission  as  special  matter 
of  justification  ;  because  prima  facie  the  court  has  jurisdiction.  But  I  will 
not  rest  the  answer  upon  that  only.  It  has  been  insisted  by  way  of  distinc- 
tion, that,  supposing  an  action  will  lie  for  an  injury  of  this  kind  committed 
by  one  individual  against  another,  in  a  country  beyond  the  seas,  but  within 
*the  dominion  of  the  crown  of  England,  yet  it  shall  not  emphatically  (-iiforo-i 
lie  against  the  governor.  In  answer  to  which  I  say,  that  for  many  L  J 
reasons,  if  it  did  not  lie  against  any  other  man,  it  shall  most  emphatically 
lie  against  the  governor. 

lu  every  plea  to  the  jurisdiction,  you  must  state  another  jurisdiction; 
therefore,  if  an  action  is  brought  here  for  a  matter  arising  in  Wales,  to  bar 
the  remedy  sought  in  this  court,  you  must  show  the  jurisdiction  of  the  court 
of  "Wales;  and  in  every  case  to  repel  the  jurisdiction  of  the  King's  court, 
you  must  show  a  more  proper  and  more  sufiicient  jurisdiction  :  for  if  there 
is  no  other  mode  of  trial,  that  alone  will  give  the  King's  courts  a  jurisdic- 
tion. Now,  in  this  case  no  other  jurisdiction  is  shown,  even  so  much  as  in 
argument.  And  if  the  King's  courts  of  justice  cannot  hold  plea  in  such 
case,  no  other  court  can  do  it.  For  it  is  truly  said  that  a  governor  is  in 
the  nature  of  a  viceroy ;  and  therefore  locally,  during  his  government,  no 
civil  or  criminal  action  will  lie  against  him  :  the  reason  is,  because  upon 
process  he  would  be  subject  to  imprisonment. J  But  here  the  injury  is  said 
to  have  happened  in  the  Arraval  of  St.  Phillip's,  where,  without  his  leave, 
no  jurisdiction  can  exist.  If  that  be  so,  there  can  be  no  remedy  whatsoever, 
if  it  is  not  in  the  King's  courts  :  because  when  he  is  out  of  the  government, 
and  is  returned  with  his  property  into  this  country,  there  are  not  even  his 
effects  left  in  the  island  to  be  attached. 

Another  very  strong  reason,  which  was  alluded  to  by  Mr.  Serjeant  Glynn, 
would  alone  be  decisive ;  and  it  is  this  :  that  though  the  charge  brought 
against  him  is  for  a  civil  injury,  yet  it  is  likewise  of  a  criminal  nature;  be- 
cause it  is  in  abuse  of  the  authority  delegated  to  him  by  the  King's  letters- 
patent,  under  the  great  seal.  Now,  if  everything  committed  within  a  do- 
minion is  triable  by  the  courts  within  that  dominion,  yet  the  effect  or  extent 
of  the  King's  letters-patent,  which  gave  the  authority,  can  only  be  tried  in 
the  King's  courts;  for  no  question  concerning  the  scignory  can  be  tried 
within  the  seignory  itself.  Therefore,  where  a  question  respecting  the 
seignory  arises  in  the  proprietary  governments,  or  between  two  provinces  of 
America,  or  in  the  Isle  of  Man,  it  is  cognizable  by  the  King's  courts  in  Eng- 
land only.  In  the  case  of  the  Isle  of  Man,  it  was  so  *decided  in  the  r-jijOKi-i 
time  of  Queen  Elizabeth,  by  the  chief  justice  and  many  of  the  judges.  L 
So  that  emphatically  the  governor  must  be  tried  in  England,  to  see  whether 

t  Sec  Salk.  306  ;  Vau^h.  133 ;  12  C.  24  ;  Lord  Raym.  466;  6  T.  R.  449  ;  3  M.  &.  S. 
411.  See  too  1  T.R.  513,  514,  535,  550,  493,  784.  4  Taunt.  67  ;  2  C.  &  P.  146,  IB. 
&C.  163.    4B.  &C.  292. 

t  [But  see  as  to  this  position  the  note  368  b.] 


666  smith's  leading  cases. 

he  has  exercised  the  authority  delegated  to  him  by  the  letters-patent,  legally 
and  properly ;  or  whether  he  has  abused  it,  in  violation  of  the  laws  of  Eng- 
land, and  the  trust  so  reposed  in  him. 

It  does  not  follow  from  hence,  that,  let  the  cause  of  action  arise  where  it 
may,  a  man  is  not  entitled  to  make  use  of  every  justification  his  case  will 
admit  of,  which  ought  to  be  a  defence  to  him.  If  he  has  acted  right  accord- 
ing to  the  authority  with  which  he  is  invested,  he  must  lay  it  before  the 
court  by  way  of  plea,  and  the  court  will  exercise  their  judgment  whether  it 
is  a  sufficient  justification  or  not.  In  this  case,  if  the  justification  had  been 
proved,  the  court  might  have  considered  it  as  a  sufficient  answer  :  and,  if  the 
nature  of  the  case  would  have  allowed  of  it,  might  have  adjudged,  that  the 
raising  a  mutiny  was  a  good  ground  for  such  a  summary  proceeding.  I  can 
conceive  cases  in  time  of  war  in  which  a  governor  would  be  justified,  though 
he  acted  very  arbitrarily,  in  which  he  could  not  be  justified  in  time  of  peace. 
Suppose,  during  a  siege  or  upon  an  invasion  of  Minorca,  the  governor  should 
judge  it  proper  to  send  a  hundred  of  the  inhabitants  out  of  the  island,  from 
motives  of  real  and  general  expediency ;  or  suppose,  upon  a  general  suspi- 
cion, he  should  take  people  up  as  spies;  upon  proper  circumstances  laid 
before  the  court,  it  would  be  very  fit  to  see  whether  he  had  acted  as  the 
governor  of  a  garrison  ought,  according  to  the  circumstances  of  the  case. 
But  it  is  objected,  supposing  the  defendant  to  have  acted  as  the  Spanish 
governor  was  empowered  to  do  before,  how  is  it  to  be  known  here  that  by 
the  laws  and  constitution  of  Spain  he  was  authorized  so  to  act  ?  The  way  of 
knowing  foreign  laws  is,  by  admitting  them  to  be  proved  as  facts,  and  the 
court  must  assist  the  jury  in  ascertaining  what  the  law  is.  For  instance,  if 
there  is  a  French  settlement,  the  construction  of  which  depends  upon  the 
custom  of  Paris,  witnesses  must  be  received  to  explain  what  the  custom  is  ; 
as  evidence  is  received  of  customs  in  respect  of  trade.  There  is  a  case  of 
the  kind  I  have  just  stated.  So  in  the  supreme  resort  before  the  king  in 
council,  the  privy  council  determines  all  cases  that  arise  in  the  plantations, 
in  Gibraltar,  or  Minorca,  in  Jersey  or  Guernsey  j  and  they  inform  them- 
^ocr-i  selves,  *by  having  the  law  stated  to  them. — As  to  suggestions  with 
L  -'  regard  to  the  difficulty  of  bringing  witnesses,  the  court  must  take 
care  that  the  defendant  is  not  surprised,  and  that  he  has  a  fair  opportunity 
of  bringing  his  evidence,  if  it  is  a  case  proper  in  other  respects  for  the  juris- 
diction of  the  court.  There  may  be  some  cases  arising  abroad,  which  may 
not  be  fit  to  be  tried  here  ;  but  that  cannot  be  the  case  of  a  governor,  injur- 
ing a  man  contrary  to  the  duty  of  his  office,  and  in  violation  of  the  trust 
reposed  in  him  by  the  king's  commission. 

If  he  wants  the  testimony  of  witnesses  whom  he  cannot  compel  to  attend, 
the  court  may  do  what  this  court  did  in  the  case  of  a  criminal  prosecution  of 
a  woman  who  had  received  a  pension  as  an  officer's  widow  :  and  it  was 
charged  in  the  indictment,  that  she  never  was  married  to  him.  She  alleged 
a  marriage  in  Scotland,  but  that  she  could  not  compel  her  witnesses  to  come 
up,  to  give  evidence.  The  court  obliged  the  prosecutor  to  consent  that  the 
witnesses  might  be  examined  before  any  of  the  judges  of  the  court  of  ses- 
sion, or  any  of  the  barons  of  the  court  of  exchequer  in  Scotland,  and  that 
the  depositions  so  taken  should  be  read  at  the  trial.  And  they  declared, 
that  they  would  have  put  off  the  trial  of  the  indictment  from  time  to  time 


MOSTYN    V.    FABRIGAS,  667 

for  ever,  unless  the  prosecutor  had  so  consented.  The  witnesses  were  so 
examined  before  the  lord  president  of  the  court  of  session. 

It  is  a  matter  of  course  in  aid  of  a  trial  at  law,  to  apply  to  a  court  of 
equity  for  a  commission  and  injunction  in  the  meantime :  and  where  a  real 
ground  is  laid,  the  court  will  take  care  that  justice  is  done  to  the  defendant 
as  well  as  to  the  plaintiff.f  Therefore,  in  every  light  in  which  I  see  the 
subject,  I  am  of  opinion  that  the  action  holds  emphatically  against  the  gov- 
ernor, if  it  did  not  hold  in  the  case  of  any  other  person.  If  so,  he  is  account- 
able in  this  court  or  he  is  accountable  nowhere,  for  the  king  in  council  has 
no  jurisdiction.  Complaints  made  to  the  king  in  council  tend  to  remove  the 
governor,  or  to  take  from  him  any  commission  which  he  holds  during  the 
pleasure  of  the  crown.  But  if  he  is  in  England,  and  holds  nothing  at  the 
pleasure  of  the  crown,  they  have  no  jurisdiction  to  make  reparation,  by 
giving  damages,  or  to  punish  him  in  any  shape  for  the  injury  committed. 
Therefore  to  lay  down  in  an  English  *court  of  justice  such  a  mon-  p^ocf?-! 
strous  proposition,  as  that  a  governor  acting  by  virtue  of  letters-  L  -• 
patent  under  the  great  seal  is  accountable  only  to  God  and  his  own  con- 
science ;  that  he  is  absolutely  despotic,  and  can  spoil,  plunder,  and  affect 
his  majesty's  subjects,  both  in  their  liberty  and  property,  with  impunity,  is 
a  doctrine  that  cannot  be  maintained. 

In  Lord  Bellamont's  case,  2  Salk.  625,  cited  by  Mr.  Peckham,  a  motion 
was  made  for  a  trial  at  bar,  and  granted  because  the  attorney-general  was  to 
defend  it  on  the  part  of  the  king;  which  shows  plainly  that  such  an  action 
existed.  And  in  Way  v.  Yally,  6  Mod.  195,  Justice  Powell  says,  that  an 
action  of  false  imprisonment  has  been  brought  here  against  a  governor  of 
Jamaica,  for  an  imprisonment  there,  and  the  laws  of  the  country  were  given 
in  evidence.  The  Governor  of  Jamaica  in  that  case  never  thought  that  he 
was  not  amenable.  He  defended  himself  and  possibly  shewed,  by  the  laws 
of  the  country,  an  act  of  the  assembly  which  justified  that  imprisonment,  and 
the  court  received  it  as  they  ought  to  do.  For  whatever  is  a  justification  in 
the  place  where  the  thing  is  done,  ought  to  be  a  justification  where  the  case 
is  tried. — I  remember,  early  in  my  time,  being  counsel  in  an  action  brought 
by  a  carpenter  in  the  train  of  artillery,  against  Governor  Sabine  who  was 
governor  of  Gibraltar,  and  who  had  barely  confirmed  the  sentence  of  a  court- 
martial,  by  which  the  plaintiif  had  been  tried,  and  sentenced  to  be  whipped. 
The  governor  was  very  ably  defended,  but  nobody  ever  thought  that  the 
action  would  not  lie ;  and  it  being  proved  at  the  trial,  that  the  tradesmen 
who  follow  the  train  are  not  liable  to  martial  law,  the  court  were  of  opinion, 
and  the  jury  accordingly  found  the  defendant  guilty  of  the  trespass,  as  hav- 
ing had  a  share  in  the  sentence ;  and  gave  500/.  damages. 

The  next  objection  which  has  been  made  is  a  general  objection,  with 
regard  to  the  matter  arising  abroad ;  namely,  that  as  the  cause  of  action 
arose  abroad,  it  cannot  be  tried  here  in  England. 

There  is  a  formal  and  a  substantial  distinction  as  to  the  locality  of  trials. 

+  And  now,  by  st.  1  W.  4,  c.  22,  courts  of  common  law  can  order  the  examination  of 
witnesses  to  be  taken  in  writing  wliether  they  reside  in  a  foreign  country,  a  colony,  or  in 
England,  but  under  circumstances  which  disable  them  from  attending  to  give  evidence. 
See  Doe  v.  Pattison,  3  Dowl.  35  ;  Bain  v.  De  Vetrie,  3  Dowl.  517 ;  Bridges  v.  Fisher,  1 
Bing.  N.  C.  512;  Prince  v.  Samo,-  4  Dowl.  5 ;  Bordeaux  v.  Rowe,  1  Bing,  N.  C.  721  ; 
Ducliett  V.  Williams,  1  Tyrwh.  502;  Wainwright  v.  Bland,  3  Dowl.  653. 


6G8  SMITU'S     LEADING     CASES. 

I  state  them  as  different  things :  the  substantial  distinction  is,  where  the 
proceeding  is  in  rem,  and  where  the  effect  of  the  judgment  cannot  be  had,  if 
_^o  r^-i  it  is  laid  in  a  wrong  place.  That  is  the  case  of  all  ejectments  *where 
I-  J  possession  is  to  be  delivered  by  the  sheriff  of  the  county ;  and  as 
trials  in  England  are  in  particular  counties,  the  officers  are  county  officers ; 
therefore  the  judgment  could  not  have  effect,  if  the  action  was  not  laid  in 
the  proper  county. 

"With  regard  to  matters  that  arise  out  of  the  realm,  there  is  a  substantial 
distinction  of  locality  too ;  for  there  are  some  cases  that  arise  out  of  the 
realm  which  ought  not  to  be  tried  anywhere  but  in  the  country  where  they 
arise;  as  in  the  case  alluded  to  by  Serjeant  "Walker  :  if  two  persons  tight  in 
France,  and  both  happening  casually  to  be  here,  one  should  bring  an  action 
of  assault  against  the  other,  it  might  be  a  doubt  whether  such  an  action 
could  be  maintained  here ;  because,  though  it  is  not  a  criminal  prosecution, 
it  must  be  laid  to  be  against  the  peace  of  the  king ;!  but  the  breach  of  the 
peace  is  merely  local,  though  the  trespass  against  the  person  is  transitory. 
Therefore  without  giving  any  opinion,  it  might  perhaps  be  triable  only  where 
both  parties  at  the  time  were  subjects.  So  if  an  action  were  brought  rela- 
tive to  an  estate  in  a  foi'eign  country,  where  the  question  was  a  matter  of 
title  only  and  not  of  damages,  there  might  be  a  solid  distinction  of  locality. 

But  there  is  likewise  a  formal  distinction,  which  arises  from  the  mode  of 
trial :  for  trials  in  England  being  by  jury,  and  the  kingdom  being  divided 
into  counties,  and  each  county  considered  as  a  separate  district  or  princi- 
pality, it  is  absolutely  necessary  that  there  should  be  some  county  where  the 
action  is  brought  in  particular,  that  there  may  be  a  process  to  the  sheriff  of 
that  county,  to  bring  a  jury  from  thence  to  try  it.  This  matter  of  form  goes 
to  all  cases  that  arise  abroad :  but  the  law  makes  a  distinction  between  trans- 
itory actions  and  local  actions.  If  the  matter  which  is  the  cause  of  a  trans- 
itory action  arises  within  the  realm,  it  may  be  laid  in  any  county — the  place 
is  not  material;  and  if  an  imprisonment  in  Middlesex  it  maybe  laid  in  Sur- 
rey, and  though  proved  to  be  done  in  Middlesex,  the  place  not  being  mate- 
rial, it  does  not  at  all  prevent  the  plaintiff  recovering  damages  :  the  place  of 
transitory  actions  is  never  material,  except  where  by  particular  acts  of  par- 
liament it  is  made  so ;  as  in  the  case  of  churchwardens  and  constables,  and 
other  cases,  which  require  the  action  to  be  brought  in  the  county.  The 
parties,  upon  sufficient  ground,  have  an  opportunity  of  applying  to  the 
r*qp,c-|  court  in  time  to  change  the  venue;  but  if  *they  go  to  trial  without 
L  -^  it,  that  is  no  objection.  So  all  actions  of  a  transitory  nature  that 
arise  abroad  may  be  laid  as  happening  in  an  English  county.  But  there  are 
occasions  which  make  it  absolutely  necessary  to  state  in  the  declaration,  that 
the  cause  of  action  really  happened  abroad ;  as  in  the  case  of  specialties, 
where  the  date  must  be  set  forth.  If  the  declaration  states  a  specialty  to 
have  been  made  at  "Westminster  in   Middlesex,  and  upon  producing  the 


+  But  it  seems  questionable  wliethcr  the  words  contra  pacem  be  now  necessary  in  a 
declaration  of  trespass,  for  the  fine  to  the  king  is  abolished,  and  though  in  Day  v.  Mus- 
kett,  L.  Raym,  985,  Lord  Holt  said  that  it  was  not  the  contra  pacem,  but  the  vi  ct  armis, 
that  may  now  be  omitted,  yet  qusrc,  wliethcr  they  c;in  be  held  to  stand  on  a  different 
footing  especially  since  reg.  Hil.,  183'2,  has  substituted  the  single  word  '  trespass''  for  the 
recital  of  the  writ,  which  formerly  rendered  the  omission  of  contra  pacem  at  the  end  of  the 
declaration  immaterial.     See  Com.  Di.  Pleader,  3  M.  8. 


MOSTYN    V.    FABRIGAS,  GG9 

deed,  it  bears  date  at  Bengal,  the  action  is  gone ;  because  it  is  such  a  vari- 
riance  between  the  deed  and  the  declaration  as  makes  it  appear  to  be  a  dif- 
ferent instrument.  There  is  some  confusion  in  the  books  upon  the  stat.  G 
Rich.  2.  But  I  do  not  put  the  objection  upon  that  statute.  I  rest  it  singly 
upon  this  ground.  If  the  true  date  or  description  of  the  bond  is  not  stated, 
it  is  at  variance.  But  the  law  has  in  that  case  invented  a  fiction  j  and  has 
said,  the  party  shall  first  set  out  the  description  truly,  and  then  give  a  venue 
only  for  form,  and  for  the  sake  of  trial  by  a  videlicet,  in  the  county  of  Mid- 
dlesex, or  any  other  county.  But  no  judge  ever  thought  that  when  the 
declaration  said  in  Fort  St.  George,  viz.,  in  Cheapside,  that  the  plaintiff 
meant  it  was  in  Cheapside.  It  is  a  fiction  of  form ;  every  country  has  its 
forms,  which  are  invented  for  the  furtherance  of  justice ;  and  it  is  a  certain 
rule,  that  a  fiction  of  law  shall  never  be  contradicted  so  as  to  defeat  the  end 
for  which  it  was  invented,  but  for  every  other  purpose  it  may  be  contra- 
dicted. Now  the  fiction  invented  in  these  cases  is  barely  for  the  mode  of 
trial;  to  every  other  purpose,  therefore,  it  shall  be  contradicted,  but  not  fur 
the  purpose  of  saying  the  cause  shall  not  be  tried.  So  in  the  case  that  was 
long  agitated  and  finally  determined  some  years  ago,  upon  a  fiction  of  the 
teste  of  writs  taken  out  in  the  vacation,  which  bear  date  as  of  the  last  day  of 
the  term,  it  was  held,  that  the  fiction  shall  not  be  contradicted  so  as  to 
invalidate  the  writ,  by  averring  that  it  issued  on  a  day  in  the  vacation  : 
because  the  fiction  was  invented  for  the  furtherance  of  justice,  and  to  make 
the  writ  appear  right  in  form.  But  where  the  true  time  of  suing  out  a  lat- 
itat is  material,  as  on  a  plea  of  non  assumpsit  infra  sex  annos,  there  it 
may  be  shown  that  the  latitat  was  sued  out  after  the  six  years,  notwithstand- 
ing the  teste.  I  am  sorry  to  observe,  that  some  sayings  have  been  alluded 
to,  inaccurately  taken  down,  and  improperly  printed,  where  the  court  has 
been  made  to  say,  that  as  men  they  have  one  *way  of  thinking,  and  ^orni 
as  judges  they  have  another,  which  is  an  absurdity;  whereas  in  fact  L 
they  only  meant  to  support  the  fiction.  I  will  mention  a  case  or  two  to 
show  that  that  is  the  meaning  of  it. 

In  6  Mod.  228,  the  case  of  Roberts  v.  Harnage  is  thus  stated:  The  plain- 
tiff declared  that  the  defendant  became  b)und  to  him  at  Fort  St.  David's  in 
the  East  Indies  at  London,  in  such  a  boad;  upon  demurrer  the  objection 
was,  that  the  bond  appeared  to  have  been  sealed  and  delivered  at  Fort  St. 
David's  in  the  East  Indies,  and  therefore  the  date  made  it  local,  and,  by 
consequence,  the  declaration  ought  to  have  been  of  a  bind  made  at  Fort  St. 
David's,  in  the  East  Indies,  viz.,  at  Islington  in  the  county  of  Middlesex  ;  or 
ill  such  a  ward  or  parisli  in  London  :  and  of  that  opinion  was  the  whole  court. 
This  is  an  inaccurate  state  of  the  case.  But  in  2  Lord  Raym.  1042,  it  is  more 
truly  reported,  and  stated  as  follows :  it  appeared  by  the  declaration,  that 
the  bond  was  made  at  London  in  the  ward  of  Cheap ;  upon  oyer,  the  bond  was 
set  out,  and  it  appeared  upon  the  face  of  it  to  be  dated  at  Fort  St.  Greorge 
in  the  East  Indies  ;  the  defendant  pleaded  the  variance  in  abatement,  and  the 
plaintiff  demurred,  and  it  was  held  bad:  but  the  court  said  that  it  would  not 
have  been  good,  if  laid  at  Fort  St.  George,  in  the  East  Indies,  to  wit,  at  Lon- 
don in  the  ward  of  Clieap.  The  objection  there  was,  that  tliey  had  laid  it 
falsely ;  for  they  had  laid  the  bond  as  made  at  London  ;  whereas,  when  the 
bond  was  produced,  it  appeared  to  be  made  at  another  place,  which  was  a 
variance.     A  case  was  quoted  from  Latch,  and  a  case  from  Lutwyche,  on  the 


G70  smith's   leading    cases. 

former  argument,  but  I  will  mention  a  case  posterior  in  point  of  time,  where 
both  these  cases  were  cited,  and  no  regard  at  all  paid  to  them ;  and  that  is 
the  case  of  Parlcer  v.  Crook,  10  Mod.  255.  It  was  an  action  of  covenant 
upon  a  deed  indented ;  it  was  objected  to  the  declaration,  that  the  defend- 
ant is  said  in  the  declaration  to  continue  at  Fort  St.  Greorge,  in  the  East 
Indies :  and  upon  the  oyer  of  the  deed  it  bore  date  at  Fort  St.  George,  and 
therefore  the  court,  as  was  pretended,  had  no  jurisdiction ;  Latch,  fol.  4. 
Lutwyche,  950.  Lord  Chief  Justice  Parker  said,  that  an  action  will  lie  in 
England  upon  a  deed  dated  in  foreign  parts ;  or  else  the  party  can  have  no 
remedy ;  but  then  in  the  declaration  a  place  in  England  must  be  alleged 
r*^rO"l  P^'^  forma.  Grenerally  speaking,  the  deed,  *upon  the  oyer  of  it,  must 
L  -"be  consistent  with  the  declaration  ;  but  in  these  cases,  propter  neces- 
sitatcm,  if  the  inconsistency  be  as  little  as  possible,  it  is  not  to  be  regarded; 
and  here  the  contract  being  of  a  voyage  which  was  to  be  performed  from 
Fort  St.  George  to  Great  Britain,  does  import,  that  Fort  St.  George  is  dif- 
ferent from  Great  Britain ;  and  after  taking  time  to  consider  of  it  in  Hilary 
term,  the  plaintiff  had  his  judgment,  notwithstanding  the  objection.  There- 
fore, the  whole  amounts  to  this ;  that  where  the  action  is  substantially  such 
a  one  as  the  court  can  hold  plea  of,  as  the  mode  of  trial  is  by  jury,  and  as 
the  jury  must  be  called  together  by  process  directed  to  the  sheriff  of  the 
county,  matter  of  form  is  added  to  the  fiction,  to  say  it  is  in  that  county, 
and  then  the  whole  of  the  inquiry  is,  whether  it  is  an  action  that  ought  to 
be  maintained.  But  can  it  be  doubted,  that  actions  may  be  maintained 
here,  not  only  upon  contracts,  which  follow  the  persons,  but  for  injuries 
done  by  subject  to  subject;  especially  for  injuries  where  the  whole  that 
is  prayed  is  a  reparation  in  damages,  or  satisfaction  to  be  made  by  pro- 
cess against  the  person  or  his  effects,  within  the  jurisdiction  of  the  court  ? 
We  know  it  is  within  every  day's  experience.  I  was  embarrassed  a 
great  while  to  find  out  whether  the  counsel  for  the  plaintiff  really  meant 
to  make  a  question  of  it.  In  sea  batteries  the  plaintiff  often  lays  the 
injury  to  have  been  done  in  Middlesex,  and  then  proves  it  to  be  done 
a  thousand  leagues  distant  on  the  other  side  of  the  Atlantic.  There  are 
cases  of  offences  on  the  high  seas,  where  it  is  of  necessity  to  lay  in  the 
declaration,  that  it  was  done  upon  the  high  seas ;  as  the  taking  a  ship.  There 
is  a  case  of  that  sort  occurs  to  my  memery;  the  reason  I  remember  it  is, 
because  there  was  a  question  about  the  jurisdiction.  There  likewise  was  an 
action  of  that  kind  before  Lord  Chief  Justice  Lee,  and  another  before  me, 
in  which  I  quoted  that  determination,  to  show  that  when  the  lords  commis- 
sioners of  prizes  have  given  judgment,  that  is  conclusive  in  the  actioii ; 
and  likewise  when  they  have  given  judgment,  it  is  conclusive  as  to  the  costs, 
whether  they  have  given  costs  or  not.  It  is  necessary  in  such  actions  to 
state  in  the  declaration,  that  the  ship  was  taken,  or  seized  on  the  high  seas, 
videlicet,  in  Cheapside.  But  it  cannot  be  seriously  contended  that  the  judge 
pqp-i-i  and  jury  who  try  thecause  fancy  the  ship  is  sailing  in  Cheapside  :  *no, 
^  J  the  plain  sense  of  it  is  that,  as  an  action  lies  in  England  for  the  ship 
which  was  taken  on  the  high  seas,  Cheapside  is  named  as  a  venue  ;  which 
is  saying  no  more,  than  that  the  party  prays  the  action  may  be  tried  in 
London.  But  if  a  party  were  at  liberty  to  offer  reasons  of  fact  contrary  to  the 
truthof  the  case,  there  would  be  no  end  of  the  embarrassment.  At  the 
last  sittings  there  were  two  actions  brought  by  Armenian  merchants,  for  as- 
saults and  trespasses  in  the  East  Indies,  and  they  are  very  strong  authorities. 


MOSTYN    V.     FABRIGAS.  671 

Serjeant  Glynn  said,  that  the  defendant,  Mr.  Verelst,  was  very  ably  assisted  : 
so  he  was,  and  by  men  who  would  have  taken  the  objection,  if  they  had 
thought  it  maintainable,  and  the  action  came  on  to  be  tried  after  this  case 
had  been  argued  once  ;  yet  the  counsel  did  not  think  it  could  be  supported. 
Mr.  Verelst  would  have  been  glad  to  make  the  objection ;  he  would  not  have 
left  it  to  a  jury,  if  he  could  have  stopped  them  short,  and  said.  You  shall 
not  try  the  action  at  all.  I  have  had  some  actions  before  me,  rather  going 
further  than  these  transitory  actions ;  that  is,  going  to  cases  which  in  Eng- 
land would  be  local  actions.  I  remember  one,  I  think  it  was  an  action 
brought  against  Captain  Gambier,  who  by  order  of  Admiral  Boscawen  had 
pulled  down  the  houses  of  some  sutlers  who  supplied  the  navy  and  sailors 
with  spirituous  liquors  ;  and  whether  the  act  was  right  or  wrong,  it  was 
certainly  done  with  a  good  intention  on  the  part  of  the  admiral,  for  the 
health  of  the  sailors  was  aifccted  by  frequenting  them.  They  were  pulled 
down  :  the  captain  was  inattentive  enough  to  bring  the  sutler  over  in  his 
own  ship,  who  would  never  have  got  to  England  otherwise ;  and  as  soon  as 
he  came  hei-e  he  was  advised  that  he  should  bring  an  action  against  the  cap- 
tain. Pie  brought  his  action,  and  one  of  the  counts  in  the  declaration  was 
for  pulling  down  the  houses.  The  objection  was  taken  to  the  count  for 
pulling  down  the  houses  j  and  the  cases  of  Skinner  and  the  East  India 
Company  was  cited  in  support  of  the  objection.  On  the  other  side,  they 
produced  from  a  manuscript  note,  a  case  before  Lord  Chief  Justice  Eyre, 
where  he  overruled  the  objection;  and  I  overruled  the  objection  upon 
this  principle,  namely,  that  the  reparation  here  was  personal,  and  for  dam- 
ages, and  that  otherwise  there  would  be  a  failure  of  justice  ;  for  it  was  upon 
the  coast  of  Nova  Scotia  where  there  were  no  regular  courts  of  *judi-  r^j^of^oi 
cature :  but  if  there  had  been,  Captain  Gambier  might  never  go  ^  ^-' 
there  again ;  and  therefore  the  reason  of  locality  in  such  an  action  in  Eng- 
land did  not  hold.  I  quoted  a  case  of  an  injury  of  that  sort  in  the  East 
Indies,  where  even  in  a  court  of  equity  Lord  Hardwicke  had  directed  satis- 
faction to  be  made  in  damages :  that  case  before  Lord  Hardwicke  was  not 
much  contested,  but  this  ease  before  me  was  fully  and  seriously  argued,  and 
a  thousand  pounds  damages  given  against  Captain  Gambier.  I  do  not  quote 
this  for  the  authority  of  my  opinion,  because  that  opinion  is  very  likely  to 
be  erroneous,  but  I  quote  it  for  this  reason — A  thousand  pounds  damages 
and  the  costs  were  a  considerable  sum.  As  the  captain  hud  acted  by  the 
orders  of  Admiral  Boscawen,  the  representatives  of  the  admiral  defended  the 
cause,  and  paid  the  damages  and  costs  recovered.  The  case  was  favourable  ; 
for  what  the  admiral  did  was  certainly  well  intended ;  and  yet  there  was  no 
motion  for  a  new  trial. 

I  recollect  another  cause  that  came  on  before  me :  which  was  the  case  of 
Admiral  Palliscr.  There  the  very  gist  of  the  action  was  local :  it  was  for 
destroying  fishing-huts  upon  the  Labrador  coast.  After  the  treaty  of  Paris, 
the  Canadians  early  in  the  season  erected  huts  for  fishing ;  and  by  that  means 
got  an  advantage,  by  beginning  earlier,  of  the  fishermen  who  came  from 
England.  It  was  a  nice  question  upon  the  right  of  the  Canadians.  How- 
ever, the  admiral,  from  general  principles  of  policy,  ordered  these  huts  to  be 
destroyed.  The  cause  went  on  a  great  way.  The  defendant  would  have 
stopped  it  short  at  once,  if  he  could  have  made  such  an  objection,  but  it  was 
not  made.     There  are  no  local  courts  among  the  Esquimaux  Indians  upon 


672 


smith's  leading   cases. 


that  part  of  the  Labrador  cjast;  and  therefore  whatever  injury  had  been 
done  there  by  any  of  the  king's  officers  would  have  been  altogether  without 
redress,  if  the  objection  of  locality  would  have  held.  The  consequence  of 
that  circumstance  shows,  that  where  the  reason  fails,  even  in  actions  which 
in  England  would  be  local  actions,  yet  it  does  not  hold  to  places  beyond  the 
seas  within  the  king's  dominions.  Admiral  Palliser's  case  went  off  upon  a 
proposal  of  a  reference,  and  ended  by  an  award.  But  as  to  transitory  actions 
there  is  not  a  colour  of  doubt,  that  every  action  that  is  transitory  may  be 
laid  in  any  county  in  England,  though  the  matter  arises  beyond  the  seas  j 
_^qpq-|  ^^^  when  it  is  absolutely  ^necessary  to  lay  the  truth  of  the  case  in 
L  -"  the  declaration,  there  is  a  fiction  of  law  to  assist  you,  and  you  shall 
not  make  use  of  the  truth  of  the  case  against  that  fiction,  but  you  may 
make  use  of  it  to  every  other  purpose.  I  am  clearly  of  opinion  not  only 
against  the  objections  made,  but  that  there  does  not  appear  a  question  upon 
which  the  objections  could  arise. 
The  three  other  judges  concurred. 

Per  Cur.     Judyment  ajjirmed. 


It  is  very  curious  and  instructive  to 
trace  the  progress  of  the  English  law, 
respecting  the  locality  of  actions.  Dur- 
ing the  earliest  ages  of  our  judicial  his- 
tory, juries  were  selected  for  the  very 
reasons  which  would  now  argue  their 
unfitness,  videlicet,  their  personal  ac- 
quaintance with  the  parties  and  the 
merits  of  the  cause ;  and  few  rules  of 
law  were  enforced  with  greater  strict- 
ness than  those  which  required  that  the 
venue,  visne,  or  viclnetum,  in  other 
words  the  neighbourhood  whence  the 
juries  were  to  bo  summoned,  should  be 
'also  that  in  which  the  cause  of  action 
had  arisen  ;  in  order  that  the  jury  who 
were  to  determine  it  principally  from 
their  own  private  knowledge,  and  who 
were  liable  to  be  altainted  if  they  deli- 
vered a  wrong  verdict,  might  be  persons 
likely  to  be  acquainted  with  the  nature 
of  the  transaction  which  they  were  call- 
ed upon  to  try.  Percgrina  judicia, 
says  a  law  of  Henry  the  First,  niodis 
omnibus  submovemus.  In  order  to  effect 
this  end,  the  parties  litigant  were  re- 
quired to  state  in  their  pleadings  with 
the  utmost  certainty,  not  merely  the 
county,  but  the  very  venue,  i.  e.,  the 
very  district,  hundred,  or  vill,  within 
that  county,  where  tlie  facts  that  they 
alleged  liad  taken  place,  in  order  that 
the  sheriff  might  be  directed  to  surntnon 
the  jury  from  the  proper  neighbourhood, 
in  case  issue  shr.uld  be  taken  on  any  of 
such  allegations.     It  followed,  of  course, 


that  a  new  venue  was  designated  as 
often  as  the  allegations  of  the  parties 
litigant  shifted  the  scene  of  the  transac- 
tion from  one  part  of  the  country  to  an- 
other. This  was,  however,  soon  found 
to  produce  great  inconveniences  ;  for  in 
mixed  transactions,  which  may  happen 
partly  in  one  place,  and  partly  in  ano- 
ther, it  was  extremely  dilhcult  to  ascer- 
tain the  r'lghivenue;  and  asthe  number 
of  these  transactions  increased  with  in- 
creasing civilization,  these  difficulties 
about  determining  the  place  of  trial  be- 
came of  constant  occurrence,  and  soon 
induced  the  courts,  in  order  to  relieve 
themselves,  to  take  a  distinction  be- 
tween transitory  ma.iteTs,  such  as  a  con- 
tract, which  might  happen  any  where, 
and  local  ones,  such  as  a  trespass  to  the 
realty,  which  could  only  happen  in  one 
particular  place;  and  they  established 
as  a  rule,  that  in  transitory  matters  the 
plaintiff  should  have  a  right  to  lay  the 
venue  where  he  pleased,  and  the  defen- 
dant should  be  bound  to  fi.)llovv  it,  unless 
indeed  his  defence  consisted  of  some 
matter  in  its  nature  local,  and  which 
must  therefore,  exnecessitate  rei,  be  al- 
leged to  have  taken  place  where  it  really 
happened.  However,  this  distinction 
was  soon  abused  by  litigious  plaintitrs, 
who,  by  laying  the  venue  in  a  county 
distant  from  the  defendant's  residence, 
obliged  him  to  come  thither  with  his  wit- 
nesses; Gilb.  C.  P.  89;  and  liiis  occa- 
sioned a  return  to  the  ancient  strictness 


MOSTYN    V.     FABRIGAS. 


673 


with  regard  to  venues  expressed  in  tlie 
above  law  of  Henry  the  First,  Accord- 
ingiy  by  St.  6  Richard  2,  cap.  2,  it  was 
enacted  that,  "  to  the  intent  that  writs 
of  debt,  and  account,  and  all  other  such 
actions  be  from  henceforth  taken  in 
their  counties,  and  directed  to  the  sheriffs 
of  the  counties  where  the  contracts  of 
the  same  actions  did  arise,  that  if,  from 
henceforth,  in  pleas  upon  the  same  writs 
it  shall  be  declared  that  the  contract 
thereof  was  in  another  county  than  is 
-*'5'-41  contained  in  the  original  *writ, 
I-  -I  that  then  the  said  writ  shall  be 
utterly  abated  :"  and,  as  the  words  of 
this  st'itute  were  found  not  quite  suffi- 
cient to  effect  the  object,  statute  4  Henry 
the  Fourth,  c.  18,  directed  that  attorneys 
should  be  sworn  "that  they  would  make 
no  suit  in  a  foreign  county." 

After  these  statutes  the  judges  adopt- 
ed various  means  of  enforcing  their  pro- 
visions. At  first  they  examined  the 
plaintiff  on  oith,  as  to  the  truth  of  his 
venue ;  afterwards  they  allowed  the  de- 
feuiiaiit  to  traverse  it  and  try  it  in  an 
.issue,  ilastell.  Debt,  184,  b.  Fitz.  Abr., 
Brief  8,  and  still  later  they  made  a  rule 
of  court,  rendering  it  highly  penal  on 
attorneys  to  transgress  the  act  of  Hen. 
4;  R.  M.  1654,  pi.  5,  K.  B. ;  IM.  1654, 
pi.  8,  C.  P. ;  but  finding  that  the  mode 
of  traversing  the  venue  produced  great 
delay,  they  at  last  adopted  the  mode 
now  in  use  of  changing  it  on  motion, 
which  will  presently  be  described  more 
at  length. 

But  all  these  alterations  in  the  law 
applied,  it  must  be  borne  in  mind,  only 
to  iransilory  matters,  for  where  a  matter 
alleged  in  pleading  was  of  a  local  des- 
cription, whether  the  allegation  happen- 
ed in  a  declaration  or  in  any  subsequent 
pleading,  the  venue  for  the  trial  of  such 
matter  could  be  nowhere  but  at  the  very 
place  where  it  was  alleged  in  pleading 
to  have  happened,  and  therefore,  as  is 
observed  in  the  text,  "  even  in  cases  the 
most  transitory,  if  the  cause  of  action 
was  laid  in  London,  and  there  was  a 
Zoc«Z  justification  as  at  Oxford,  the  cause 
must  have  been  tried  in  Oxford,  not  in 
London."  Ace.  P^ord  v.  Brooke,  Cro. 
KHz.  261  :  Bowyer's  case,  Moor,  410. 
And  it  was  probably  this  strictness  of 
the  law  with  regard  to  venue  which 
rendered  it  necessary  to  confine  the  de- 
fendant so  long  to  a  single  plea,  since 
had  he  pleaded  several  pleas  on  which 
issues  had  been  taken  triable  by  different 
venues,  there  could  have  been  no  sir.gle 

Vol,  I.— 43 


trial  of  the  action;  and  accordingly  we 
find  that  it  was  not  till  after  the  effect 
of  the  statute  of  Charles  the  Second,  on 
venues,  had  become  well  settled  that 
the  very  same  year  which  put  an  end  to 
the  last  remnant  of  the  old  severity,  by 
abolishing  the  necessity  of  summoning 
hundredor-s,  also  endowed  the  defendant 
with  a  right  which  he  ought  in  justice 
always  to  have  possessed,  of  stating 
every  thing  in  his  defence  which  can  by 
law  be  made  available  to  exonerate  him  ; 
the  right  corresponding  to  which,  that, 
namely,  of  replying  to  the  defence  every 
thing  which  has  a  direct  tendency  to 
rebut  it,  is,  even  in  our  more  advanced 
times,  denied  the  plaintiff. 

ft  may  not  be  inapposite  here  to  ob- 
serve that  the  stat.  34  Hen.  8,  c.  84,  had 
in  comparatively  early  limes  created  a 
remarkable  anomaly  in  the  then  law  of 
venue,  by  rendering  certain  actions  tran- 
sitory which  are  unque.stionably  in  their 
nature  local.  That  act,  the  words  of 
which  are  set  out,  ante,  p.  28,  gave  as- 
signees of  the  reversion  "  the  like  advan- 
tages" against  the  lessee,  and  the  lessee 
the  "  like  action  and  remedy"  again.st 
the  assignee  of  the  reversion,  as  the  les- 
sor and  lessee  had  before  that  act  res- 
pectively possessed  against  each  other. 
Now  the  remedy  of  these  latter  person- 
ages against  each  other  was  by  an  ac- 
tion founded  upon  the  contract  into 
which  they  had  reciprocally  entered  :  it 
was  theretbre  transitory  according  to 
the  maxim  debitum  et  contractus  sunt 
nullius  loci,  and  existed  independent 
of  the  relation  in  which  they  stood  to 
each  other  in  respect  of  their  several 
interests  in  the  same  land  :  whereas  the 
rights  of  the  assignee  of  the  reversion 
against  the  lessee,  and  of  the  lessee 
against  the  assignee  of  the  reversion, 
issue  entirely  out  of  that  relation,  and 
depend  on  no  mutual  contract,  so  that 
their  acticms  against  each  other  would 
have  been  local,  as  those  of  the  assignee 
of  the  term  against  the  lessor  and  his 
assigns,  and  of  the  lessor  and  his  assigns 
against  the  assignee  of  the  term  still 
are,  had  not  the  statute  intervened,  and 
by  the  use  of  the  word  like  rendered 
those  actions  transitory,  which  otherwise 
would  have  been  local.  The  result 
therefore  of  the  statute  of  Hen.  8,  coupl- 
ed with  the  common  law,  is,  that  the 
following  actions,  viz.  lessor  against  les- 
see, lessee  against  lessor,  assignee  of 
reversion  against  lessee,  lessee  against 
assignee   of  reversion,   are   transitory  ; 


674 


smith's    leading    cases. 


while  tlie  following',  viz.  lessor  nt^aiiist 
assi<jiiee  of  lessee,  assignee  of  lessee 
against  lessor,  assignee  of  lessee  against 
assignee  of  lessor,  and  assignee  of  lessor 
r:^.ifr-i  against  assignee  of  lessee,  *are 
I-  '^""'J  local.  See  Thursby  v.  Plant,  1 
Saund.  237 ;  Stevenson  v,  Lambard,  2 
East,  575;  Barker  v.  Damer,  Carth. 
182,  Salk.  80;  [Grogan  v.  Magan,  1 
Ale.  &  N.  360.] 

But  to  return  to  the  progress  of  the 
law  ofveiiue,  stat.  16  &.  17  Car.  2,  c.  8, 
(one  of  the  statutes  of  Jeofails)  enacted, 
"that  afterj  udgment  no  verdict  shall  be 
arrested  or  reversed,  for  that  there  is  no 
right  venue,  so  as  the  cause  of  action 
were  tried  by  a  jury  of  the  proper  county 
or  place  inhere  the  aclion  was  laid." 

Considerable  difficulty  arose  on  the 
cojislruction  of  this  statute,  many  law- 
yers contending  that  the  words  "the 
proper  county  or  place  where  the  action 
is  laid,"  must  be  understood  to  mean  the 
proper  county  or  place  where  the  issue 
arises,  so  tiiat  if  the  issue  arose  at  Dale 
in  Oxfirdshire,  and  the  venue  was  Sale 
in  the  same  county,  here  they  said  was 
a  case  wittiin  the  statute,  there  being  a 
right  county  but  a  wrong  venue.  How- 
ever it  was  at  length  decided  in  Craft  v. 
Boite,  1  Saund.  246,  b,  contrary  to  the 
opinion  of  Tvvysden,  J.,  and  was  settled 
by  many  subsequent  cases,  that  the 
words  "  lohere  the  action  rvas  laid," 
mean,  where  it  was  laid  in  the  declara- 
tion, not  in  any  subsequent  pleading. 
And  accordingly  it  lias  ever  since  been 
held  that  it  is  sufficient  if  the  jury  be 
summoned  from  the  venue  laid  in  the 
declaration.  This  venue  indeed  was  at 
tiiat  time  the  vill  or  hundred  where  the 
cause  of  action  was  stated  in  the  decla- 
ration to  have  arisen  :  and  anciently  the 
jury,  in  order  that  they  might  be  persons 
well  acquainted  with  tlie  controversy, 
were  summoned  out  of  the  very  hundred 
designated  for  the  venue.  Afterwards 
the  rule  was  relaxed,  and  in  the  reign 
of  Edward  the  Third  it  was  sufficient  if 
the  jury  contained  sia;  hundreders.  Gilb. 
C.  P,  c.  8.  This  number  was  in  Henry 
the  Sixth's  reign  reduced  to  four,  For- 
tescue  de  Laud.  c.  25;  it  was  after- 
wards, by  stat.  35  Hen.  8,  c.  6,  restored 
to  six ;  stat.  27  Eliz.  c.  6,  reduced  it  to 
two;  and  so  the  law  remained  till  long 
after  the  stat.  16  &  17  Car.  2,  c.  8.  after 
which  act  it  was  still  necessary  that  two 
at  least  of  the  jurors  should  be  summon- 
ed from  the  hundred  laid  in  the  declara- 
tion ;  and  if  there  were  not  so  many,  it 


was  cause  of  challenge.  But  this  last 
remnant  of  the  ancient  strictness  was 
abolished  by  4  &  5  Anne,  c.  6,  except 
so  (ar  as  concerned  actions  tbunded  upon 
penal  statutes,  to  which  the  aboliiion 
was  extended  by  24  G.  2,  c.  18.  So 
that  now  it  is  in  all  cases  sufficient  if 
the  jury  be  summoned  de  cnrpore  comi- 
talus,  i.  e.  from  the  body  of  the  county 
in  which  the  venue  is  laid  by  the  decla- 
ration. 

It  will,  however,  be  remembered  that 
the  statute  of  Charles  the  Second  did 
not  enact  positively  that  the  venue  in 
the  declaration  should  be  adopted,  but 
only  prevented  the  judgment  from  being 
arrested  or  reversed  in  consequence  of 
its  adoption.  So  that,  even  now,  if  a 
local  justification  were  to  be  stated  in 
the  plea,  there  seems  no  reason  why 
the  plaintiff  should  not,  if  he  pleased, 
sue  out  the  jury  process,  and  carry  the 
cause  down  to  trial  to  the  county  men- 
tioned in  the  plea,  as  at  common  law, 
before  the  statute  of  Charles  the  Second, 
he  must  have  done.  Nor  does  there 
seem  any  reason  to  prevent  the  defen- 
dant from  doing  so,  when  he  has  a  right 
to  try  the  cause  by  proviso;  so  that  a 
curious  question  might  arise,  if  the  plain- 
tiff were  to  carry  the  cause  down  for  trial 
to  the  county  named  in  the  declaration, 
and  the  defendant  to  that  laid  in  his  local 
justification. 

It  has  been  already  mentioned  that  in 
transitory  actions  the  judges  adopted 
various  modes  of  enforcing  the  policy  of 
the  statute  of  Richard  the  Second,  and 
obliging  the  plaintiff  to  lay  his  venue 
where  the  transaction  in  dispute  had 
really  occurred.  At  last,  they  had  re- 
course to  a  practice,  which  seems  to  have 
been  first  introduced  in  the  reign  of 
James  the  First,  (per  Holt,  C.  J.,  2  Salic. 
670;  the  first  case  in  the  books  is  Lord 
Gerrard  v.  Floyd,  1  Sid.  185,  E.,  16 
Car.  2,)  founded  upon  the  equity  of  that 
enactment,  by  which  they  held  them- 
selves authorised,  upon  affidavit  made 
that  the  cause  of  action,  if  any,  arose  in 
the  county  of  A.,  and  not  in  the  county 
of  B.,  in  which  the  venue  was  laid,  or 
elsewhere  out  of  the  county  of  A  ,  to 
change  the  venue  to  the  county  of  A., 
and  the  motion  for  so  doing  is  of  course, 
only  requiring  counsel's  signature.  K. 
H.  2  W.  4,  pi.  103.  But  as  it  would  be 
hard  to  conclude  the  plaintilF  on  the 
single  affidavit  of  the  defendant,  it  is 
further  held,  that  the  venue  may  r*oRni 
be  brought  back,  if  the  ^plaintiff  '^  '      -' 


M  O  S  T  Y  N     V.    F  A  B  R  I  G  A  S. 


675 


undertake  to  give  material  evidence 
in  the  county  in  which  the  action  is 
brought,  failing  which  he  must  be  non- 
suited, which  is  equivalent  to  an  abate- 
ment of  the  writ,  according  to  the 
statute.  Gilb.  C.  P.  90.  Santler  v. 
Heard,  2  Bl.  1032,  1033;  Bruckshaw  v. 
Hopkins,  Cowp.  410;  VVatkins  v.  Tow- 
ers, 2  T.  R.  275.  See  [on  the  question 
what  evidence  satisfies  such  an  under- 
taking] Curtis  V.  Drinkwater,  2  B.  & 
Ad.  Iti9;  Collins  v.  Jenkins,  4  Bing.  N. 
C.  225;  [Greenway  v.  Titchniarch,  7 
Mee.  &,  W.  221;  Brune  v.  Thompson, 
2  Q.  B.  789;  Clarke  v.  Dunsford,  3 
Dowl.  &.  L.  618;  GiUing  v.  Dugan,  1 
C.  B.  8.]  But  there  are  many  cases  of 
transitory  actions,  in  which  the  defend- 
ant cannot  by  possibility  make  the  above 
atKdavit,  in  order  to  procure  a  change  of 
venue.  He  cannot,  for  instance,  do  so 
where  the  cause  of  action  has  arisen 
partly  in  one  county  and  partly  in  an- 
other. Pinkney  v.  Collins,  1  T.  R.  571 ; 
Clissold  V.  Clissold,  1  T.  R.  647.  So 
too,  if  the  action  be  upon  a  specialty, 
because  the  cause  of  action  follows  the 
instrument,  which  falls  under  the  class 
of  bona  notabilia  wherever  it  happens 
to  be,  Foster  v.  Taylor,  1  T.  R.  781; 
Watt  v.  Daniel,  1  B.  &  P.  425 ;  or  where 
a  promissory  note,  or  bill  of  exchange, 
Smith  v.  Eikins,  1  Dowl.  426;  Dawson 
V.  Bowman,  3  Dowl.  161,  [is  the  cause 
of  action,  the  same  rule  is  enforced, 
seemingly  from  an  idea  that  those  instru- 
ments would,  like  specialties,  be  buna 
notabilia  wherever  they  chanced  to  be 
(see  Mondell  v.  Steele,  8  Mee.  &  VV. 
641.)  It  was  applied  also  to  the  case  of 
a]  charter-party,  Morrice  v.  Hurry,  7 
Taunt.  306;  or  award,  Stanway  v.  His- 
lop,  3  B.  &  C.  9;  [Martin  v.  Daws,  11 
JVlee.  &  VV.  734],  specially  declared  on, 
the  reason  for  which  was  said  to  be,  that 
the  written  instrument  declared  on  was 
the  cause  of  action;  and  that  as  con- 
tractus est  nullius  loci,  the  cause  of 
action  cannot  be  said  to  arise  more  in 
one  county  than  another;  but  this 
principle,  which,  if  universally  true, 
would  prevent  the  ve7iue  from  being 
changed  on  the  common  rule  in  any 
case  where  the  declaration  is  special  on 
a  written  instrument,  (see  Morrice  v. 
Hurry,  7  Taunt.  306,)  has,  however, 
been  in  some  instances  departed  from, 
see  Roberts  v.  Wright,  1  Tyrw.  532; 
Watkins  v.  Towers,  2  T.  R.  275;  Kirk 
V.  Broad,  Say.  7;  Howarth  v.  VVillett, 
2  Stra.  1180,  [even  prior  to  the  case  of 


Mondel  v.  Steele,  8  Mee.  &  W.  611, 
where  the  Court  of  Exchequer,  after  an 
elaborate  discussion  of  the  subject,  held 
that,  at  all  events,  the  venue  might  be 
changed  on  the  common  rule  in  an  ac- 
tion upon  a  contract  to  be  performed  in 
a  particular  place,  and  for  the  breach  of 
which  the  cause  of  action  arose  wholly 
in  one  county;  and  they  expressed  an 
opinion  that  there  is  no  rule  against 
changing  the  venue  in  actions  on  vvritien 
instruments  not  under  seul,  other  than 
bills  of  exchange  and  promissory  notes. 
That  opinion,  however,  though  acted  on 
in  Nash  v.  Breeze,  Exch.,  13th  Jan. 
1843,  12  L  J.  162,  may  perhaps  be 
considered  as  subject  to  the  limitation 
pointed  out  by  the  subsequent  decision 
in  Martin  v.  Daws,  11  Mee.  &  W.  734, 
to  cases  in  which  there  is  no  express 
authority  or  settled  practice  to  the  con- 
trary, as  there  is  in  that  of  an  action 
founded  op  an  award.  The  general  rule 
laid  in  Mondel  v.  Steele,  governs  all 
cases  not  so  preoccupied];  and  wher- 
ever the  written  contract  is  not  the  cause 
of  action  declared  on,  it  appears  to  be 
no  objection  to  changing  the  venue,  that 
probably  a  written  instrument  will  be 
given  inevidence  to  support  the  declara- 
tion. See  Picard  v.  Featherstone,  4 
Bing.  39.  And  even  in  the  othor  cases 
above  mentioned,  in  which  the  Court 
reflises  to  change  the  venue  upon  the 
common  affidavit,  it  will  do  so  upon  a 
special  one  showing  that  the  alteration 
is  for  the  interests  of  justice;  as,  for 
instance,  where  all  the  witnesses  are 
resident  in  the  county  into  which  it  is 
proposed  to  change  the  venue ;  or  an 
impartial  trial  cannot  be  had  in  the 
county  in  which  it  is  originally  laid. 
See  Tidd's  Prac.  605.  And  there  is 
this  difference  between  the  common  and 
special  application  to  change  the  venue, 
viz.,  that  the  former  cannot  be  made  in 
any  of  the  courts  after  plea  pleaded  ;  see 
Tidd,  608;  nor  in  the  Exchequer  after 
an  order  for  time  to  plead  "  on  the  usual 
termsy  Notts  v.  Curtis,  2  Tyrw.  307. 
Whereas,  if  the  application  be  on  special 
grounds,  it  must  not  be  made  till  issue 
joined  ;  or,  at  least,  not  till  after  a  plea 
clearly  showing  what  will  be  the  nature 
of  the  issue  has  been  pleaded.  Dowler 
V.  Collis,  4  Mee.  &■  VV.  .531;  since  the 
Court  cannot  till  then  know  what  is  the 
question  intended  to  be  tried,  and,  of 
course,  can  form  no  opinion  on  the  pro- 
priety of  changing  the  place  of  trial. 
Tidd,  014.     Rohrs  v.  Sessions,  4  Tyrw. 


676 


SMITHS  LEADING  CASES. 


275;  Cottpril  v.  Dixon,  3  Tyrw.  705; 
YoDfle  V.  Yoiide,  4  Dowl.  32. 

The  above  rules,  however,  are  only 
to  be  taken  to  refer  to  transitory  actions  ; 
for  uliere  the  venue  was  local  the  courts 
did  not  consider  themselves  empowered 
to  change  it,  unless  by  consent  of  both 
parties,  or  on  a  suggestion  thai  a  fiiir 
and  impartial  trial  could  not  be  had  in 
the  county  where  the  venue  was  laid. 
See  Tidd,  G0.5.  But  now,  by  3  &  4  W. 
4,  c.  42,  s.  23,  reciting-  "  thut  unneces- 
sary delay  and  expense  is  sometimes  oc- 
casioned by  the  trial  of  local  actions  in 
the  county  where  the  cause  of  action 
lias  arisen,"  it  is  enacted,  "that  in  any 
action  depending  in  any  of  the  said  supe- 
rior courts,  the  venue  of  which  is,  by 
law,  local,  the  court  in  which  such  ac- 
tion shall  be  depending,  or  a  judge  of 
any  of  the  said  courts,  may,  on  the  ap- 
plication of  either  parly,  order  the  issue 
to  be  tried,  or  a  writ  of  inquiry  to  be 
executed,  in  any  other  county  or  place 
than  that  in  which  the  venue  is  laid  ; 
and  for  tliat  purpose  any  such  court  or 
judge  may  order  a  suggestion  to  be 
enteied  upon  tlie  record,  that  the  trial 
may  be  more  conveniently  had  or  a  writ 
of  inquiry  executed  in  the  county  or 
place  where  the  same  is  onlered  to  lake 
place."  The  application  under  this  sec- 
tion must  be  made  after  issue  joined. 
Bell  V.  Harrison,  4  Uowl.  lyl.  •• 

P^.,p-,-|  *\Vith  respect  to  transitory 
L  ■  J  causes  of  actions  which  have  ac- 
crued abroad,  like  that  in  the  principal 
case  of  Fabrigas  v.  Mostyn,  it  must  be 
remarked  that  although  the  courts  of 
this  country  will  entertain  them,  still 
they  will,  in  adjudicating  on  them,  be 
governed  by  the  laws  of  tlie  country  in 
which  they  arose.  The  distinction  laid 
down  in  all  cases  of  this  description  is 
between  the  cause  of  action,  which  is  to 
bo  judged  of  with  relercnce  to  the  law 
(if  the  country  where  it  originated,  and 
the  mode  of  procedure,  which  must  be 
adopted  as  it  happens  to  exist  in  the 
country  where  the  action  is  brought. 
Thus,  in  Triinby  v.  Vignier,  1  Bmg.  N. 
C.  151,  it  v;;is  held  that  as,  by  the  law 
of  France,  an  indorsement  in  blank  does 
not  transfer  any  property  in  a  bill  of  ex- 
change, the  holder  of  a  bill  drawn  in 
France,  and  there  indorsed  in  blank, 
cannot  recover  upon  it  in  this  country 
against  the  acceptor.  "The  rule,"  said 
Tindal,  C.  J.,  delivering  judgment, 
"which  .-ipplies  to  the  case  of  contracts 
made  in  one  country,  and   put  in  suit  in 


the  courts  of  law  of  another  country,  ap- 
pears to  be  this,  that  the  interpretation 
of  the  contract  must  be  governed  by  the 
law  of  the  country  where  ihe  contract 
was  made:  the  mode  of  suing,  and  the 
time  within  which  the  action  must  be 
brought,  must  be  governed  by  the  law 
of  the  country  where  the  action  is 
brought.  This  distinction  was  acted  on 
in  The  British  Linen  Company  v.  Drum- 
mond,  10  B.  &  C.  903,  where  it  was 
held  that  the  English  statute  of  limita- 
tions was  a  good  plea  to  an  action  in  a 
Scotch  contract,  which  might  in  Scot- 
land have  been  put  in  suit  at  any  time 
within  forty  years;  in  De  la  Vega  v. 
Vianna,  1  B.  &  Ad.  284,  where  the  de- 
fendant was  allowed  to  be  arrested  for  a 
debt  contracted  in  Portugal,  and  for 
which  he  could  not  have  been  arrested 
there  ;  in  Alivon  and  another,  provisional 
syndics  of  the  estate  of  Beauvain,  a 
bankrupt  v.  Furnival,  4  Tyrw.  751, 
where  the  Court  of  Exchequer  acted  on 
the  French  law  of  bankruptcy;  and  in 
that  of  Hubt'r  v.  Steiner,  2  Bmg.  N.  C. 
202,  in  which  the  whole  difficulty  was 
in  ascertaining  whether  liie  rule  of 
foreign  law  applied  ad  valorem  contrac- 
tus or  ad  nodum  actionls  instltuendcp,. 
It  was  an  action  on  a  promissory  note; 
and  the  question  was,  whether  the 
French  law  of  prescription  formed  a  de- 
fence thereto,  the  action  being  brought 
within  the  English  period  of  limitation. 
In  behalf  of  the  defendant  it  was  con- 
tended that  laws  for  the  limitation  of 
suits  were  of  two  kinds,  those  which 
bar  the  remedy,  and  those  which  extin- 
guish the  debt ;  and  the  following  pas- 
sage was  cited  from  Story's  Commen-  • 
taries  on  the  Conflict  of  Laws,  p.  4"i7 : — 
"  Where  the  statutes  of  limitation  of  a 
particular  country  not  only  extinguish 
the  riirht  of  action,  but  the  claim  or  title 
\[se\\'  ipso  facto,  and  declare  it  a  nullity 
after  tJie  lapse  of  the  prescribed  period, 
in  such  a  case  the  statute  may  be  set  up, 
in  any  other  country  to  which  the  parties 
remove,  by  way  of  extinguishment." 
"'I'his  distinction,"  said  Tindal,  C.  J., 
delivering  judgment,  "  when  taken  with 
the  qualification  annexed  to  it  by  the 
author  himself,  appears  to  be  well 
founded."  That  qualification  is,  "  that 
the  parties  are  resident  within  the  juris- 
diction during  all  that  period,  so  that  it 
has  actually  operated  upon  the  case ;" 
and,  with  such  restriction,  it  does  indeed 
appear  but  reasonable  that  the  part  of 
the  lex  loci  contractus,  which  declares 


M  O  S  T  y  N     V.     F  A  B  R  I  «  A  S. 


677 


the  contract  to  bo  absolutely  voitl  at  a 
certain  limited  time,  willioiit  any  inter- 
vening suit,  siiouki  be  equally  re;rarded 
in  the  foreign  country,  as  the  part  of 
the  lex  loci  contractus,  which  gives  life 
to  and  regulates  the  construction  of  the 
coiitract;  both  parts  go  equally  ad 
valorem  contractus,  both  ad  dccisionem 
litis."  However,  the  Court,  upon  ex- 
amination of  the  French  law  of  pre- 
scription, thought  that  its  effect  was  not 
to  extinguish  the  right,  but,  as  in  Eng- 
land, only  to  bar  the  remedy,  and  there- 
fore that  the  defence  was  in  that  case 
unavailable. 

Supposing  the  law  of  a  foreign  coun- 
try to  be,  that  a  contract  is,  after  a  cer- 
tam  time,  to  be  deemed  absolutely  extin- 
guished, it  seems  not  quite  reasonable  to 
say  that  the  removal  of  the  parlies  out  of 
the  jurisdiction,  while  that  time  is  run- 
ning, should  authorise  the  courts  of  this 
country  to  consider  it  in   esse  after  the 
period  prefixed.     The  authorities  e?tab- 
lish,  that  the  law  of  the  country  where 
the  contract  is  made  must  govern  it,  and 
must  be  looked  on  as  impliedly  incorpo- 
r=i-"^rm  r^^^^'  ^vi'^h  it.     Now,  if*the  con- 
'-       ^-'  tract  had  contained  a  proviso  that 
it  should   be  absolutely  void,  if  not  en- 
forced within  a  cer'ain  time,  no  doubt  the 
English  courts  would  hold   it  void  after 
the  expiration  of  that  time      But  what 
difference  can  it  make  that  such  proviso 
is   implied  from   the  law  of  the  country 
where  the  contract  was  made,  instead  of 
being  expressed  in  terms!     Is  it  not  in 
both  cases  equally  part  of  the  contract? 
If,  indeed,  the  rule  of  the  foreign  law  be, 
that  the  contract  shall,  after  the  lapse  of 
a   certain    time,  become  void,  provided 
that  the  parlies  to  it  continue  to  reside 
all  that  lime  in  the  s;imo  country,  the 
arrival  of  the  period  prefixed  or  its  avoid- 
ance will  depend  on  the  continffency  of 
their  abstaining   from  absenting    them- 
selves; and   if  they   leave  the   country, 
never  will  arrive  at  all  ;  and  this  is,  per- 
haps, what  Judge  Story  intends   by  the 
words    "that    the    parties  are    resident 
within   the  jurisdiction  during  all  that 
period,  so  that  il  has  acluully  operated 
upon  the  cusc'^     For   if  the   law   be  so 
framed  as  to  operate  vp<m  the  case  with- 
out such  residence,  the  qualification  ap- 
pears to  be  inapplicable. 

[Another  application  of  the  rule  that 
procedure  is  to  be  governed  by  llie  law 
of  the  country  in  which  the  action  is 
brought,  may  be  f  luiid  in  the  juiiginent 
of  the  Court  of  Exchequer,  in  the  case  of 


the  General  Steam  Naviiration  Company 
V.  Guillen,  11  Mec.  &  W.  877.  The  ac- 
tion was  on  the  case  for  running  down  a 
ship  at  sea  ;  one  of  thedefendent's  pleas 
stated  that  he  was   a   Frenchman,  and 
that  the  injury  complained  of  was  com- 
mitted on  the  high  seas,  out  of  the  juris- 
diction of  the  Queen  of  England,  not  by 
the  defendant  personally,  but  by  the  mas- 
ter of  a  French  vessel   m  the  employ  of 
a  French  company,  of  which  the  defen- 
dant was  a  shareholder  and  actingdirec- 
tor;  that  the  defendant  never  was  pos- 
sessed of,   or   interested   in,    the  vessel 
which  did  the  injury,  otherwise  than  as 
such  shareholder,  and  that  by  the  law  of 
France  he  was  not  responsible  for  or  lia- 
ble to  be  sued  or  impleaded  individually, 
or  in   his  own   name  or  person   in   any 
manner  ^whatsoever,  but  that  r^ogq^  i 
by     that    law    the     company  L   *^   '     J 
alone,  by  their  style  or  title,  or  the  mas- 
ter or  person  in  command   for  the  time 
being  of  the  vessel,  was  responsible  for 
and  liable  to  be  sued  or  impleaded,  and 
that  the  defendant  was  not  the  master  or 
person   in  command.     Upon  the   gram- 
matical   construction  of  that  plea,   the 
Court    of    Exchequer   were   divided    in 
opinion,  but  they  agreed  that  if  the  plea 
were  taken  (according  to  the  construc- 
tion put  upon  it  by  Parke,  B,,  and  Gur- 
ney,  B.)  to  aver  that  by  the  law  of  France 
the  defendant  was   "not  liable  for  the 
acts  of  the  master ;  but  that  a  body  estab- 
lished by  the  French  law,  and  analogous 
to  an  Euglii-h  corjioration,  were  the  pro- 
prietors of  the   vessel,  and  alone  liable 
for  the  acts  of  the  master,  who  was  their 
servant,  and  not  the  servant  of  the  indi- 
viduals compo.-ing  that  body  ;"  tlieie  was 
(as   they  were   all    slronoly    inclined   to 
think)  a  good  delisnce  to  the  action;  but 
that  if,  on  the  other  hand,  the  p'ea  were 
taken  (according   to   the  view   of  Lord 
Ahinger    and    Ahierson,    B)    to    mean, 
"that  in  liie  French  courts  the  mode  of 
proceeding  would  be   to  sue  the  detcn- 
dtint  jointly  with  the  other  fhareholders 
under    the    name  of  their  association;'' 
then  that  il  was  bad  on  the  ground  that 
"the   forms   of  remedies  and    modes  of 
proceeding  are  regulated  solely    by   ihc 
law  of  the  plnce  w^here  the  action   is  in- 
stituted, the  lex  fori ;  and  it  is  no  objec- 
lioiiloasuil  instituted    in   proper   form 
here,  that  il  would  have  been  mftituied 
in  a  ditlerenl  form  in  liie  court  of  the 
country  where  the  cause  of  action  arose, 
or  to  which  the  defendant  belongs." 
Ill  Lopez  V.  Burslem,  4  JMoore  (Privy 


678 


SMITHS     LEADING     CASES. 


Council),  300,  the  same  law  was  laid 
down  with  reference  to  the  limitation  of 
time  prescribed  for  bringing'  an  appeal 
after  condemnation  by  a  vice-admiralty 
court  under  the  Slave  Abolition  Act,  5 
G.  4,  c.  113.  It  was  contended  in  that 
case,  that  the  owners  of  the  cargo  were 
not  bound  by  the  enactment,  being 
liireigners ;  but  the  Court,  admitting 
that  the  British  parliament  certainly  has 
no  general  power  to  legislate  for  foreign- 
ers out  of  the  dominions  and  beyond  the 
jurisdiction  of  the  British  Crown,  declar- 
ed that  a  British  statute  may  fix  a  time 
within  which  application  must  be  made 
for  redress  to  the  tribunals  of  the  empire  : 
"  on  matter  of  procedure,"  they  said,  "  all 
mankind,  whether  aliens  or  liege  sub- 
jects, plaintiffs  or  defendants,  appellants 
or  respondents,  are  bound  by  the  law  of 
the  forum,"  and,  '■'if  a  Imo  were  made 
upon  this  subject,  loorking  oppression 
and  injustice  to  the  subjects  of  a  fo- 
reign state,  that  state  might  make  repre- 
sentations and  remonstrances  against  this 
law  to  our  government;  but  while  it 
remains  in  force,  judges  have  no  choice 
but  to  give  it  effect."  See  further, 
lleriz  V.  Riera,  11  Sim.  318;  Cooper  v. 
r*''ra7i  *Lord  Walden-rave,  2  Beav. 
l.,b»Ul  2S2;  Beauce""  V.  Muter,  5 
Moore  (Privy  Council),  69;  Ferguson 
V.  Fyffe,  8  CI.  &  Fin.  121  ;  Leslie  v. 
Biiillie,  2  You.  &Coll.,  C.  C.  91.] 

In  Brown  v.  Thornton,  6  Ad.  &  Ell. 
1S5,  a  charter-party  was  entered  into  at 
Batavia.  According  to  the  law  prevailing 
there,  such  instruments  are  entered  in  a 
public  book,  which  is  the  only  evidence 
of  their  contents  in  that  colony;  a  public 
notary  makes  two  copies  from  the  book, 
and  deliversone  to  each  party,  and  these 
are  evidence  of  the  original  in  all  Dutch 
courts  except  Batavia.  Held,  that  such 
copies  are  not  evidence  of  the  original  in 
this  country.  The  courts  here  will  not 
adopt  rules  of  evidence  from  foreign 
courts.  Appleton  v.  Lord  Braybrooke, 
2  Stark.  6,  G  M.  &.  S.  34  ;  Black  v.  Lord 
Braybrooke,  2  Stark.  7,  6  M.  &  S.  39. 
\\n  the  case  of  Tulloch  v.  Hartley,  1 
You.  &  Coll.,  C.  C.  114,  the  Vice  Chan- 
cellor, Knight  Bruce  is  supposed  to  have 
departed  from  tiiis  rule,  on  the  ground 
that  the  property  in  litigation  was  real 
property;  but  iiis  honour  does  not  appear 
to  liave  intended  to  lay  down  any  excep- 
tion to  the  rule  so  wide  as  the  alleged 
ground  of  his  decision  n)ight  suggest. 

'J  he  dictum  attributed  to  Lord  Mans- 


field (in  Mostyn  v.  Fabrigas,  ante,  353), 
viz.,  "The  governor  is  in  the  nature  of 
a  viceroy,  and  therefore  locally  during 
his  govoriUTient  no  civil  or  criminal  ac- 
tion will  lie  against  him:  the  reason  is, 
because  upon  process  he  would  be  sub- 
ject to  imprisonment,"  was  dissented 
from  by  the  Judicial  Committee  of  the 
Privy  Council  in  the  case  of  Hill  v. 
Bigge,  3  Moore  (Privy  Council),  40"); 
and  Lord  Brougham  suggested,  that  the 
expressions  used  by  Lord  Mansfied  may 
have  been  somewhat  altered  in  the  re- 
port. In  Hill  V.  Bigge,  to  an  action  of 
debt  brought  in  a  colonial  court  against 
the  Governor,  a  plea  stating  his  vice- 
regal character  was  held  to  afford  no  de- 
fence ;  but  Lord  Brougham,  adverting  to 
the  inconvenience  suggested  by  Lord 
Mansfield,  said  in  giving  the  judgment 
of  the  Court,  "It  is  not  at  all  necessary 
that  in  holding  a  Governor  liable  to  be 
sued  we  should  hold  his  person  liable  to 
arrest  while  on  service;  that  is,  while 
resident  in  his  government.  It  is  not 
even  necessary  that  we  should  meet  the 
suggestion  of  his  goods  in  all  circum- 
stances being  liable  to  be  taken  in  execu- 
tion— though  that  is  liable  to  a  different 
consideration."  The  liability  of  sove- 
reign princes  themselves  to  be  sued  in 
the!  courts  of  foreign  countries,  has  lately 
undergone  a  full  discussion  in  the  very 
remarkable  case  of  the  Duke  of  Bruns- 
wick v.  The  King  of  Hanover,  6  Beav. 
1,  where  the  delendant  was  at  once  a 
king  of  one  country  and  a  subject  of  that 
in  which  he  was  sued.  Lord  Langdale, 
M.  R.,  in  a  judgment  which  exhausts 
the  subject,  stated  his  opinion  :  1.  That 
the  king  of  Hanover  was  "exempt  from 
all  *liability  of  being  sued  in  r=f:.i(--^ 
the  courts  of  this  country  for  '- 
any  acts  done  by  him  as  king  of  Han- 
over, or  in  his  character  of  sovereign 
prince;"  but  that,  "being  a  subject  of 
the  queen,"  he  was  "liable  to  be  sued 
in  the  courts  of  this  country  in  respect 
of  any  acts  and  transactions  done  by  him, 
or  in  which  he  may  have  been  engaged, 
as  such  subject."  2.  That  "in  respect 
of  any  act  done  out  of  this  realm,  or  any 
act  as  to  which  it  may  be  doubtful  whe- 
ther it  ought  to  be  attributed  to  the  cha- 
racter of  sovereign  or  to  the  character 
of  suliject,  it  ought  to  be  presumed  to  be 
attributable  rather  to  the  character  of 
sovereign  than  to  the  character  of  sub- 
ject." 3.  Tliat  in  a  suit  in  the  Court  of 
Chancery  against  a  sovereign  prince  who 


M  O  S  T  Y  N     V.     F  A  B  R  I  G  A  S. 


679 


is  also  a  subject,  "the  bill  oug-ht  upon 
the  face  of  it  to  shew  that  the  sub- 
ject-matter of  it  coHsiitutes  a  case  in 
which  a  sovcreigfii  prince  is  liable  to  be 
sued  as  a  subject."  And  the  decree  of 
the  Master  of  the  Rolls,  allowing  the  de- 
murrer in  that  case  to  a  bill  seeking  an 
account  against  the  king  of  Hanover  as 
guardian  of  the  plaintiff,  to  which  office 
the  king,  upon  his  attaining  the  throne 
of  Hanover,  had  been  appointed  under 
an  arrangement  springing  out  of  the 
deposition  of  the  duke  pursuant  to  a 
decree  of  the  Germanic  Diet  in  1830, 
was  affirmed  by  the  House  of  Lords  on 
appeal  (31  July,  1848),  on  the  ground 
that  a  sovereign  is  not  liable  to  be  sued 
in  respect  of  matters  of  state,  {Tlie 
Duke  of  Brunswick  v.  The  King  of 
Hanover,  2  House  of  Lords'  Cases,  1, 
17.}  In  Alunden  v.  The  Duke  of 
Brunswick,  4  C.  B.  321,  it  was  con- 
sidered to  be  no  plea  to  an  action  on  an 
annuity  deed,  that  the  defendant  was  a 
sovereign  prince  at  the  time  it  was 
made,  without  showing  either  that  it 
was  an  act  of  state,  or  that  the  defend- 


ant retained  his  sovereign  character  at 
the  time  of  action  brought. 

On  the  same  principle  which  exempts 
sovereigns  from  liability  to  be  sued  in 
respect  of  acts  of  state,  seems  to  rest 
the  immunity  of  a  soldier  against  actions 
by  foreigners  for  acts  done  by  him  in  a 
hostile  manner,  in  the  name  of  the  go- 
vernment to  which  he  belongs,  provided 
those  acts  be  either  authorised  by  an  ac- 
tual command,  or  ratified  by  a  subse- 
quent approval  of  the  government:  to 
such  acts  the  maxim  respondeat  supe- 
rior seems  toap])ly  in  its  strictest  sense, 
and  for  any  injury  inflicted  by  them,  if 
redress  be  denied  by  the  government,) 
there  is  no  remedy  but  an  appeal  to 
arms.  See  Vin.  Abr.  Pra;rogative  (L. 
a.);  Elphinstone  v.  Bedreechund,  1 
Knapp  (Privy  Council),  316;  Dobree  v. 
Napier,  2  N.  C.  731 ;  Buron  v.  Denman, 

2  Exch.  167. 

As  to  the  liability  of  judges  for  judi- 
cial acts,  see  further,  Calderv.  Hackett, 

3  Moore  (Privy  Council),  28;  Graham 
V.  Lafitte,  ibid.  382.] 


Independently  of  some  legal  action,  the  jurisdiction  of  a  common  law 
court,  could  never  extend  to  a  cause  of  action,  accruing  beyond  the  limits 
assigned  to  the  running  of  its  writs.  This  will  be  suiSciently  evident,  when 
we  reflect  that  while  the  common  law  required,  that  the  truth  of  every  mate- 
rial fact  traversed,  should  be  tried  by  a  jury  of  the  place  where  it  is  alleged 
to  have  happened,  the  rules  of  pleading  equally  demand,  that  such  an  alle- 
gation of  place,  should  accompany  every  material  averment.  In  order  to 
obviate  this  diflSculty,  the  English  courts  permitted  the  plaintiflF,  in  certain 
actions  which  were  regarded  as  transitory  in  their  character,  to  allege  a 
fictitious  place,  as  the  one  where  the  cause  of  action  accrued,  and  obliged 
the  defendant,  unless  when  justice  might  be  promoted  through  a  change,  to 
follow  the  place  thus  assigned,  through  all  succeeding  averments  of  a  simi- 
lar nature.  In  this  way,  the  courts  obtained  the  power  of  considering  tran- 
sitory actions,  even  where  their  cause  happened  beyond  the  limits  of  the 
kingdom.  But  when  the  action  was  local  in  its  nature,  it  still  remained 
necessary  to  aver  all  material  facts  as  happening  where  they  actually  oc- 
curred ;  and  thus  no  venire  could  be  issued,  and  no  trial  had,  when  the 
venue  thus  laid,  was  beyond  the  reach  of  the  process  of  the  court.  In  this 
manner,  jurisdiction  was  acquired  over  all  transitory  actions,  wherever  the 
cause  which  gave  them  birth  happened  ;  while  no  cognizance  could  be  taken 
of  local  actions,  save  when  a  jury  of  the  county  could  be  summoned  to 
try  them. 

The  same  rule  is  recognised  and  applied  by  the  courts  of  this  country ; 


G80  smith's    leading    cases. 

Hale  V.  Lawrence,  1  Zabriskio,  714.  Thus,  ia  Ilcnwood  v.  Chocseman,  3  S. 
&.  11  501,  an  action  was  sustained  in  Pennsylvania,  for  the  use  and  occupa- 
tion of  land  in  New  Jersey,  on  the  ground  that  as  the  action  was  founded  on 
contract,  it  was  transitory  in  its  nature,  although  the  contract  related  to  real 
estate.  It  was,  however,  admitted,  that  when  the  cause  of  action  is  transi- 
tory in  its  own  nature,  it  may  be  made  local  by  the  form  of  the  remedy,  and 
that  no  recovery  can  be  bad  for  rent,  in  debt  on  the  reddendum,  out  of  the 
county  in  which  the  lands  are  situated,  because  that  form  of  action  is  local, 
and  the  venue  must  be  laid  according  to  the  reality.  In  like  manner,  an 
action  of  covenant  by  the  assignee  of  a  reversion  under  the  statute  32  Iltniry 
8,  is  transitory,  and  the  venue  may  be  laid  at  the  will  of  the  pleader;  but 
covenant  against  an  assignee  of  the  land  is  local  and  cannot  be  sustained 
unless  the  land  is  within  the  jurisdiction  of  the  court,  in  which  the  action  is 
brought.  "When,  however,  the  cause  of  action,  and  the  action  itself  arc 
transitory  in  their  character,  the  plaintiff  may  depart  as  wndely  from  the 
fact  in  laying  the  venue,  as  he  thinks  fit,  and  is  necessary,  to  give  the  court 
in  which  he  sues  jurisdiction,  without  causing  a  discrepancy  between 
the  allegations  in  the  declaration,  and  the  proof.  The  usual  way  of  doing 
this  is  by  stating  the  injury  complained  of,  as  occurring  at  the  place  where 
it  really  happened,  and  then  laying  this  place  with  a  videlicet,  as  within  the 
jurisdiction  of  the  court;  Wills  v.  Church,  5  S.  &  R.  190.  But  in  Lister 
V.  Wright,  2  Hill,  320,  words  spoken  in  Canada  were  admitted  in  evidence, 
under  a  venue  laid  absolutely  in  New  York,  and  not  with  a  videlicet.  The 
same  point  was  decided  in  McKenna  v.  Fisk,  1  Howard,  241.  But  the  fic- 
tion by  which  matters  happening  out  of  the  jurisdiction,  are  laid  as  happen- 
ing within  it,  cannot  be  used  even  in  transitory  actions,  to  give  a  court 
jurisdiction  in  matters  which  are  essentially  beyond  its  cognizance,  and,  a 
suit  cannot  be  maintained  against  a  foreign  executor  or  administrator,  by  the 
aid  of  an  allegation,  that  the  source  whence  he  derives  his  authority,  is  in 
the  state,  when  it  is  really  without  it ;  Vermilye  v.  Beatty,  6  Barbour, 
429. 

Trespass  for  injuries  to  the  land  is  local,  and  cannot  be  brouglit  out  of  the 
jurisdiction  where  the  land  is  situated;  Boach  v.  Damron,  2  Humphreys, 
425;  Champion  v.  Doughty,  3  Harrison,  3;  Hern  v.  Rogers,  6  Blackford, 
559.  Thus,  Lord  Kenyon  decided,  in  Doulson  v.  Mathews,  4  Term, 
503,  that  an  action  could  not  be  maintained  against  the  defendant  in  Eng- 
land, for  an  injury  done  to  the  plaintiff's  dwelling-house  in  Canada.  The 
law  was  held  the  same  way  in  Livingston  v.  Jefferson,  1  Brock.  203,  where 
it  was  decided,  that  no  recovery  could  be  had  in  Virginia,  for  a  trespass  to 
real  estate  at  New  Orleans,  and  that  the  difficulty  or  uncertainty  of  the 
plaintiff's  remedy  in  one  forum,  could  not  confer  jurisdiction  upon  another. 
This  decision  was  followed  by  the  Supreme  Court,  and  Court  of  Errors,  of 
New  York,  in  Watts  v.  Kenney,  23  Wend.  484;  6  Hill,  82;  who  held  that 
case  for  injuries  to  the  really  obeyed  the  same  rule  as  trespass,  and  could 
not  be  sustained  in  New  York  for  an  injury  to  aright  of  way  in  New  Jersey. 
But  as  the  injury  complained  of  in  all  these  instances  was  committed  within 
the  jurisdiction  of  other  and  regular  tribunals,  they  cannot  be  regarded  as 
overruling  the  suggestion  of  Lord  Mansfield,  in  the  principal  case,  that 
where  a  wrong  is  done  to  real  property,   in  a  country  which  possesses  no 


M  0  S  T  Y  N    V.     F  A  B  R  I  G  A  S.  681 

established  means  of  judicature,  it  may  be  regarded  as  transitory,  and  re- 
dressed by  any  court  -which  has  jurisdiction  over  the  parties. 

Where  a  mistake  committed  in  hiying  the  venue,  appears  on  the  face  of  the 
dechiration,  it  will  be  a  good  cause  of  demurrer ;  and  where  it  does  not,  it  may 
be  pleaded  in  bar  of  the  action,  or  taken  advantage  of  at  the  trial,  by  a  mo- 
tion for  a  non-suit,  on  the  ground  of  variance;  lloach  v.  Damron,  2  Hum- 
phreys, 420;  Black  v.  Freeman,  1  Shcpley,  130;  Brackett  v.  Alvord,  5 
Cowen,  18;  Eightmyer  v.  Eaybold,  12  Wend.  51;  Chapman  v.  Wilbur,  6 
Hill,  475. 

Notwithstanding  the  doubt  thrown  out  by  Lord  Mansfipxd,  in  the  prin- 
cipal case,  it  seems  to  be  well  settled,  that  a  recovery  may  be  had  in  a  tran- 
sitory action  for  a  tort  committed  not  only  beyond  the  jurisdiction  of  the 
court  where  the  suit  is  brought,  but  within  that  of  another  state  or  country, 
and  although  one  or  both  the  parties  may  be  aliens;  Barrill  v.  Benjamin, 
15  Mass.  355;  Smith  v.  Bull,  17  Wend.  325;  Hale  v.  Lawrence.  And 
it  necessarily  follows,  that  such  an  action  may  be  sustained,  where  the 
•wrong  complained  of,  took  place  on  the  high  seas,  where  the  courts  of  all 
nations  have  an  equal  claim  to  jurisdiction;  Hallett  v.  Novion,  14  Johnson, 
273;  16  id.  327;  Percival  v.  Hickey,  18  id.  257;  Johnston  v.  Dalton,  5 
Cowen,  543.  Thus,  in  Percival  v.  Hickey,  an  action  was  sustained  against 
the  captain  of  an  English  man-of-war,  for  running  down  the  ship  of  the 
plaintiffs,  although  the  injury  was  committed  while  exercising  the  belligerent 
right  of  search.  But  redress  for  torts  committed  beyond  the  actual  juris- 
diction of  a  court,  is,  notwithstanding,  a  matter  of  sound  discretion,  and  will  be 
refused,  when  it  cannot  be  afforded  without  inconvenient  or  injurious  conse- 
quences. Thus,  it  was  decided  in  Gardner  y.  Thomas,  14  Johnson,  136, 
that  no  cognisance  would  be  taken  of  a  wrong  committed  on  board  a  foreign 
vessel  on  the  high  seas,  where  the  parties  were  foreigners,  and  had  shipped 
on  board  the  vessel  for  a  voyage  which  was  not  yet  terminated.  But  in  the 
subsequent  case  of  Johnson  v.  Dalton,  it  was  decided,  that  where  the  con- 
tract under  which  the  plaintiff  shipped  on  board  the  vessel,  has  been  dis- 
solved by  the  tortious  conduct  of  the  master,  the  latter  may  be  made 
answerable  in  trespass  in  the  Courts  of  New  York,  for  an  injury  done 
beyond  their  jurisdiction  and  on  the  high  seas. 

There  is  another  and  more  general  exception,  to  the  right  of  common  law 
tribunals  to  take  cognizance  of  torts  committed  on  the  high  seas.  If  the 
cause  of  action  be  a  question  of  prize,  there  is  no  common  law  jurisdiction; 
Penhallow  v.  Doane,  1  Dallas,  220.  In  order,  however,  to  bring  a  trespass 
committed  at  sea,  within  this  exception,  there  must  be  an  express  design  to 
capture  as  prize.  The  mere  fact  of  pursuing  a  vessel  under  the  impression 
that  she  belongs  to  a  belligerent,  without  an  intention  of  capture  applicable 
to  her  real  character  as  a  neutral,  will  not  render  her  destruction  by  a  collision 
occurring  through  the  negligence  of  the  pursuing  vessel,  a  question  of  prize, 
or  a  matter  of  exclusive  admiralty  jurisdiction;  Percival  v.  Hickey,  18  Johns. 
257.  But  where  a  real  intention  to  capture  as  prize  exists,  formed  with 
full  reference  to  the  prima  facie  character  of  the  vessel,  as  apparent  on  her 
papers,  a  previous  defect  or  subsequent  abuse  of  authority  on  the  part  of  the 
captors,  will  not  prevent  the  jurisdiction  of  the  admiralty  from  vesting,  to  the 
exclusion  of  the  courts  of  common  law;  Hallett  v.  Novion,  16  Johns.  327. 


G?2  smith's    leading  cases. 

And  it  lias  been  decided  by  the  courts  of  the  United  States,  that  their 
admiralty  jurisdiction  extends  to  cases  occurring  between  the  vessels  and 
persons  of  aliens;  at  all  events,  where  the  parlies  do  not  object,  on  first  ap- 
pearing in  the  cause  j  Mason  v.  The  Ship  Blaircau,  2  Cranch,  240. 

H. 


[=K3G9] 


=^TRUEMAN    V.    FENTON. 

HILARY.— 17  G.  3,  B.  R. 

[REPORTED  COWP.  544.] 

A  bankrupt,  after  a  commission  of  bankruptcy  sued  out,  may,  in  consideration  of  a 
debt  due  before  the  bankruptcy,  and  for  which  the  creditor  agrees  to  accept  no 
dividend  or  benefit  under  the  commission,  make  such  a  creditor  a  satisfaction 
in  part  or  for  the  whole  of  his  debt,  by  a  new  undertaking  or  agreement. — And 
assumpsit  will  lie  upon  such  new  promise  or  undertaking. 

This  was  an  action  on  a  promissory  note  bearing  date  the  11th  February, 
1775,  payable  to  one  Joseph  Trueman  Ahe  plaintifi"'s  brother),  three  months 
after  date,  for  67/.,  and  indorsed  by  him  to  the  plaintiff. 

The  declaration  contained  other  counts  for  goods  sold,  money  had  and  re- 
ceived, and  on  an  account  stated. — The  defendant  pleaded,  1st.  non  assump- 
sit; 2udly,  "that  on  the  19th  January,  1775,  he  became  bankrupt,  and  that 
the  debt  for  which  the  said  note  was  given  was  due  to  the  plaintiff  before 
such  time  as  he,  the  defendant,  became  bankrupt;  and  that  the  note  was  given 
to  Joseph  Trueman  for  the  use  of,  and  for  securing  to  the  said  plaintiff  his 
debt  so  due."  The  cause  was  tried  before  Lord  Mansfield  at  the  sitting 
after  Michaelmas  term,  1776,  when  the  jury  found  a  verdict  for  the  plaiutifi", 
damages  72/.  12s.,  costs  40s.,  subject  to  the  opinion  of  the  Court  upon  a  spe- 
cial case,  stating  the  answer  of  the  plaintiff  in  this  action,  to  a  bill  filed 
against  him  in  the  Exchequer  by  the  present  defendant  for  a  discovery  of 
^o-A-i  the  consideration  of  the  note;  the  substance  of  which  was  as  fol- 
l  '''*  -^  lows  :  "  that  on  the  15th  of  December,  1774,  the  defendant  Fenton 
purchased  a  *quantity  of  linen  of  the  plaintiff  Trueman ;  and  it  being  usual 
to  abate  51.  per  cent.,  to  persons  of  the  defendant's  trade,  the  price,  after 
such  abatement  made,  amounted  to  126/.  18s.  That  at  the  lime  of  the  sale 
it  was  agreed,  that  one  half  of  the  purchase-money  should  be  paid  at  the  end 
of  six  weeks,  and  the  other  half  at  the  end  of  two  months ;  and  in  conside- 
ration thereof,  the. plaintiff  Trueman  drew  two  notes  on  the  defendant  for 
63/.  9s.  each,  payable  to  his  own  order,  at  six  weeks  and  two  months  respec- 
tively.    That  the  defendant  accepted  the  notes,  and  thereupon  the  plaintiff 


TRUEMAN     V.     F  E  N  T  0  N.  683 

gave  him  a  discharge  for  the  sum."  He  thea  denied  that  he  had  proved  or 
chximed  any  debt  or  sum  of  money  under  the  commission;  but  set  forth, 
that  he  acquainted  the  defendant  he  was  surprised  at  his  ungenerous  beha- 
viour in  purchasing  so  Large  a  quantity  of  linen  of  him  at  the  eve  of  his 
bankruptcy,  and  informed  him  he  had  paid  away  the  above  two  notes  :  upon 
which  the  defendant  pressed  him  to  take  up  the  two  notes,  and  proposed  to 
give  him  a  security  for  part  of  the  debt.  That  afterwards,  on  the  11th  of 
February,  1775,  the  defendant  called  upon  the  plaintiff,  and  voluntarily 
proposed  to  secure  to  him  the  payment  of  QIL,  in  satisfaction  of  his  debt,  if 
he  would  take  up  the  two  notes,  and  cancel  or  deliver  them  up  to  the  defen- 
dant. That  the  plaintiff  agreed  to  accept  this  proposal  with  the  approbation 
of  his  attorney,  and  desired  the  note  to  be  made  payable  to  his  brother 
Joseph  Trueman  or  order,  three  months  after  date.  That  he  took  up  the 
two  acceptances  and  delivered  them  to  thg  defendant  to  be  cancelled,  and 
accepted  the  above  note  for  67^.,  in  satisfaction  and  discharge  thereof.  That 
a  commission  of  bankruptcy  issued  against  the  defendant  on  the  19th  of 
January,  1775,  and  that  the  bankrupt  obtained  his  certificate  on  the  17th  of 
April  following."  The  question  referred  was,  whether  the  facts  above 
stated  supported  the  merits  of  the  defendant's  plea  ?  If  they  did  not,  then 
a  verdict  was  to  be  entered  for  the  plaintiff  on  the  general  issue.  But  if  the 
merits  of  the  second  plea  supported  the  defendant's  case,  then  a  verdict  was 
to  be  entered  for  the  defendant  on  that  plea. 

Mr.  Bailer  for  the  plaintiff  argued,  that  the  note,  though  *given  j.^o^-\-[ 
after  the  bankruptcy,  was  in  this  case  binding  upon  the  defendant,  L  '  J 
and  therefore  the  certificate  was  no  bar  to  the  present  action.  1st.  Because 
the  goods,  though  sold  before  the  bankruptcy,  were  sold  on  credit,  and  not 
to  be  paid  for  till  a  future  day :  therefore,  if  no  security  at  all  had  been 
given,  the  debt  could  not  have  been  proved  under  the  commission ;  because 
such  a  case  does  not  fall  within  the  provisions  of  stat.  7  Gr.  1,  c.  31. f  If 
not,  this  is  simply  the  case  of  a  sale  of  goods  on  future  credit,  for  which 
the  vendor  receives  a  note  after  the  vendee  is  become  bankrupt :  because 
the  two  drafts  drawn  by  the  plaintiff  on  the  defendant,  at  the  time  of  the 
sale,  and  accepted  by  the  defendant,  could  not  vary  the  agreement :  it  was 
still  a  sale  on  future  credit,  and  no  debt  due  till  after  the  bankruptcy.  Be- 
sides, they  were  afterwards  delivered  up.  If  no  debt  was  due  at  the  time 
of  the  bankruptcy,  the  merits  of  the  plea  are  clearly  not  proved :  for  the 
merits  are,  that  the  debt  was  then  due.  Now  it  clearly  was  not  due,  and 
thei'efore  the  certificate  was  no  bar  to  the  demand.  2ndly.  Supposing  it 
could  be  contended,  that  there  was  any  thing  like  a  debt  due  before  the 
bankruptcy,  yet  the  plaintiff  upon  the  facts  stated  is  still  entitled  to  recover 
upon  the  note  in  question.  The  consideration  was  for  a  fair  bona  fide  debt, 
without  any  mixture  of  fraud  or  pretence  of  undue  advantage  by  the  plain- 
tiff. On  the  contrary,  there  was  a  gross  fraud  on  the  part  of  the  defendant, 
in  obtaining  the  goods  upon  the  eve  of  his  becoming  bankrupt ;  and  the 
conviction  of  such  his  misconduct  was  the  inducement  with  him  to  offer  the 
security  now  in  dispute.  If  he  were  to  discharge  the  whole  original  debt, 
it  would  not  be  more  than  was  due,  and  what  in  conscience  he  ought  to  pay. 
But  here  the  plaintiff  has  agreed  to  accept  much  less  than  in  conscience  was 

(t)  See  now  6  G.  4,  c.  16,  sect.  51. 


684  smith's  leading   cases. 

due  to  him.  If  so,  like  every  other  debt  whieh  :i  man  is  bound  in  con- 
science to  discharge,  it  is  a  good  ground  for  raising  an  assumpsit.  The 
sliglitest  acknowledgment  is  sufficient  to  revive  a  debt  barred  by  the  statute 
of  limitations.  So,  where  a  man,  after  he  comes  of  age,  promises  to  pay  a 
debt  contracted  during  his  minority,  assumpsit  lies.  As  to  the  case  of  a 
promise  by  a  bankrupt  to  pay  a  debt  in  consideration  of  a  creditor's  signing 
|-*Q-o-i  ^''-^  certificate,  that  is  made  void  by  the  *stat.  5  G.  2,  c.  30,  st.  11. 
L  *'-'  But  even  that  would  have  been  a  ground  of  action  before  the  statute; 
and  it  is  the  only  exception  made.  The  certificate,  no  doubt,  is  a  provision 
for  the  benefit  of  the  bankrupt.  But  he  may  waive  it;  and  here  he  has 
waived  it  for  a  good  and  valuable  consideration.  If  so,  he  is  bound  by  the 
contract.  In  addition  to  this  general  reasoning,  he  cited  the  case  of  Lewis 
v.  Chase,  2  P.  Wnis.  620;  and  Barnardiston  v.  Copeland,  argued  in  the 
Common  Pleas,  in  Hilary  and  Kaster  terms,  1761,  MSS. 

Mr.  Davmport  contra,  for  the  defendant,  contended  that  the  plaintiff  had 
no  other  remedy  for  his  debt,  but  by  resorting  with  the  rest  of  the  creditors 
to  the  commission.  That  the  transaction,  though  coloured  over,  was  clearly 
intended  as  an  evasion  of  the  bankrupt  laws,  and  therefore  manifestly  ille- 
gal. That  the  plaintiff's  taking  up  the  two  drafts,  and  accepting  another 
security  short  of  his  real  debt,  could  in  no  respect  be  a  new  consideration  to 
the  defendant;  because  he  was  at  all  events  discharged  from  them,  by  his 
certificate :  and  as  to  the  objection  that  the  original  debt  itself  was  not  within 
the  Stat.  7  Gr.  1,  c.  81,  and  therefore  could  not  have  been  proved  under  the 
commission,  it  clearly  might,  allowing  a  rebate  of  interest  for  the  time  of 
the  credit  given.  That  the  question  depended  solely  upon  the  construction 
of  the  bankrupt  laws,  and  particularly  the  stat.  5  G.  2,  c.  30  ;  by  which  it 
was  clear,  that  where  such  a  promise  or  undertaking  is  made  by  a  bankrupt 
before  his  certificate  obtained,  it  is  void.  That  any  other  construction  would 
open  a  door  to  that  collusion  respecting  the  certificate  which  the  statute 
meant  to  avoid,  and  at  the  same  time  be  highly  injurious  to  the  bankrupt. 
Therefore  he  prayed  judgment  might  be  entered  for  the  defendant. 

Lord  Man^Jidd. — The  plea  put  in,  in  this  case,  is,  that  the  debt  was  due 
at  the  time  of  the  act  of  bankruptcy  committed;  and  on  that  plea,  in  point 
of  form,  there  was  a  strong  objection  made  at  the  trial,  that  the  allegation 
was  not  strictly  true  :  because,  at  the  time  of  the  sale,  credit  was  given  to 
a  future  day;  which  day,  as  it  appeared  in  evidence,  was  subsequent  to  the 
act  of  bankruptcy  committed.  To  be  sure,  on  the  form  of  the  plea,  the 
r«q-q-|  *defendant  must  fail.  But  I  never  like  to  entangle  justice  in  mat- 
"-  -•  ters  of  form,  and  to  turn  parties  round  upon  frivolous  objections 
where  I  can  avoid  it.  It  only  tends  to  the  ruin  and  destruction  of  both.  I 
put  it,  therefore,  to  the  counsel  on  the  part  of  the  plaintiff  to  give  up  the 
objection  in  point  of  form,  and  to  take  the  opinion  of  the  court,  whether 
according  to  the  facts  and  truth  of  the  case,  the  defendant  could  have 
pleaded  his  certificate  in  bar  of  the  debt  in  question.  And  in  case  they  had 
refused  to  do  so,  I  should  have  left  it  to  the  jury  upon  the  merits.  The 
counsel  for  the  plaintiff  very  properly  gave  up  the  point  of  form.  The 
question,  therefore,  upon  the  case  reserved,  is  worded  thus  :  Whether  the 
facts  support  the  merits  of  the  defendant's  plea  ?  That  is,  whether  on  the 
merits  of  the  case,  properly  pleaded,  the  certificate  of  the  defendant  would 
have  been  a  bar  to  the  plaintiff's  action  ? — Now,  in  this  case,  there  is  no 


TRUE  MAN     V.     F  E  N  T  0  N.  G85 

fraud,  no  oppression,  no  scheme  whatsoever,  on  the  part  of  the  plaintiff  to 
deceive  or  impose  on  the  defendant;  and  as  to  collusion  with  respect  to  the 
certificate,  where  a  creditor  exacts  terms  of  his  debtor  as  the  consideration 
for  signing  his  certificate,  and  obtains  money  or  a  part  of  his  debt  for  so 
doing,  the  assignees  may  recover  it  back  in  an  action.  But  that  is  not  the 
case  here.  So  far  from  it,  the  transaction  itself  excluded  the  plaintiff  from 
having  any  thing  to  do  with  the  certificate.  No  man  can  vote  for  or  against 
the  certificate  till  he  has  proved  his  debt.  Here  the  plaintiff  delivers  up 
the  two  drafts  bearing  date  prior  to  the  act  of  bankruptcy,  and  by  agree- 
ment accepts  one  for  little  more  than  half  their  amount,  bearing  date  after 
the  commission  of  bankruptcy  sued  out.  Most  clearly,  therefore,  he  could 
not  have  proved  that  note  under  the  commission;  and  if  not,  he  could  have 
nothing  to  do  with  the  certificate. — That  brings  it  to  the  general  question, 
whether  a  bankrupt,  after  a  commission  of  bankruptcy  sued  out,  may  not, 
in  consideration  of  a  debt  due  before  the  bankruptcy,  and  for  which  the 
creditor  agrees  to  accept  no  dividend  or  benefit  under  the  commission,  make 
such  creditor  a  satisfaction  in  part  or  for  the  whole  of  his  debt,  by  a  new 
undertaking  and  agreement?  A  bankrupt  may  undoubtedly  contract  new 
debts;  therefore,  if  there  is  an  objection  to  his  reviving  an  old  debt  r^o-iA-] 
by  a  new  promise,  it  must  be  founded  upon  the  *ground  of  its  being  L 
nudum  jnictum.  As  to  that,  all  the  debts  of  a  bankrupt  are  due  in  con- 
science, notwithstanding  he  has  obtained  his  certificate;  and  there  is  no 
honest  man  who  does  not  discharge  them,  if  he  afterwards  has  it  in  his 
power  to  do  so.  Though  all  legal  remedy  may  be  gone,  the  debts  are  clearly 
not  extinguished  in  conscience.  How  far  have  the  courts  of  equity  gone 
upon  these  principles?  Where  a  man  devises  his  estate  for  payment  of  his 
debts,  a  court  of  equity  says  (and  a  court  of  law  in  a  case  properly  before 
them  would  say  the  same),  all  debts  barred  by  the  statute  of  limitations 
shall  come  in  and  share  the  benefit  of  the  devise ;  because  they  are  due  in 
conscience :  therefore,  though  barred  by  law,  they  shall  be  held  to  be  revived, 
and  charged  by  the  bequest.  What  was  said  in  the  argument  relative  to 
the  reviving  a  promise  at  law,  so  as  to  take  it  out  of  the  statute  of  limita- 
tions, is  very  true.  The  slightest  acknowledgment  has  been  held  sufScienl; 
as  saying,  "  prove  your  debt  and  I  will  pay  you  ;" — "  I  am  ready  to  account, 
but  nothing  is  due  to  you ;"  and  much  slighter  acknowledgments  than  these 
will  take  a  debt  out  of  the  statute.  So  in  the  case  of  a  man  who,  after  he 
comes  of  age,  promises  to  pay  for  goods  or  other  things,  which,  during  his 
minority,  one  cannot  say  he  has  contracted  for,  because  the  law  disables 
him  from  making  any  such  contract;  but  which  he  has  been  fairly  and 
honestly  supplied  with,  and  which  were  not  merely  to  feed  his  extravagance, 
but  reasonable  for  him  (under  his  circumstances)  to  have;  such  promise 
shall  be  binding  upon  him,  and  make  his  former  undertaking  good. — Let  us 
see  then  what  the  transaction  is  in  the  present  case.  The  bankrupt  appears 
to  me  to  have  defrauded  the  plaintiff,  by  drawing  him  in,  on  the  eve  of  a 
bankruptcy,  to  sell  him  such  a  quantity  of  gonds  on  credit.  It  was  grossly 
dishonest  in  him  to  contract  such  a  debt  at  a  time  when  he  must  have  known 
of  his  own  insolvency,  and  which  it  is  clear  the  plaintiff  had  not  the  smallest 
suspicion  of,  or  he  would  not  have  given  credit,  and  a  day  of  payment  in 
futaro.  On  the  other  hand,  what  is  the  conduct  of  the  plaintiff?  He 
relinquishes  all  hope  or  chance  of  benefit,  from   a  dividend  under  the  com- 


686  smith's   leading   cases. 

^o-,--i  niission,  bj  forbearing  to  prove  his  debt;  gives  up  the  securities  he 
L  '  J  h;id  received  *trom  the  bankrupt,  and  accepts  of  a  note,  amounting 
to  little  more  than  half  the  real  debt,  in  full  satisfaction  of  his  whole  demand. 
Is  that  against  conscience?  Is  it  not,  on  the  contrary,  a  fair  consideration 
for  the  note  in  question?  lie  might  foresee  prospects  from  the  way  of  life 
the  bankrupt  was  in,  which  might  enable  him  to  recover  this  part  of  his  debt, 
and  he  takes  his  chance;  for  till  then  he  could  get  nothing  by  the  mere  im- 
prisonment of  his  person.  He  uses  no  threats,  no  menace,  uo  oppression, 
no  undue  influence;  but  the  proposal  first  moves  from,  and  is  the  bankrupt's 
own  voluntary  request.  The  single  question  then  is,  whether  it  is  possible 
for  the  bankrupt,  in  part  or  for  the  whole,  to  revive  the  old  debt?  As  to 
that,  Mr.  Justice  Aston  has  suggested  to  me  the  authority  of  Dillon  v.  Bailey, 
where  the  Court  would  not  hold  to  special  bail,  but  thought  reviving  the  old 
debt  was  a  good  consideration.  The  two  cases  cited  by  Mr.  Buller  are  very 
material.  Lewis  v.  Chase,  1  P.  Wms.  620,  is  much  stronger  than  this ;  for 
that  smelt  of  the  certificate ;  and  the  Lord  Chancellor's  reasoning  goes  fully 
to  the  present  question.  Then  the  case  of  Barnardiston  v.  Coupland,  in  C. 
B.,  is  in  point.  Lord  Chief  Justice  Willes  there  says,  "that  the  revival  of 
an  old  debt  is  a  suflicient  consideration."  That  determines  the  whole  case. 
Therefore,  I  am  of  opinion,  that  if  the  plea  put  in  had  been  formally  pleaded, 
the  merits  of  the  case  would  not  have  been  sufficient  to  bar  the  plaintiif 's 
demand. 

Anton,  Justice. — As  a  case  of  conscience,  I  am  clearly  of  opinion  that  the 
plaintiff  is  entitled.  Wherever  a  party  waives  his  right  to  come  in  under 
the  commission,  it  is  a  benefit  to  the  rest  of  the  creditors.  In  the  case  of 
Dillon  V.  Bailey,  the  Court  on  the  last  day  of  the  term  were  of  opinion, 
"that  the  defendant  could  not  be  held  to  special  bail;  yet  they  would  not 
say  that  he  might  not  revive  the  old  debt,  which  was  clearly  due  in  con- 
science." A  bankrupt  may  be,  and  is,  held  to  be  discharged  by  his  certifi. 
cate  from  all  debts  due  at  the  time  of  the  commission  ;  but  still  he  may  make 
himself  liable  by  a  new  promise.  If  he  could  not,  the  provision  in  the  stat. 
5  Gr.  2,  c.  30,  sect,  11,  by  which  every  security  for  the  payment  of  any  debt 
due  before  the  party  became  bankrupt,  as  a  considei'ation  to  a  creditor  to 
sign  his  certificate,  *is  made  void,  would  be  totally  nugatory. — Lord 
^lannfield  added  that  this  observation  was  extremely  forcible  and 


[*376] 

strony;. 


Per  Cur.     Judgment  for  the  plaintiff. 


On  the  ?ame  ground  Ftniuls  a  promise  riiptcy,  stnt.  6  G.  4,  c.  16,  p.  131,  enacts, 
to  pay  a  debt  barred  by  the  statute  of  "that  no  bankrupt,  after  his  certificate 
limitations,  Heyling-  v.  Hastings,  Lord  shall  have  been  allowed,  shall  be  liable 
Kaym.  JiSO ;  or  by  the  provisions  of  an  to  pay  or  satfsfy  any  debt,  claim,  or  de- 
insolvent  act.  Best  v.  Barber,  Solw.,  N.  mand,  from  which  he  shall  have  been 
F.  59;  or  contracted  during'  infancy,  discliargcd  by  virtue  of  such  certificate, 
Southerton  v.  Whitlocke,  1  IStr.  690.  or  any  part  of  such  debt,  claim,  or  de- 
But  in  all  these  cases  the  legislature  mand,  upon  any  contract,  promise,  or 
has  intervened.      In  the  case  uf  bank-  agreement  made,  or  to   be  made,  after 


T  R  U  E  M  A  N     V.     F  E  N  T  O  N. 


C87 


the  suing  out  of  the  coinmi^iion,  unless 
sucli  promise,  contract,  or  agreement  be 
made  in  icriling,  signed  by  the  bank- 
ritjit,  or  by  some  person  thereto  lawfully 
authorised  in  uwiling  by  such  bankrii]  t. 
[Such  a  promise  need  not  state  the 
amount  of  tiie  debt:  that  may  be  sup- 
plied by  parol  evidence,  Lobb  v.  Stan- 
ley, 5  Q,.  B.  574.  It  may  be  made  belbre 
certificate;  but  in  that  case  it  ought  dis- 
tinctly to  appear  that  the  bankrupt  meant 
to  pay  personally,  notwithstanding  his 
certificate,  and  not  merely  that  his  estate 
should  pay,  Kirkpatrick  v.  Tattersall,  13 
Alee.  6i  W.  76G.  And  such  a  promise 
may  be  founded  on  a  contingent  liability, 
for  instance  that  of  a  security  tor  his 
principal  debtor  before  payment  of  the 
debt:  and  it  may  be  framed  so  as  to 
preserve  the  righi  of  action  which  m;iy 
accrue  in  respect  of  such  liability,  not- 
withstanding that  the  52nd  section  of  the 
bankrupt  act  gives  the  surety  a  right 
of  proof  upon  payment  of  the  debt,  Earle 
V.  (Jliver,  2  Exch.  71 ;  in  which  case  the 
whole  subject  underwent  a  full  discus- 
sion.] Jn  the  case  of  the  statute  of  lim- 
itations, stcit.  9  G.  4,  c  14,  requires  that 
the  acknowledgment  which  is  to  take  a 
case  out  of  its  operation  shall  be  in  lorit- 
ing  signed  by  the  party  to  be  charged 
thereby ;  leaving,  however,  the  eftect  of 
part  payment  as  it  stood  before  the  act. 
tSee  VVhitcomb  v.  Whiting,  ante,  et 
notas.  [See  as  to  the  etlijci  and  con- 
struction of  such  a  promise,  Gardner  v. 
M'Mahon,  3  Q.  B.  56,  2  G.  &  D.  593,  S. 
C;  Humphreys  v.  Jones,  14  Alee.  &  W. 
I  ;  Hart  v.  Prendergast,  14  AJee.  &  W. 
741;  Chealy  v.  Dalby,  4  You.  &  Coll. 
228;  Phillips  V.  Phillips,  3  Hare,  299; 
Cripps  v.  Davis,  12  x\]ee.  &  W.  159;  Ir- 
ving v.  Veitch,  3  Alee.  &  VV.  90]  In 
the  case  of  the  insolvent,  stat.  7  G.  4,  c. 
.57,  s.  61,  directed,  and  1  &.  2  Vict.  c. 
110,  s.  91,  now  directs,  that,  after  any 
person  shall  have  become  entitled  to  the 
benefit  of  that  act,  by  any  such  adjudica- 
tion as  therein  aforesaid,  no  writ  of  fi.  fa. 
or  elegit  shall  issue  on  any  judgment  ob- 
tamed  against  him  for  any  debt  or  sum 
of  money  with  respect  to  which  he  shall 
have  so  become  enlilled,  nor  in  any  ac- 
tion or  any  neiv  contract  or  security  for 
payment  thereof,  except  upon  the  judg- 
ment entered  up  against  such  prisoner, 
according  ti)  that  act;  and  if  any  suit  or 
action  be  brought,  or  any  scire  facias  is- 
sued against  any  such,  person,  his  heirs, 
executors,  administrators,  or  assigns,  for 
any  such   debt  or  sum  of  money,  or  on 


any  new  contract  or  security  for  payment 
thereof,  or  upon  any  judgment  obtained 
against,  or  any  stauite  or  recognisance 
acknowledged  by  such  person  for  the 
same,  except  as  aforesaid,  it  shall  be  law- 
ful for  such  person,  his  heirs,  executors, 
or  administrators,  to  plead  generally,  that 
such  person  was  duly  discharged  accord- 
ing to  this  act,  b)'  the  order  of  adjudica- 
tion made  in  that  behalf;  and  that  such 
order  remains  in  force,  without  pleading 
any  other  matter  specially,  whereto  the 
plaintif}'  may  reply  generally,  and  deny 
the  matter  pleaded  as  aforesaid,  or  reply 
any  other  matter  or  thing,  which  may 
show  the  defendant  not  to  be  entitled  to 
the  benefit  of  this  act,  or  that  such  per- 
son was  not  duly  discharged,  according 
to  the  provisions  thereof,  in  the  same 
manner  as  the  plaintiff  or  plaintiffs  might 
have  replied  in  case  the  defendant  had 
pleaded  this  act,  and  a  discharge  by  vir- 
tue thereof,  specially.  The  defendant 
must  take  advantage  of  this  act  by  plead- 
ing at  the  proper  time,  for  the  Court  will 
not  relieve  him  in  a  summary  way,  as  by 
setting  aside  a  judgment  signed  on  a 
warrant  of  attorney  to  confess  judgment 
in  an  action  on  a  bill  given  tor  the  old 
debt.  Philpott  v.  Aslett,  4  Tyrw.  729; 
[Denne  v.  Knott,  7  AJee.  &  VV.  144; 
and  see  a  similar  point  upon  the  gaming 
acts.  Lane  v.  Chapman,  11  Ad.  &  Ell. 
966.]  Sed  vide  Smith  v.  Alexander,  5 
Dowl.  13,  where  Williams,  J.,  set  aside 
a  warrant  of  attorney;  but  there  no  ac- 
tion had  been  brought,  so  that  defendant 
had  had  no  opportunity  of  pleading.  If 
properly  taken  advantage  of,  the  act  is  a 
defence,  even  though  there  be  anew  con- 
sideration for  the  insolvent's  promise  to 
discharge  the  old  debt.  Evans  v.  Wil- 
liams, 3  Tyrw.  226;  [Ashley  v.  Killick, 
5  Alee.  &  VV.  -509;  sed  vide  Denne  v. 
Knott,  7  Alee.  &  W.  141,  where  the 
bond  was  for  the  old  debt,  and  220Z. 
more;  and  Steerman  v.  Thompson,  II 
Ad.  &  Ell.  1027,  in  which  a  bill  for  the 
old  debt  and  a  new  one  was  held  valid 
pro  tanto  ;  and  a  warrantof  attorney  un- 
der similar  circumstances  was  sanctioned 
pro  tanto  in  Collins  v.  Benton,  2  Alan.  & 
Gr.  868.  No  similar  provision  has  been 
found  in  5  &  6  Vict.  c.  116,  or  7  &  8 
Vict.  c.  96  ;  which,  indeed,  seem  to  have 
been  framed  upon  the  model  of  the  bank- 
rupt acts,  and  to  admit  some  other  provi- 
sions essential  to  an  insolvent  code,  such, 
for  instance,  as  those  relating  to  the 
ecclesiastical  properly  of  clergymen  ] 
Lastly,  the  case  of  the  infant  is  provided 


688 


SMITHS     LEADING     CASES. 


for  by  sfat.  9  G.  4,  c.  14,  s,  5,  which 
enacts  that  "no  action  shall  be  main- 
tained   whereby    to   charge   any 


[*377] 


*[)erson,  upon  any  promise  made 


after  full  age,  to  pay  any  debt  contracted 
during  infancy,  or  npon  any  ratification, 
after  full  age,  of  any  promise  or  simple 
contract  made  during  infincy,  unless 
such  promise  or  ratification  shall  be  made 
by  some  writmg,  signed  by  the  party  to 
be  charged  therewith."  [In  Hartley  v. 
Wharton,  11  Ad.  &E11.  9:J4,  a  paper  in 
these  words,  "  I  am  sorry  to  give  you  so 
much  trouble  in  calling,  but  1  am  not  pre- 
pared for  you,  but  will  without  neglect 
remit  you  in  a  short  time  ;"  signed  by 
tlie  debtor,  though  without  address, 
and  naming  no  sum,  was  held  a  sufficient 
ratification  of  a  contract  made  during 
his  intiincy,  and  it  was  further  held,  that 
it  was  for  the  defendant  to  prove  that  he 


was  under  age  when  it  was  written,  if 
he  so  asserted.  In  Thornton  v.  Illing- 
worth,  2  B  &,  C.  824,  it  was  decided  that 
a  ratification  by  an  infant  after  action 
brought  is  not  sufficient.  Tiiesubjiict  of 
ratification  of  contracts  made  by  infants, 
and  the  proper  mode  of  pleading  it,  was 
mucli  considered  in  Williams  v.  Moore, 
11  iMee.  &.  VV.  195]. 

Notwithstanding  the  above  enact- 
ments, the  principles  laid  down  in  the 
text  continue  in  full  force,  and  apply  to 
contracts  entered  into  in  writing,  accord- 
ing to  the  directions  of  the  respective 
acts  prescribing  that  ceremony,  exactly 
as  they  would  have  applied  to  parol  con- 
tracts conceived  in  similar  terms  belijre 
those  statutes.  In  the  case  of  the  insol- 
vent, indeed,  such  a  contract  is  now  pro- 
hibited. 


See  the  xVmerican  cases  of  Mills  v.  Wyman,  Snevily  v.  Reed,  &c.  cited 
in  the  note  to  Lampleigh  v.  Brathwaite. 

In  «« The  case  of  Field's  Estate,"  2  Ilawle,  351,  it  was  said  by  Gibson, 
C.  J.,  to  be  "  settled  by  a  train  of  decisions  not  now  to  be  questioned," — 
though,  how  this  opinion  came  to  be  adopted,  he  said,  that  he  was  at  a  loss 
to  imagine — "  that  a  debt  discharged  by  a  certificate  of  bankruptcy,  is  an 
available  consideration  for  a  new  promise  :"  but  it  was  decided  that  where 
the  original  obligation  is  by  specialty,  the  subsequent  re-assumption  of  the 
debt  does  not  revive  the  sj)ecialti/,  but  creates  only  a  simple  contract  liability. 

II.  B.  W. 


^378]    =!=C  REPPS   V.    DURDEN   ET   A  L  I  0  >S. 


TRINITY.-lTGco.  3.  B.  R. 


[REPORTED    COWP.    640.1 

A  person  can  commit  but  one  ofl^ence  on  the  same  day,  by  "exerclsins-  his  ordinary 
calling  on  a  Sunday,"  contrary  to  the  statute  29  Car.  2,  c.  7.  And,  if  a  justice 
of  peace  proceed  to  convict  him  in  more  than  one  penalty  for  the  same  day,  it  is 


CREPPS     V.     BURDEN.  689 

an  excess  of  jurisdiction  for  which  an  action  will  lie,  before  the  conviclions  are 
quashed. (a) 

This  was  an  fiction  of  trespass  brought  by  the  plaintiff  against  the  defen- 
dant, for  breaking  into  his  house  and  taking  away  his  goods,  and  converting 
them  to  his  own  use  :  to  this  the  general  issue  was  pleaded,  and  the  cause 
came  on  to  be  tried  at  Westminster,  before  Lord  Mansfield,  at  the  sittings 
after  Easter  term,  1777;  when  a  verdict  was  found  for  the  plaintiff,  for 
three  several  sums  of  five  shillings  each,  and  costs  40s.,  subject  to  the 
opinion  of  the  court  upon  the  following  case  : — ^'  That  the  plaintiff  was  con- 
victed of  selling  small  hot  loaves  of  bread,  the  same  not  being  any  work  of 
charity,  on  the  same  day  (being  Sunday)  by  four  separate  convictions,  which 
were  as  follow  :  '  Westminster,  to  wit.  Be  it  remembered,  that  on  the  10th 
of  November,  1776,  Peter  Crepps,  of,  &c.,  baker  and  salter  of  bread,  is  law- 
fully convicted  before  me,  Jonathan  Durden,  one  of  his  Majesty's  justices 
of  the  peace  for  the  said  city  and  liberty  of  Westminster,  for  unlawfully 
doing  and  exercising  certain  worldly  labour,  business  and  work  of  his  ordi- 
nary calling  of  a  baker  in  the  parish  aforesaid,  by  selling  of  small  hot  loaves 
of  bread,  commonly  called  rolls,  the  same  not  being  any  work  of  necessity  or 
charity,  on  the  said  10th  of  November,  being  the  Lord's  day,  commonly 
called  Sunday,  contrary  to  *the  statute  in  that  case  made  and  pro-  p^.of-Qi 
vided ;  for  which  offence  I,  the  said  Jonathan  Durden,  have  ad-  L  J 
judged,  and  do  hereby  adjudge,  the  said  Peter  Crepps  to  have  forfeited  the 
sum  of  five  shillings.'  " 

The  three  other  convictions  were  verbatim  the  same,  without  any  varia- 
tion. The  case  then  proceeded  to  state,  that  the  defendant  Durden  issued 
the  four  warrants,  afterwards  stated,  to  the  other  defendants,  who  by  virtue 
of  those  warrants  levied  the  four  penalties  of  five  shillings  each,  and  the 
expenses.  The  first  of  these  four  warrants  ran  thus  :  ''  Westminster  to  wit. 
To  the  constables  of  St,  James's,  in  the  city  and  liberty  of  Westminster. 
Whereas  information  has  been  made  before  me,  Jonathan  Durden,  one  of 
his  Majesty's  justices  of  the  peace  for  the  city  and  liberty  of  Westminster, 
that  Peter  Crepps,  baker,  of  &c.,  did  on  the  10th  day  of  November,  1776, 
being  the  Lord's  day,  commonly  called  Sunday,  exercise  his  trade  and 
ordinary  calling  of  a  baker,  by  selling  hot  loaves  of  bread,  contrary  to  the 
statute  in  that  case  made  and  provided ;  and  whereas  the  said  Peter  Crepps 
has  been  duly  summoned  to  appear  before  me,  to  answer  to  the  said  infor- 
mation, but  has  contemptuously  refused  to  appear  to  answer  the  contents 
thereof;  and  whereas,  upon  full  examination,  and  upon  the  oath  of  J.  H., 
the  said  Peter  Crepps  was  lawfully  convicted  before  me  of  the  offence  afore- 
said, whereby  he  has  incurred  the  penalty  of  five  shillings,  pursuant  to  the 
statute  in  that  case  made  and  provided ;  therefore,"  &c.  &c.  The  words  of 
the  other  three  warrants  were  vei'batim  the  same. 

The  first  question  reserved  was,  whether  in  this  action,  and  before  the 
convictions  were  quashed,  an  objection  could  be  made  to  their  legality?  If 
no  objection  could  be  made,  then  a  nonsuit  was  to  be  entered.     But  in  case 

(a)  See  an  analogous  case,  Brooks  and  another  v.  Glencross,  2  M.  &  Rob.  62  ;  [and  see 
R.  V.  Eastern  Counties  Railway,  10  Mee.  &.  W.  58.  As  to  the  effect  of  two  orders  or 
convielions  for  the  same  offence,  see  Wilkins  v.  Hcmsworth,  7  Ad.  &  Ell.  807  ;  VVilkins 
V,  Wright,  3  Tyrw.  830,  2  C.  &,  M.  193.J 

Vol.  I.-44 


690  smith's   leading   cases. 

iin  objection  to  tlieir  legality  might  be  made,  then  the  question  was,  whether 
the  levy  under  the  three  last  warrants  could  be  justified?  If  not  justifiable, 
a  verdict  was  to  be  entered  for  the  plaintiff",  with  15s.  daipages  and  40i;. 
costs;  if  justifiable,  then  a  verdict  was  to  be  entered  for  the  defendants. 

Mr.  Bullcr  for  the  plaintiiF,  as  to  the  first  point,  insisted,  that  wherever  a 
conviction  is  in  itself  clearly  bad,  it  is  open  to  the  party  to  take  objection 
r*^Sm  ^°  '^^  ^"  ^^  action  against  the  *justice;  and  it  is  no  answer  on  his 
L  -I  part  to  say,  that  the  conviction  is  not  quashed,  or  in  force;  because 
it  is  incumbent  upon  him  to  show  the  regularity  of  his  own  proceedings. 
That  there  were  several  cases  to  this  purpose ;  and  though  they  were  deci- 
sions at  Nisi  Prius,  yet,  as  they  were  uniform  in  laying  down  the  same  doc- 
trine, they  ought  to  have  considerable  weight  in  this  case.  The  first  he 
should  mention  was  Hill  v.  Bateman,  1  Str.  711  ;  not  for  the  principal 
matter  adjudged,  but  because  it  was  agreed  on  all  hands,  in  that  case,  as  a 
settled  point,  "  that  in  all  actions  against  justices  of  peace,  they  must  show 
the  regularity  of  their  proceedings."  He  added,  that  he  had  a  manuscript 
note  of  the  same  case,  to  the  same  purport.  In  a  case  of  Moult  v.  Jennings, 
coram  Eyre,  C.  J.,  upon  trespass  and  false  imprisonment  against  the  defend- 
ant, and  the  general  issue  pleaded,  it  appeared  that  the  plaintiff"  had  been 
convicted  of  swearing ;  and  Eyre  said,  if  the  nature  of  the  oaths  had  not 
been  specified  in  the  conviction,  so  that  they  might  appear  to  the  court,  the 
conviction  would  have  been  void.  In  Stanbury  v.  Bolt,  coram  Fortescuc, 
J.,  Trin.  11  Or.  1,  upon  tresjiass  for  taking  a  brass  pan,  and  false  imprison- 
ment, it  did  not  appear  that  the  plaintiff"  had  been  summoned;  and  the  con- 
viction was  adjudged  void  for  that  reason  only.  In  Coles's  case,  Sir  William 
Jones,  170,  it  was  held  by  the  whole  Court,  "  that  if  a  justice  does  not 
pursue  the  form  prescribed  by  the  statute,  the  party  need  not  bring  error, 
but  all  is  void,  and  coram  non  Jiuh'ce."  There  are  other  authorities  in  which 
it  has  been  held,  that  an  action  will  lie,  even  though  the  conviction  is  good 
in  point  of  form,  if  it  is  not  supported  by  the  truth  and  justice  of  the  case. 
There  was  one  in  Shropshire,  before  Grould,  J.,  where  the  plaintiff"  had  been 
convicted  upon  the  game  laws,  and  the  conviction  itself  good  in  point  of 
form :  but  the  party  was  not,  in  truth,  an  object  of  the  game  laws;  where- 
upon Gould  directed  the  jury  to  find  for  the  plaintiff",  which  they  accord- 
ingly did.  There  was  another  case  in  Lancashire,  before  Mr.  Justice  Gould, 
to  the  same  eff"cct.  In  criminal  cases  it  is  clear,  that  the  conviction  being 
good  in  point  of  form  is  no  protection  to  the  justice;  and,  if  not,  why  should 
P^qq-i-i  it  be  so  in  a  civil  action  ?  If  he  convict  illegally,  he  ought  not  to  be 
L  -^  sheltered,  and  an  action  is  the  *only  mode  of  redress  to  the  party 
injured.  But,  if  the  formality  of  the  conviction  is  to  be  an  answer  to  the 
action,  the  party  injured  would  be  without  redress,  where  he  would  be  most 
entitled  to  it;  because  the  caution  of  the  justice,  to  be  correct  in  form, 
would  increase  in  proportion  to  his  intention  to  act  illegally.  In  Brucklcs- 
bury  v.  Smith,  2  Bur.  G56,  every  act  previous  to  the  conviction  is  set  out, 
as  well  as  the  conviction  itself.  If  this  case  had  happened  before  the  stat. 
7  Jac.  1,  c.  5,  which  enables  justices  of  peace  to  plead  the  general  issue, 
and  give  the  special  matter  in  evidence,  the  defendant  must  have  specially 
set  forth  every  stage  of  the  proceedings  upon  the  record,  and  the  omission 
of  any  one  fact  would  have  been  fatal;  or,  if  upon  the  face  of  the  record 
it  had  appeared  the  conviction  was  illegal,  it  would  have  been  a  good  cause 


CREPPSV.     BURDEN.  691 

of  demurrer.  Since  the  statute,  Lis  defence  must  be  equally  good  in  evi- 
dence:  for  the  statute  does  not  vary  the  law;  it  only  meant  to  ease  the 
justice  from  the  difficulty  and  risk  of  special  pleading.  Even  in  cases  vehere 
the  legislature  gives  a  summary  form  of  conviction,  and  where  no  summons 
is  necessary,  the  justices  must  pursue  the  form  prescribed,  or  it  will  be  fatal. 
Secondly,  upon  the  merits  :  the  words  of  the  stat.  29  Car.  2,  c.  7,  are,  "  that 
no  tradesman  or  other  person  shall  do  or  exercise  any  worldly  labour,  business, 
or  work  of  their  ordinary  calling  on  the  Lord's  day,  works  of  necessity  and 
charity  only  excepted."  In  Rex  v.  Cox,  2  Bur.  786,  the  court  held,  "  that 
baking  puddings  and  pies  was  within  the  exception;"  and,  if  so,  why  should 
not  the  baking  rolls  be  so  too  ?  But  what  is  decisive  is,  that  the  stat.  29 
Car.  2,  c.  7,  gives  no  summary  form  of  conviction;  whereas  the  convictions 
produced  barely  state  that  the  plaintiff  was  convicted,  without  any  informa- 
tion, summons,  appearance,  or  evidence  being  stated.  In  point  of  form, 
therefore,  all  four  are  bad.  Lastly,  supposing  they  were  good  in  form,  the 
three  last  are  an  excess  of  the  justice's  jurisdiction;  for  the  offence  created 
by  the  statute  is  "  exercising  his  calling  on  the  Lord's  day."  If  the  plain- 
tiff, therefore,  had  continued  baking  from  morning  till  night,  it  would  still 
be  but  one  offence.  Here  there  are  four  convictions  for  one  and  the  same 
offence;  consequently,  as  to  three,  there  is  an  excess  of  jurisdiction :  and  if 
So,  all  is  void,,  and  coram  non  judice ;  *and  an  action  will  lie,  not  ^009-1 
only  against  the  justice,  but  likewise  against  the  officers.  To  this  L  -' 
point  he  cited  Hardres,  484,  and  concluded  by  praying  judgment  for  the 
plaintiff. 

Mr.  T.  Cowper,  contra,  for  the  defendant,  contended,  1.  That  by  the  bare 
production  of  the  conviction  at  the  trial  the  cause  was  at  an  end,  and  the  Court 
estopped  from  any  further  inquiry.  That  it  was  the  general  apprehension  and 
prevailing  opinion  of  the  profession,  founded  in  constant  practice,  that  a  con- 
viction in  a  matter  of  which  the  justice  had  jurisdiction,  must  be  removed  by 
certiorari  and  quashed,  before  it  can  be  questioned  at  Nisi  Prius.  If  he  has  no 
jurisdiction,  no  doubt  but  all  is  coram  non  judice,  and  void.  But  here  the  jus- 
tice had  jurisdiction  ;  and  if  so,  with  deference  to  the  opinion  of  Mr.  Justice 
Gould,  in  the  cause  tried  before  him  in  Shropshire,  the  conviction,  as  to  the 
matter  of  fact  contained  in  it,  is  conclusive  in  favour  of  the  justice  in  au 
action,  though  it  is  not  so  in  an  information.  If  it  were  not,  instead  of  the 
mischief  to  be  apprehended  from  the  oppression  of  the  justice,  no  one  would 
act  in  the  commission.  2.  As  to  the  objections  which  have  been  taken  to 
the  convictions  in  point  of  form,  he  said,  it  would  be  time  enough  to  answer 
them  when  the  convictions  were  removed  and  stood  in  the  paper  for  argu- 
ment. At  present  it  was  sufficient  to  observe  that  they  continued  as  so 
many  judgments  on  record,  and,  as  such,  conclusive,  till  reversed  by  appeal, 
or  quashed  by  this  Court.  He  agreed  the  stat.  7  Jac.  1,  c.  5,  did  not  vary 
the  law :  but  insisted,  that  before  that  statute,  it  would  have  been  a  good 
plea  for  the  defendant  to  have  stated,  that  the  plaintiff  was  convicted,  &c,, 
as  in  this  case;  and  if  the  plaintiff  had  traversed  the  conviction,  the  defend- 
ant might  have  demurred.  The  solo  ground  and  object  of  taking  away  the 
certiorari  in  the  several  acts  of  parliament  for  that  purpose,  was  to  prevent 
vexatious  suits  against  justices  for  mere  informalities  in  their  proceedings. 
But  they  still  remain  liable  to  an  information  if  they  wilfully  act  wrong. 


692  smith's   leading   cases. 

This  Court  has  often  lamented,  when  obliged  to  quash  a  conviction  for  want 
of  form,  because  it  opens  a  door  to  an  action. 

As  to  this  being  but  one  continued  offence,  it  might  be,  that  it  was  car- 
r*5?8^i  ^"^^^  ^^  ^*  ^^^^  different  places;  for  there  is  ^evidence  of  four  differ- 
L  -'  ent  acts,  and  the  Court  will  not  presume  the  contrary  against  the 
justice.  But,  if  the  nature  of  the  offence  is  sucb,  that  it  could  only  be 
committed  once  in  the  same  day,  still  the  plaintiff  has  no  remedy,  while  the 
convictions  are  in  force,  but  by  removing  them  into  this  court  to  be  quashed 
for  illegality. 

Lord  Manajield. — May  there  not  be  this  point,  that  the  justice  had  no 
jurisdiction,  after  convicting  the  plaintiff  in  the  first  penalty?  The  act  of 
parliament  gives  authority  to  punish  a  man  for  exercising  his  ordinary  call- 
ing on  Sunday.  The  justice  exercises  bis  jurisdiction,  by  convicting  him 
in  the  penalty  for  so  doing.  But  then,  he  has  proceeded  to  convict  him  for 
three  other  offences  in  the  same  day. 

Mr.  Coicpcr. — If  he  has  done  so,  it  is  only  a  ground  for  quashing  the 
convictions  :  but  no  priority  appears  to  give  legality  to  one  in  preference  to 
the  other. 

Lord  Mansfield. — This  point  you  agree  in ;  that  if  the  justice  had  no 
jurisdiction,  it  is  open  to  inquiry  in  an  action.  Now,  if  there  are  four  con- 
victions, for  one  and  the  same  offence  committed  on  one  and  the  same  day, 
three  of  them  must  necessarily  be  bad ;  and,  if  so,  it  does  not  signify  as  to 
the  merits  of  the  action  which  of  the  four  is  legal,  or  which  illegal. 

I  do  not  remember  that  at  the  trial  it  was  contended  the  plaintiff  would 
be  entitled  to  recover  if  the  convictions  were  informal :  or  that  any  objec- 
tion was  taken  to  their  formality  there.  The  single  question  intended  to  be 
tried  was,  whether  there  could  be  more  than  one  penalty  incurred  for  exer- 
cising a  man's  ordinary  calling  on  one  and  the  same  Sunday  ?  As  to  that 
thei'e  can  be  no  doubt :  the  only  doubt  was,  whether  that  objection  could 
be  taken  at  the  trial  before  the  convictions  were  quashed.  In  the  extent  in 
wbich  the  argument  upon  that  point  has  proceeded,  it  is  a  matter  of  consid- 
ei'able  consequence;  and,  as  a  general  question,  I  should  be  glad  to  think 
of  it. 

Aston,  J. — The  Court  will  never  grant  an  information  unless  the  convic- 
tion is  quashed.  Kex  v.  Heber,  2  Str.  915.  As  to  the  general  question 
before  the  Court,  suppose  the  justice  were  to  convict  for  a  single  offence, 
where  no  offence  at  all  had  been  committed ;  would  not  an  action  lie  in  that 
«Q«n  case  ?  If  it  would,  why  not  in  this,  where  *there  are  four  convictions 
«-  -'  for  one  and  the  same  offence  ?  It  seems  to  me  that  the  baking  every 
roll  might  as  well  have  been  charged  as  a  separate  offence. 

Cm?',  adv.  vult. 


Afterwards,  on  Wednesday,  June  18th  in  this  term,  Lord  Mansfield,  after 
stating  the  case  at  large,  delivered  the  unanimous  opinion  of  the  Court  as 
follows : — Upon  the  trial  of  this  cause,  no  objection  was  made  to  the  forma- 
lity of  the  convictions  :  I  doubt  whether  they  were  read,  and  for  this  rea- 
son ;  because,  by  the  state  I  have  of  them,  they  appear  different  from  the 
warrants;  for  the  convictions  take  no  notice  of  any  summons, (f)  nor  of  any 

(t)  Nor  that  the  defendant  made  default.  See  R.  v.  AUington,  2  Str.  GTS  ;  K.  v.  Vena- 
bles,  ib.  63U ;  R.  v.  Stone,  1  East,  649. 


CREPPSV.    BURDEN.  693 

informations,  nor  of  any  evidence("}')  upon  oath  given ;  though  the  warrants 
take  notice  of  a  summons,  of  the  defendant's  not  appearing  to  that  summons, 
of  an  information  Laid,  and  evidence  given  upon  oath.  This  objection  would 
have  gone  to  all  the  four  cases  equally,  but  at  the  trial,  no  objection  what- 
ever was  made  to  the  first  conviction  or  warrant.  But  the  objection  made 
was  this;  that,  allowing  the  first  conviction  and  warrant  to  be  good,  the  three 
others  were  an  excess  of  the  jurisdiction  of  the  justice,  and  beyond  it ;  for 
that  on  the  true  construction  of  the  stat.  29  Car.  2,  c.  7,  there  can  be  but 
one  ofi'ence,  attended  with  one  single  penalty,  on  the  same  day. 

In  answer  to  this  it  was  objected,  on  the  part  of  the  defendants,  that  no 
such  objection  could  be  taken  to  the  convictions  till  after  they  had  been 
quashed  in  this  Court ;  and  that  if  a  case  were  to  be  made  with  regard  to 
that,  it  must  be  taken  upon  the  question,  whether,  according  to  the  true 
construction  and  meaning  of  the  act,  the  party  could  be  guilty  of  repeated 
oflfences  on  one  and  the  same  day  ?  Therefore,  the  questions  stated  for  the 
opinion  of  the  Court  on  the  present  case  are,  first,  "  whether,  in  this  action, 
and  before  the  convictions  were  quashed,  an  objection  could  be  made  to 
their  legality  ?  If  the  Court  should  be  of  opinion  no  objection  could  be 
made,  then  a  nonsuit  to  be  entered  up  :  but  in  case  the  objection  might  be 
made,  then  2ndly  :  Whether  the  levy  made  under  the  three  last  warrants 
Could  be  justified  ?"  The  first  question  is,  "whether  any  objection  can  be 
made  to  the  legality  of  the  convictions  *before  they  were  quashed."  p:^or.fr-i 
In  order  to  see  whether  it  can,  we  will  state  the  objection  :  it  is  this ;  L  -' 
that  here  are  three  convictions  of  a  baker,  for  exercising  his  trade  on  one 
and  the  same  day ;  he  having  been  before  convicted  for  exercising  his  ordi- 
nary calling  on  that  identical  day.  If  the  act  of  parliament  gives  authority 
to  levy  but  one  penalty,  there  is  an  end  of  the  question,  for  there  is  no 
penalty  at  common  law.  On  the  construction  of  the  act  of  parliament,  the 
offence  is,  "  exercising  his  ordinary  trade  upon  the  Lord's  day  ;"  and  that, 
without  any 'fractions  of  a  day,  hours,  or  minutes.  It  is  but  one  entire 
offence,  whether  longer  or  shorter  in  point  of  duration  ;  so,  whether  it  consist 
of  one,  or  a  number  of  particular  acts.  The  penalty  incurred  by  this  offence 
is,  five  shillings.  There  is  no  idea  conveyed  by  the  act  itself,  that,  if  a  tailor 
sews  on  the  Lord's  day,  every  stitch  he  takes  is  a  separate  offence ;  or,  if  a 
shoemaker  or  carpenter  work  for  different  customers  at  different  times  on  the 
same  Sunday,  that  those  are  so  many  separate  and  distinct  offences.  There 
can  be  but  one  entire  offence,  on  one  and  the  same  day ;  and  this  is  a  much 
stronger  case  than  that  which  has  been  alluded  to,  of  killing  more  hares 
than  one  on  the  same  day :  killing  a  single  hare  is  an  offence ;  but  the  kill- 
ing ten  more  in  the  same  day  will  not  multiply  the  offence,  or  the  penalty 
imposed  by  the  statute  for  killing  one.  Here,  repeated  offences  are  not  the 
object  which  the  legislature  has  in  view  in  making  the  statute :  but  singly 
to  punish  a  man  for  exercising  his  ordinary  trade  and  calling  on  a  Sunday. 
Upon  this  construction,  the  justice  had  no  jurisdiction  whatever  in  respect 
of  the  three  last  convictions.  How  then  can  there  be  a  doubt,  but  that 
the  plaintiff"  might  take  this  objection  at  the  trial  ?  2ndly.  With  regard  to 
the  form  of  the  defence,  though  the  stat.  7  Jac.  1,  c.  5,  enables  justices  of 
peace  to  plead  the  general  issue,  and  give  the  special  matter  in  evidence ; 

(t)  See  R.  V.  Lovett,  7  T.  R.  152  ;  R.  v.  Theed,  2  Sir.  919  ;  R.  v.  Smith,  8  T.  R.  588. 


694 


SMITUS    LEADING     CASES. 


in  doing  so,  it  only  allows  tliem  to  give  that  in  cvitlencej  ■which  they  must 
before  have  pleuded;  and,  therefore,  they  must  still  justify.  But  what 
could  the  justification  have  been  in  this  case,  if  any  had  been  attempted  to 
be  set  up  ?  It  could  only  have  been  this  :  that,  because  the  plaintiff  had  been 
^oop-i  convicted  of  one  offence  on  that  day,  therefore  the  justice  had  convicted 
L  -^  him  *in  three  other  offences  for  the  same  act.  By  law  that  is  no  jus- 
tification :  it  is  illegal  on  the  face  of  it ;  and,  therefore,  as  was  very  rightly 
admitted  by  the  counsel  for  the  defendant  in  the  argument,  if  put  upon  the 
record  by  way  of  plea,  would  have  been  bad,  and  on  demurrer  must  have 
been  so  adjudged.  Most  clearly,  then,  it  was  open  to  the  plaintiff  upon  the 
general  issue,  to  take  advantage  of  it  at  the  trial.  The  question  does  not 
turn  upon  niceties ;  upon  a  computation  how  many  hours  distant  the  several 
bakings  happened;  or  upon  the  fact  of  which  conviction  was  prior  in  point 
of  time;  or  that  for  uncertaiuty  in  that  respect,  they  should  all  four  be  held 
bad :  but  it  goes  upon  the  ground,  that  the  offence  itself  can  be  committed 
only  once  in  the  same  day.  We  are,  therefore,  all  clearly  of  opinion,  that 
if  there  was  no  jurisdiction  in  the  justice,  the  same  might  have  appeared  at 
the  trial :  of  course,  we  are  of  opinion  that  this  objection  might  have  been 
made,  and  that  the  objection  itself,  in  point  of  law,  is  well  founded. 

Per  Cur.     Postea  to  be  delivered  to  the  plaintiff. 


r  ^--^Qr  1  *AccoRDiNG  to  Griffith  v. 
L  '^'^'^  J  Harries,  2  Mee.  &  VV.  335,  the 
rule  is  the  same  whetlier  the  conviction 
appear  on  the  face  of  it  to  be  for  an  of- 
fence not  within  the  niag-islrate's  juris- 
diction, or  to  be  tor  an  offence  within  the 
mawi-trate's  jurisdiction,  but  defective 
for  want  of  the  circumstances  necessary 
to  a  conviction  for  that  otience ;  see  Lan- 
caster V.  Greaves,  9  B.  &.  C.  628  ;  Mor- 
gan v.  Hughes,  2  T.  R.  225;  [Fearnley 
V.  Worthington,  1  Man.  &  Gr.  491]; 
Hardy  v.  Ryle,  9  B.  &  C.  603  ;  Groorae 
V.  Forrester,  5  M.  &,  S.  320;  or  of  a  suf- 
ficiently specific  statement  of  them, 
Newman  v.  Earl  of  Hardvvicke,  8  Ad.  & 
Ell.  127;  [R.  v.  Read,  9  Ad.  &  Ell. 
619];  for,  as  was  observed  in  Lancaster 
V.  Greaves,  though  the  conviction  is  con- 
clusive upon  matter  of  fact,  and,  if  the 
defendant  mean  to  rely  on  matter  of  fact, 
he  should  make  his  defence  at  the  time, 
the  rule  is  not  so  as  to  matter  of  law. 
So  if  the  conviction  of  two  persons  be 
joint  for  o&ences  ex  necessilale  rei  seve- 
ral, it  will  be  void,  and  [subject  now  to 
the  provisions  of  the  11  &  12  V' ict.  c.  44, 
s.  2]  they  may  sue  in  trespass  if  it  be 
acted  upon.  Morgan  v.  Brown,  4  Ad. 
&  E\\.  515.  [And  the  rule  is  the  same 
in  the  case  of  a  sinofle  conviction  of  one 


person  for  two  distinct  ofl'ences,  Newman 
V.  Bendyshe,  10  Ad.  &  Ell.  11.]  But, 
"a  conviction  by  a  magistrate  who  has 
jurisdiction  over  the  subject-matter  is,  if 
no  defects  appear  on  the  face  of  it,  con- 
clusive evidence  of  the  facts  stated  in 
it ;"  Brittain  v.  Kinnaird  et  al.,  1  B.  & 
B.  482  ;  per  Dallas,  C.  J.  In  that  case, 
trespass  was  brought  against  justices  for 
taking  a  boat;  in  iheir  defence  they  re- 
lied on  a  conviction  which  warranted 
them  in  doing  so.  The  plaintiff  offered 
evidence  to  controvert  the  facts  stated 
in  the  conviction,  but  it  was  held  not  to 
be  admissible.  Accord.  Basten  v.  Carew, 
3  B.  &  C.  649;  Fawcett  v.  Fowles,  7  B. 
&  C.  394  ;  Gray  v.  Cookson,  16  East,  13; 
Lowther  v.  Earl  Radnor,  8  East,  113: 
Ashcroft  V.  Bourne,  3  B.  &  Ad.  684; 
and  the  same  attribute,  viz.,  that  of  be- 
ing conclusive  evidence  of  the  facts  stated 
therein,  and  properly  tending  thereto, 
seems  to  have  been  thought  to  belong  to 
every  adjudication  emanating  from  a 
competent  tribunal ;  Aldridge  v.  Haines, 
2  B.  (t  Ad.  395;  and  the  cases  cited  by 
Coleridge  arguendo. 

Even  when  the  conviction  has  been 
quashed,  the  party  convicted,  in  an  ac- 
tion against  the  justices,  which  must  be 
on  the  case,  will  only  obtain  two  pence 


I 


CREPrS    V.    DURDEN. 


695 


damaofes,  besides  the  amount  of  the  pen- 
alty if  levied,  and  no  costs  of  suit,  unless 
he  expressly  aver  malice  and  want  of 
probable  cause;  nor  will  he  recover  the 
amount  of  the  penalty  if  the  defendant 
prove  him  to  have  been  guilty  of  the  of- 
fence of  which  he  has  been  convicted, 
and  tliat  he  has  undergone  no  greater 
punishment  than  is  by  law  assigned 
r  *'^*!fi/  1  t''^'"<'^°>  st'^'-.  43  G.  3,  c.  141. 
'-  -I  'And  he  must  at  the  trial  prove 

not  merely  his  own  innocence  of  the  of- 
fence of  which  he  was  convicted,  but  also 
what  took  place  before  the  justice  at 
the  time  of  conviction,  in  order  that  it 
may  appear  whether  there  was  probable 
cause  or  no.  Burley  v.  Bethune,  5 
Taunt.  580. 

[See  Baylis  v.  Strickland,  1  Man.  &. 
Gr.  591.  But  the  stat.  43  G.  3,  c.  141, 
is  now  repealed  by  the  11  &  12  Vict., 
c.  44,  entitled  "  An  Act  to  protect  Jus- 
tices of  the  Peace  from  vexatious  actions 
for  acts  done  by  them  in  the  execution 
of  their  office,"  the  first  section  of  which 
provides  that  every  action  to  be  brought 
against  any  justice  after  the  2nd  of  Oc- 
tober, 1848,  for  any  act  done  by  him  in 
the  execution  of  his  duty  as  such  justice, 
as  to  any  matter  within  hiff  juriadiction, 
shall  be  on  the  case,  and  the  declaration 
shall  allege  the  act  to  have  been  done 
raaliciously  and  without  reasonable  and 
probable  cause,  and  if  such  allegation 
be  not  proved  upon  the  plea  of  the  gene- 
ral issue,  the  plaintiff  shall  be  nonsuit, 
or  a  verdict  shall  be  given  for  the  defen- 
dant. But  when  the  act  is  done  by  the 
justice  in  a  matter  of  which  he  has  no 
jurisdiction  or  where  he  exceeds  his  ju- 
risdiction, he  may  by  sect.  2  be  sued  as 
before  the  statute,  except  where  the  act 
complained  of  has  been  done  under  a 
conviction  or  order,  in  which  case  "  the 
conviction"  (sic  in  statute)  must  be  first 
quashed,  or  if  done  under  a  warrant  for 
appearance  followed  by  a  conviction  or 
order,  the  conviction  or  order  tnust  be 
first  quashed,  but  if  not  followed  by  con- 
viction or  order,  and  granted  after  infor- 
mation for  an  indictable  offence,  or  after 
service  of  summons  and  non-attendance, 
no  action  can  be  maintained.  Sect.  3 
protects  a  justice  bona  fide  granting  a 
warrant  upon  the  conviction  of  another 
justice,  which  is  defective  for  want  of 
jurisdiction,  and  makes  the  convicting 
justice  alone  liable.  Sect.  4  prohibits 
actions  by  parties  rated  to  the  poor, 
though  not  liable  to  be  rated,  or  in  re- 
spect of  any  delect  in  such  rate,  against 


the  parties  issuing  a  distress  warrant 
thereon,  and  furtlier  provides  that  tlie 
exercise  of  discretionary  powers  vested 
in  a  justice  by  statute,  shall  not  furnish 
ground  of  action.  By  sect.  5,  a  justice 
obeying  a  rule  of  the  Court  of  Queen's 
Bench  is  not  liable  to  be  sued  in  respect 
of  such  obedience.  Sect.  6  makes  the 
confirmation  of  a  conviction  or  order  on 
appeal  a  protection  to  a  justice  who  is- 
sues a  warrant  upon  them  either  before 
or  after  such  confirmation,  and  sect.  7 
empowers  a  judge  to  set  aside  the  pro- 
ceedings in  any  action  brought  against  a 
justice  contrary  to  the  provisions  of  this 
act;  so  every  action  against  justices 
must  be  brought  within  six  months  after 
the  act  complained  of,  (sect.  8,)  but 
not  until  after  a  month's  notice  in  writ- 
ing, &c.  (sect.  9);  sect.  10  makes  the 
venue  in  the  action  *local,  r*oa7  i 
with  an  option  to  the  defend-  '-  '  -' 
ant  to  plead  the  general  issue,  and 
under  it  to  prove  the  special  facts;  also, 
if  he  pleases,  he  has  the  privilege  of  ex- 
emption from  the  jurisdiction  of  the 
county  court.  By  sect  11a  recovery  of 
less  than  the  amount  tendered  or  paid 
into  court,  gives  the  defendant  a  verdict, 
with  the  security  of  the  sum  paid  into 
court  for  his  costs;  and  by  sect  12  the 
plaintiff  will  have  a  verdict  against  him, 
or  be  nonsuit,  for  a  non-compliance 
with  the  above-mentioned  preliminaries. 
Sect.  13  provides  that  the  plaintiff  shall 
not  in  any  case  recover  more  than  two 
pence  damages  where  it  appears  that  he 
was  guilty  of  the  offence  of  which  he 
was  convicted,  or  liable  by  law  to  pay 
the  sum  ordered  to  be  paid,  and  that  he 
has  undergone  no  greater  punishment 
than  that  assigned  by  law  to  the  offence 
of  which  he  was  convicted,  or  for  non- 
payment of  the  money  ordered.  By 
sect.  14  the  plainlifl'  is  to  have  costs,  as 
before  the  act,  and  where  the  act  com- 
plained of  is  stated  to  have  been  done 
maliciously,  «Sz,c.,  they  are  to  be  taxed  as 
between  attorney  and  client,  and  in  all 
cases  where  there  is  judgment  against 
him,  he  is  to  pay  costs  as  between  attor- 
ney and  client. 

Such  is  a  short  summary  of  the  provi- 
sions of  this  important  statute,  which 
seems  to  afford  complete  protection  to 
justices  acting  bona  fide  in  the  execu- 
tion of  their  office.] 

The  conviction  may  be  drawn  up  at 
any  time  before  it  is  returned  to  the 
quarter-sessions,  so  that,  though  it  may 
be  informal  at  first,  the  magistrate  has 


696 


smith's   leading  cases. 


an  opportunity  of  amending  it;  and  it 
has  been  declared  to  be  not  only  legal 
but  laudable  so  to  do,  R.  v.  Barker, 
1  East,  186.  [Unless,  indeed,  it  have 
been  quashed  or  its  invalidity  otherwise 
ascertained  by  the  decision  of  a  superior 
court,  as  for  instance,  by  the  Queen's 
Bench  on  Habeas  Corpus,  Chancy  v. 
Payne,  1  Q.  B.  72.5.  But  it  would  seem 
that  after  an  invalid  conviction  has  been 
filed  at  sessions,  another  might  be  sub- 
stituted. Re  Richards,  13  L.  J.  5  Q,.  B. 
926.  See  11  &  12  Vict.  c.  43,  s.  14.] 
But  the  rule  is  different  in  case  of  an 
order;  R.  v.  Justices  of  Cheshire,  .5  B. 
&  Ad.  439;  [but  see  now  the  stat.  11  & 
12  Vict.  c.  43,  s.  14.] 

In  Griffith  v.  Harries,  2  Mee.  &  W. 
33.5,  it  was  stated  by  Baron  Parke,  that 
in  a  case  of  Dimsdale  v.  Clarke,  a.  d. 
1829,  he  and  Mr.  J.  Littledale  differed 
from  Mr.  J.  Bayley  on  the  question 
whether  it  be  necessary  that  the  magis- 
trate's jurisdiction  should  appear  affir- 
mativehj  on  the  conviction,  Air,  J.  Bay- 
ley  thinking  that  it  need  not ;  but  see 
Day  V.  King.  5  Ad.  &  Ell.  359;  [R.  v. 
Lewis,  8  Ad.  &  Ell.  885.] 

As  the  law  regarding  summary  con- 
victions before  justices  is  of  great  and 
daily-increasing  importance,  on  account 
of  the  immense  variety  of  subjects  which 
fall  within  this  sort  of  jurisdiction,  it 
r*3ft7/)l  seems  *advisable  to  add  a  few 
'-  -■    general  remarks  on  it  to  the 

notes  which  were  appended  to  this  case 
in  the  former  edition. 

A  conviction  before  a  justice  or  jus- 
tices of  the  peace  without  the  interven- 
tion of  a  jury  is  always  under  some  sta- 
tute; the  common  law  knows  of  no  such 
proceeding.  It  is  regarded  by  the  courts 
with  no  particular  favour,  and  it  is  ne- 
cessary that  the  justice  should,  on  the 
record  of  it,  shew  that  he  has  proceeded 
recto  ordine ;  for  there  are  certain  things 
which  every  conviction  must  contain, 
unless  some  Act  of  Parliament  have  ex- 
pressly dispensed  with  them. 

These  are:  1.  The  information,  which. 
is  absolutely  essential  in  all  cases,  ex- 
cepting where  the  justice  is  empowered 
to  convict  on  view  (see  1  Wm.  Saund. 
262,  note,  Jones  v.  Owen,  2  D.  &  R. 
600).  [It  is  the  foundation  of  his  juris- 
diction over  the  case,  without  which  his 
proceeding  would  be  void  (see  R.  v. 
Bolton,  1  Q.  B.  66,)  and  the  same  prin- 
ciple applies  to  other  limited  jurisdic- 
tions created  by  statute:  thus,  a  present- 
ment is  the  foundation  of  the  jurisdiction 
of  commissioners  of  sewers,  and  if  there 


be  not  one  their  rate  is  void,  Wingate 
V.  VVaite,  6  Mee.  &  W.  739;  and  see 
judgment  in  Doe  v.  Bristol  and  Exeter 
Railway  Co.,  6  Mee,  &  W.  320;  R.  v. 
Croke,  Cowp.  26;  and  Christie  v.  Un- 
win,  11  Ad.  &  Ell.  373,  where  the  same 
principle  was  held  to  apply  even  to 
exercise  of  an  authority  conferred  by 
statute  on  the  chancellor;  see  also  R. 
V.  Guardians  of  Hartley  Union,  1  Q.  B. 
677.]  The  information  need  not  have 
been  in  writing  or  even  on  oath,  unless 
expressly  directed  by  an  Act  of  Parlia- 
ment to  be  so,  Basten  v.  Carew,  3  B.  &, 
C.  649.  [By  the  11  &  12  Vict.  c.  43,  s. 
10,  whenever  the  justice  issues  a  war- 
rant in  the  first  instance  without  sum- 
mons, the  information  must  be  upon 
oath.]  Great  care,  must,  however,  be 
taken  in  framing  it,  for  it  is  the  founda- 
tion of  the  magistrate's  jurisdiction; 
[Cave  V.  Mountain,  1  Man.  &  Gr.  2.57; 
Carpenter  v.  Mason,  12  Ad.  &  Ell.  629. 
But  when  the  act  gives  no  particular 
form,  it  is  sufficient  if  the  jurisdiction  is 
substantially  made  apparent  in  the  docu- 
ments, or  can  be  inferred  therefrom, 
'I'aylor  v.  Clemson,  per  Tindal,  L.  C.  J., 
2  Q.  B.  1036.]  Nor  will  the  evidence 
supply  omissions  in  it,  for  the  office  of 
the  evidence  is  to  prove,  not  to  svpply  a 
legal  charge  (R.  v.  Wheatmain,  Dougl. 
2.32;  Wiles  v.  Cooper,  3  Ad.  &  Ell, 
528).  It  must  state  the  day  on  which  it 
is  exhibited;  and  if  that  day  be  incon- 
sistent with,  or  insufficient  to  warrant 
the  conviction,  it  will  vitiate,  R.  v.  Kent, 
2  Lord  Raym.  1546.  It  must  state  the 
place  of  exhibiting,  that  the  magistrate 
may  appear  to  have  been  acting  within 
his  jurisdiction;  see  R.  v.  Kite,  1  B.  & 
C.  101;  [and  R.  v.  Martin,  2  Q.  B. 
1037;  Re  Peerless,  1  Q.  B.  143.]  The 
name  of  *the  informer  should,  r:i;qq7  -i 
it  seems,  be  set  forth,  that  the  •-  ''^*''^J 
defendant  may  know  who  is  accusing 
him  (see,  however,  Paley,  80,  note);  in 
some  cases,  at  all  events,  it  is  necessary, 
see  R,  V.  Stone,  2  Lord  Raym.  1515.  It 
must  state  the  name  and  style  of  the  con- 
victing justice  or  justices,  and  show  that 
he  is  acting  within  his  jurisdiction.  See 
Kite's  case,  1  B.  &  C.  101  ;  [R,  v.  Mar- 
tin, 2  Q.  B.  10.36;  Re  Peerless,  2  Q. 
B.]  Thus  it  will  not  be  enough  to  stale 
that  he  is  a  justice  in  the  county,  with- 
out stating  that  he  is  of  or  for  the 
county,  R.  v.  Dobbyn,  Salk.  473;  the 
name  of  the  offender  or  offenders,  R.  v, 
Harrison,  8  T.  R.  .508;  the  time  of  the 
offence,  so  that  the  information  may  ap- 
pear to  have  been  laid  in  due  time,  R.  v. 


CREPPS    V.    BURDEN. 


697 


Pullen,  Salk.  369;  R.  v.  Chandler,  Salk. 
378 ;  R.  V.  Crisp,  7  East,  389 ;  the  place, 
that  it  may  appear  to  have  been  williin 
the  justice's  jurisdiction,  Kite's  case,  1 
B.  «Si  C.  101,  et  notam.  [The  serious 
consequences  of  an  error  in  framing  the 
information  seems  much  diminished,  if 
not  entirely  done  away  with,  by  11  &• 
12  Vict.  c.  43.  See  proviso  to  sect.  1, 
also  sect.  9.]  Lastly,  the  charge  must 
set  forth  with  proper  and  sufficient  cer- 
tainty, and  must  contain  every  ingre- 
dient necessary  to  constitute  the  offence, 
leaving  nothing  to  mere  inference  or 
intendment.  "A  conviction,"  to  use  the 
words  of  Lord  Holt,  "  must  be  certain, 
and  not  taken  by  collection."  R.  v. 
Fuller,  1  Lord  Raym.  509 ;  R.  v.  Tre- 
lawney,  1  T.  R.  222.  Generally  speak- 
ing, it  is  sufficient  to  state  the  offence 
in  the  words  of  the  act  creating  it;  see 
R.  V.  Speed,  1  Lord  Raym.  583;  Davis 
V.  Nest,  6  C.  &  P.  167;  Exparte  Pain, 
5  B.  &  C.  251.  Cases,  however,  may 
occur  in  which  the  words  of  the  statute 
are  so  general  as  to  render  some  more 
certainty  in  the  conviction  necessary ; 
per  Denison,  J.,  R.  v.  Jarvis,  1  Burr. 
1.54;  Exparte  Hawkins,  2  B.  &  C.  31 ; 
R.  V.  Perrott,  3  M.  &  S.  379.  Excep- 
tions in  the  statute  creating  the  offence 
should  be  negatived  where  they  appear 
in  the  clause  creating  the  offence ;  R. 
V.  Clarke,  1  Covvp.  35 ;  R.  v.  Jukes,  8 
T.  R.  542 ;  though  it  is  otherwise  when 
they  occur  by  way  of  proviso  in  subse- 
quent clauses  or  statutes;  Cathcart  v. 
Hardy,  2  M.  &  S.  534;  Spieres  v. 
Parker,  1  T.  R.  141 ;  R.  v.  Hall,  1  T. 
R.  320;  [see  now  11  &  12  Vict.  c.  43, 
proviso  to  sect.  14.]  In  analogy  to  in- 
dictments, it  appears  right  that  the  in- 
formation should  conclude  contra  for- 
mam  statiUL  However,  there  are  many 
cases  where  technical  words,  that  would 
be  necessary  in  an  indictment  for  the 
same  offence,  are  unnecessary  in  a  con- 
viction; see  R.  V.  Chandler,  1  Lord 
Raym.  581  ;  R.  v.  Marsh,  2  B.  &  C. 
717.  [Although  the  information  must, 
in  order  to  give  the  magistrate  jurisdic- 
tion, state  an  offence  of  which  he  has  a 
right  to  take  cognizance,  it  need  not 
state  evidence  sufficient  to  support  such 
r  *'^ft7  7  1^  *charge,  for  it  is  the  charge 
L  -'  which  gives  the  jurisdiction, 

Cave  V.  Mountain,  1  Man.  «fc  Gr.  261; 
R.  V.  Bolton,  1  Q.  B.  66.] 

2.  It  must  appear  that  the  defendant 
was  summoned  or  brought  up  by  war- 
rant, for  it  would  be  contrary  to  natural 


justice  to  convict  without  giving  him  an 
opportunity  of  being  heard,  Painter  v. 
Liverpool  Gas  Co.,  3  Ad.  &  Ell.  433; 
[and  see  R.  v.  Totness,  7  Q.  B.  690.  In 
some  cases  the  act  requires  a  summons 
of  a  particular  kind,  and  in  tiiose  the 
justices  have  no  jurisdiction  if  it  be  omit- 
ted ;  thus,  where  the  summons  was  to 
be  ten  days  at  least  before  conviction, 
and  it  was  served  on  the  20th  to  appear 
on  the  30th,  the  conviction  was  held  void, 
Mitchell  v.  Foster,  9  Dowl.  527 ;  12  Ad. 
&  Ell.  472.  Where  there  is  no  statuta- 
ble provision]  the  summons  should  give 
him  reasonable  time,  R.  v.  Mallinson,  2 
Burr.  679;  R.  v.  Johnson,  1  Str.  201. 
If,  indeed,  he  appear  of  his  own  accord, 
that  will  dispense  with  a  summons,  R. 
V.  Stone,  1  East,  649.  See  R.  v.  Jus- 
tices of  Wiltshire,  Mich.  1840,  B.  R.  If 
a  summons  be  ineffectual,  a  warrant 
may,  at  least  in  some  cases,  be  issued  ; 
see  Bane  v.  Methuen,  2  Bing.  63;  but 
then  the  information  ought  to  have  been 
upon  oath ;  see  R.  v.  Payne,  Comberb. 
359;  per  Holt,  Barnard,  34;  and  it  is 
the  opinion  of  Mr.  Paley  that  a  warrant 
(in  the  absence  of  express  enactment) 
lies  only  when  the  offence  involves  some 
breach  of  peace,  Paley,  37;  [see  now  11 
&  12  Vict.  c.  43,  ss.  1,2,13.] 

3.  The  appearance  or  non-appearance 
of  the  defendant  should  be  stated.  If, 
being  summoned,  he  do  not  appear,  he 
may  nevertheless  be  convicted,  for  other- 
wise any  defendant  might  escape  merely 
by  not  appearing,  R.  v.  Simpson,  1  Str. 
44;  [and  see  11  &  12  Vict.  c.  43,  ss.  2, 
13.] 

4.  If  the  defendant  confess,  that  should 
be  stated,  and  there  is  then  no  necessity 
for  evidence,  R.  v.  Hall,  1  T.  R.  320; 
R.  v.  Clarke,  Cowp.  35;  even  though 
the  statute  direct  the  conviction  to  be 
"  on  the  oath  of  one  or  two  credible  wit- 
nesses:" see  R.  v.  Hall,  ubi supra;  R.  v. 
Gage,  Str.  546,  and  1  Wm.  Saund.  262, 
N.  1;  [see  11  &  12  Vict.  c.  43,  s. 
14.] 

5.  If  the  defendant  do  not  confess,  the 
evidence  must  be  set  forth.  It  should  be 
given  in  his  presence;  but  if  the  evi- 
dence and  appearance  be  stated  as  on 
the  same  day,  that  will  be  presumed,  R. 
v.  Swallow,  8  T.  R.  284.  There  is  a 
distinction  in  this  respect  between  orders 
and  convictions.  On  a  conviction  the 
evidence  must  be  set  out,  in  order  that 
the  superior  court  may  judge  of  it,  R.  v. 
Vipont,  Burr.  1163:  to  slate  that  the 
offence  was  fully  and  duly  proved  is  in- 


698 


SMITHS  LEADING  CASES. 


sufficient,  R.  v.  Baker,  Str.  31G.  In  an 
order  it  is  sufficient  to  state  tiic  result 
of  it;  sec  R.  v.  Lovat,  7  T.  R.  152;  R. 
V.  Justices  of  Cliesliire,  5B.  &  Ad.  '139  ; 
r^^^^  ,  R.  V.  Green,  10  *xMoJ.  212;  R. 
L  ^^'(^  \  V.  Mar.^li,  2  B.  &  C.  717.  It 
is  true  that  a  conviction  is  good  if  it  por- 
fess  to  set  out  the  evidence,  although  in 
the  very  words  of  a  statute ;  but  if  the 
magistrate  so  framing  his  conviction 
alter  its  effect  and  state  it  as  proving 
more  than  it  really  did,  he  subjects  him- 
self to  a  criminal  information,  R.  v. 
Pearse,  9  East,  358;  and  it  is  said  that 
in  a  case  of  R.  v.  Allen  cited  in  Paley 
on  Convictions,  the  magistrate  was  ad- 
vised in  such  case  to  draw  up  a  fresh 
conviction ;  see  5  D.  &  R.  490,  and  see 
Re  Rix,  4  D.  &  R.  3-52.  However,  it  is 
not  necessary  that  every  word  used  by 
the  witnesses  should  be  stated,  R.  v. 
Warneford,  5  D.  &  R.  490.  As  the  rea- 
son for  setting  out  the  evidence  is  that 
the  superior  court  may  judge  of  it,  it 
follows  that,  if  the  evidence  do  not  war- 
rant the  conviction,  the  latter  will  be 
bad.  R.  v.  Ransley,  3  D.  &  R.  572 ;  R. 
V.  Smith,  8  T.  R.  538.  But  it  is  not  ne- 
cessary, in  order  to  warrant  the  convic- 
tion, that  the  justices  should  clearly  have 
come  to  a  right  decision  in  point  of  fact. 
If  there  was  evidence  from  which  any 
reasonable  person  might  have  drawn  the 
same  inference  as  they  did,  that  will 
do,  R.  v.  Glossop,  4  B.  &.  Ad.  616 ;  Anon. 
1  B.  &  Ad.  382.  Indeed,  the  magistrate 
being  substituted  for  a  jury,  his  decision 
cannot  be  said  to  be  wrong  if  the  evi- 
dence was  such  as  might  have  been  left 
to  a  jury,  and  from  which  they  might 
have  drawn  the  same  conclusion,  R.  v. 
Davis,  6  T.  R.  178. 

6.  There  must  be  a  judgment  and  an 
adjudication  of  the  proper  forfeiture  ;  see 
R.  V.  Harris,  7  T.  R.  238;  R.  v.  Salo- 
mons, I  T.  R.  251;  R.  v.  Ilawkes,  Str. 
858.  There  is,  however,  no  particular 
form  of  judgment,  R.  v.  Thompson,  2  T. 
R.  18.  And  the  adjudication  may  be 
good  in  part  though  it  exceed  the  juris- 
diction of  the  justices,  provided  the  ex- 
cess be  severable,  R.  v.  Justices  of  Wilt- 
shire, Mich.  1840,  B.  R. ;  R.  v.  St. 
Nicholas,  3  Ad.  &-  Ell.  79.  The  appli- 
cation of  the  penally,  where  the  act 
directs  any  mode  of  applying  it,  is  a  ne- 
cessary part  of  tlie  judgment,  [Chaddock 
v.  VVilbraham,  9  Feb.  1848,  17  L.  J.  C. 
B.  M.  C.  79.]  It  is  sufficient  in  most 
cases  to  state  that  it  is  to  be  distributed 
or  paid  according  to  the  form  of  the  sta- 


tute in  such  case  made  and  provided 
But,  when  the  statute  leaves  the  appli- 
cation discretionary,  the  mode  in  which 
the  discretion  was  exercised  ought  to  be 
stated,  R.  v.  Dempsey,  2  T.  R.  96. 
Where  the  justice  is  to  give  costs  or 
charges,  he  must  ascertain  their  amount 
in  the  conviction,  R.  v.  Symons,  1  East, 
189;  R.  V.  St.  Mary,  13  Ea.-t,  57;  [and 
as  to  costs  see  now  11  &-  12  Vict.  c.  43, 
s.  18.] 

Lastly,  the  conviction  must  be  sub- 
scribed, dated,  and  sealed  ;  see  R.  v. 
Elwell,  Str.  794;  Basten  v.  Carew,  3  B. 
&  C.  649 ;  [and  see  11  »fc  12  Vict.  c.  43, 
s.  14.]  The  reason  of  dating  r  ^ogy^i 
it  is,  that  it  may  *appear  when  '-  '^  ^ 

it  was  made;  and  if  that  do  appear,  that 
is  enough,  and  an  impossible  date  miglit 
be  rejected,  R.  v.  Picton,  2  East,  193: 
sec  R.  V.  Bellamy,  1  B.  &  C.  500. 

The  above  observations  apply  to  con- 
victions in  general ;  but  a  conviction  is 
the  creature  of  the  statute  law  ;  and,  if 
the  statute  prescribe  any  particular  form 
for  it,  no  matter  what,  that  form  must 
be  strictly  pursued,  Davison  v.  Gill,  1 
East,  72;  Goss  v.  Jackson,  3  Esp.  198. 
[See  11  &  12  Vict.  c.  43,  s.  17.] 

It  is  obvious  that,  as  so  much  precision 
is  required  in  drawing  up  a  conviction, 
magistrates  and  their  clerks  must  have 
been  under  considerable  difficulty,  and 
must  have  run  considerable  risk  in  fram- 
ing it.  For  their  ease  and  protection, 
Stat.  3  G.  4,  c.  23,  has  provided  a  gene- 
ral form,  in  which,  sec.  1  enacts  that  it 
may  be  drawn  up  where  no  particular 
form  has  been  directed. 

[The  mode  of  proceeding  before  Jus- 
tices of  the  Peace  in  cases  of  summary 
convictions  is  now  regulated  by  tlie  re- 
cent statute  11  &  12  Vict.  c.  43,  entitled 
"An  Act  to  facilitate  the  performance 
of  the  duties  of  Justices  of  the  Peace  out 
of  sessions  within  England  and  Wales, 
with  respect  to  summary  convictions  and 
orders,"  which  came  into  operation  on 
the  2nd  of  October,  1848,  and  clearly 
defines,  by  positive  enactment,  the  duties 
of  justices  in  such  proceedings,  whilst  by 
giving  short  forms  applicable  to  all  stages 
of  these  proceedings  including  convic- 
tions, and  doing  away  with  the  effect  of 
variances  and  defects  both  in  substance 
and  form  in  the  proceedings  themselves, 
it  greatly  facilitates  the  discharge  of 
those  duties.  A  short  summary  of  the 
statute  will  enable  the  reader  to  judge 
how  far  the  former  state  of  the  law  has 
been  affected  by  its  provisions.     The  act 


CREPPS    V.    BURDEN. 


G99 


repeals  amo;igst  other  statutes  the  above 
act  3  G.  4,  c.  *-23,  and  by  section  17,  pro- 
vides that  t!ie  forms  of  convictions  and 
orders  in  the  scliedule  may  be  used  in 
all  cases  of  convictions  and  orders  under 
the  authority  of  statutes  hitherto  passed, 
whetiier  any  particular  form  may  have 
been  tliereiii  given  or  not,  and  under  all 
future  statutes  not  giving-  a  particular 
form  of  conviction  or  order.  The  first 
section  directs  that  in  all  cases  where  an 
information  (which  need  not  be  on  oath 
unless  a  warrant  issues  in  the  first  in- 
stance, sect.  10.)  is  laid  before  a  justice 
or  justices,  or  complaint  made  (which 
need  not  be  in  writing  unless  the  statute 
require  it,  sect.  8,)  he  may  issue  a  sum- 
mons according  to  the  form  in  the  sche- 
dule, and  by  sect.  2,  in  case  of  non-ap- 
pearance, upon  proof  on  oath  of  due 
service  of  the  summons,  ivhul  shall  be 
deemed  by  the  justice  a  reasonable  time 
before  the  appointed  day,  he  may,  upon 
the  information  or  complaint  being  sub- 
r*o-—  -1  stantiated  on  oath,  issue  his 
L  si  warrant  ^according  to  the  form 
in  the  schedule;  or  in  cases  of  convic- 
tions, where  the  original  information  is 
upon  oath,  he  may  issue  such  warrant  in 
the  first  instance,  or  in  cases  where  a 
summons  issues  without  appearance, 
upon  proof  on  oath  of  due  service,  a  rea- 
sonable time  (not  as  in  case  of  issuing  a 
warrant  what  shall  be  deemed  by  the 
justice  a  reasonable  time)  before  the  day 
appointed;  he  may  proceed  exparte,  and 
adjudicate,  and  it  is  provided  by  sect.  1, 
tiiat  no  objection  shall  be  allowed  to  any 
information,  complaint,  or  summons  for 
any  alleged  defect  therein  "  in  substance 
or  in  form," — or  for  any  variance  in  the 
evidence;  but  if  considered  by  the  jus- 
tice prejudicial  to  the  defendant,  the  case 
may  be  adjourned.  Sect.  3  contains  a 
similar  provision  as  to  warrants,  with 
a  similar  power  of  postponement,  and 
in  the  meanwhile  commitment  or  en- 
largement upon  recognizances  according 
to  forms  in  the  schedule.  Sect.  4  directs 
the  mode  in  which  the  ownership  of  pro- 
perty is  in  certain  cases  to  be  stated. 
Sect.  5  makes  aiders  and  abettors  in  the 
commission  of  offences  punishable  by 
sunmiary  conviction,  liable  to  the  same 
punishment  as  principals.  Sect.  6  ex- 
tends tiie  provisions  of  11  &  12  Vict.  c. 
42,  (ante,  386-387)  to  this  act.  Sect.  7 
gives  the  justice  power  to  enforce  the 
attendance  ofany  material  witness  with- 
in liis  jurisdiction,  in  the  same  manner 
as  a  defendant,  and  to  commit  for  seven 


days  any  witness  refusing  to  be  sworn 
or  to  answer.  Sect.  11  gives  six  montiis 
after  the  cause  has  arisen,  in  the  ab- 
sence of  special  enactment,  as  the  time 
for  complaint  or  information.  Sects.  12, 
13,  14,  &  16  contain  precise  directions 
as  to  the  mode  in  which  the  hearing 
upon  compkiint  and  information  is  to  be 
conducted.  Sect.  1.5  makes  prosecutors 
and  complainants, not  havinga  pecuniary 
interest  in  the  result,  competent  wit- 
nesses. The  18th  sect,  enables  the  jus- 
tice to  order  costs  either  to  the  prosecu- 
tor or  complainant,  or  to  the  defendant. 
Sects.  19,  20,  21,  22,  23,  24,  25,  20,  27, 
28,  29,  31,  relate  to  the  mode  in  which 
penalties  imposed,  and  costs  ordered  by 
justices  are,  under  various  circum- 
stances, to  be  recovered  and  paid.  Sect. 
32  enacts  that  the  forms  in  the  schedule 
shall  be  deemed  good,  valid,  and  suffi- 
cient in  law.  Sects.  33,  34  regulate 
jurisdictions  of  metropolitan  police,  and 
stipendiary  magistrates;  also  of  the  Lord 
Mayor  and  Aldermen  of  London.  Sect. 
35  provides  that  the  act  shall  not  extend 
to  orders  of  removal,  orders  as  to  luna- 
tics, nor  to  informations  concerning  the 
Excise,  Customs,  Stamps,  Taxes,  or  Post 
Office,  nor  to  orders,  &.c.  in  matters  of 
bastardy,  nor  to  proceedings  under  acts 
regulating  the  labour  of  children  in  fac- 
tories, &c.] 

If  a  conviction  be  void  on  the  face  of 
it,  it  follows,  as  of  course,  that  no  act 
done  in  pursuance  of  it  can  be  justified, 
and  that  any  *seizure  of  per-  r  ^.oa-yt  ~i 
son  or  property  under  it  will  '-  ■' 

form  the  subject-matter  of  an  action,  as 
will  be  seen  in  the  principal  case;  [sub- 
ject, however,  now  to  the  provisions  of 
11  &  12  Vict.  c.  42,  ante,  386-387.]  But 
besides  this,  there  are  two  modes  of  im- 
peaching it,  first  by  appeal,  secondly  by 
certiorari. 

An  appeal,  like  a  conviction,  is  the 
creature  of  the  statute  law,  and  never 
lies  unless  where  it  is  given  by  express 
terms,  R.  v.  The  Recorder  of  Ipswich, 
8  Dowl.  103;  R.  v.  Hanson,  4  B.  &  Ad. 
521.  The  rule  with  regard  to  a  certi- 
orari is  the  very  converse.  It  always 
lies  unless  expressly  taken  away,  R.  v. 
Abbot,  Dougl.  553  ;  and  it  requires  very 
strong  words  to  do  so;  for  even  where 
a  statute  gave  an  appeal  to  the  sessions, 
and  directed  that  it  should  he  finally  de- 
termined there,  and  no  other  court  should 
intermeddle  with  the  causes  of  appeal,  it 
was  held  that  a  certiorari  lay  after  the 
appeal.     R,  v.  Moreley,  1  W.  El.  231  ; 


700 


smith's  leading   cases. 


R.  V.  Jukes,  3  T.  R.  442  ;  see  R.  v.  Jus- 
tices of  West  Riding,  Yorkshire,  1  Ad. 
&  Ell.  575  ;  where  it  was  taken  away, 
R.  V.  Fell,  1  B.  &  Ad.  3S0.  [R.  v.  Jus- 
tices of  Lancashire,  11  Ad.  &  Ell.  144^ 
where  an  order  in  pursuance  of  a  statute 
leaving  the  certiorari,  hut  made  by  a 
town  council  empowered  by  5  &  6  VV. 
4,  c.  76,  which  takes  it  away,  was  held 
removable  by  certiorari].  The  reason 
of  this  is,  that  it  is  an  extremely  bene- 
ficial writ,  being  the  medium  through 
which  the  Court  of  Queen's  Bench  ex- 
ercises its  corrective  jurisdiction  over 
the  summary  proceedings  of  inferior 
courts.  Even  where  it  is  taken  away 
in  express  terms,  they  do  not  include 
the  crown  unless  named,  R.  v.  Davies,  5 
T.  R.  626;  R.  v.  Allen,  15  East,  333; 
R.  V.  Boulbee,  4  Ad.  &.  Ell.  498.  Nay 
it  is  said  that  the  Attorney-general,  on 
behalf  of  the  Crown,  might  in  such  case 
obtain  the  writ  for  a  defendant;  see  1 
East,  303,  note,  and  the  authorities  there 
cited. 

A  certiorari  is  a  writ,  issuing  out  of 
the  Court  of  Chancery,  or  the  Court  of 
Queen's  Bench,  commanding  the  judges 
or  officers  of  an  inferior  court  to  certify 
and  return  the  record  of  a  matter  before 
them.  It  is  used  for  a  great  variety  of 
purposes ;  but  we  are  at  present  looking 
only  at  its  applicability  to  the  case  of  a 
conviction.  No  writ  of  error  lies  upon 
a  conviction ;  so  that  a  certiorari  is  the 
only  mode  of  bringing  it  into  the  Queen's 
Bench,  in  order  to  reverse  it.  It  is  not, 
however,  like  a  writ  of  error,  granted 
ex  debito  justiticB ;  but  "application  is 
made  to  the  sound  discretion  of  the 
Court,"  R.  V.  Bass,  5  T.  R.  252 ;  R.  v. 
Manchester  and  Leeds  Railway  Co.,  1 
P.  &  D.  164;  R.  V.  South  Holland 
Drainage  Committeemen,  1  P.  &  D.  79. 
This  application  is  by  way  of  motion, 
and  by  13  G.  2,  c.  18,  s.  5,  "no  certi- 
orari shall  be  granted  to  remove  any 
order,  conviction,  or  other  proceeding, 
r  ^oQ^-  -1  before  a  justice  or  at  the  *.-;es- 
'-  -'  sions,  unless  it  be  applied  for 

in  six  calendar  months,  and  upon  oath 
made  that  the  party  has  given  six  days' 
notice  in  writing  to  the  justice  or  jus- 
tices, or  two  of  them,  if  so  many  there 
be :"  see  R.  v.  Boughey,  4  T.  R.  281 ; 
R.  v.  Blo.xam,  1  Ad.  &  Ell.  386.  [R.  v. 
Inhabitants  of  Sevenoaks,  7  Q.  B.  136.] 
The  notice  to  the  justices  must  be  six 
days  before  the  rule  7iisi  is  moved  for, 
one  day  inclusive,  the  others  exclusive, 
R.  V.  Goodenough,  2  Ad.  &,  Ell.   463; 


R.  V.  Flounders,  4  B.  &  Ad,  865.  It 
must  be  by  or  on  behalf  of  the  party  in- 
tending to  move,  and  must  appear  to  be 
so,  R.  v.  Justices  of  Lancashire,  4  B.  & 
Ad.  289 ;  R.  v.  Justices  of  Cambridge- 
shire, 3  B.  &  Ad.  887;  R.  v.  Justices  of 
Kent,  3  B.  &  Ad.  2-50;  R.  v.  Justices  of 
Lancashire,  3  Perr.  &  D.  86;  [11  Ad. 
&  Ell.  144,  where  the  notice  was  held 
sufficient] ;  R,  v.  Justices  of  Shrews- 
bury, Mich.  1840,  B.  R.;  R.  v.  How,  11 
Ad.  &  Ell.  159.  But  the  Crown  seems 
not  to  be  bound  by  this  even  where  it 
espouses  the  defendant's  side,  R.  v. 
James,  1  East,  303,  note ;  R.  v.  Berke- 
ley, 1  Kcny.  80;  R.  v.  Battams,  1  East, 
298.  If,  upon  the  discussion  of  the  rule, 
the  writ  be  granted,  it  removes  the  con- 
viction into  the  court  above,  where  it  is 
quashed  if  bad;  if  good,  it  remains  in 
the  Queen's  Bench,  unless,  indeed,  to 
keep  it  there  would  occasion  a  defect  of 
justice,  in  which  case  it  may  be  sent 
back  again  by  writ  of  procedendo,  R.  v. 
Nevile,  2  B.  &  Ad,  299.  [The  person 
prosecuting  the  certiorari  must  by  5  G. 
2,  c.  19,  enter  into  recognizance  for 
50Z.,  with  competent  sureties  to  prose- 
cute it  with  effect  and  pay  costs  if  un- 
successful. This  act  does  not,  however, 
apply  to  the  case  of  a  prosecutor  obtain- 
ing the  writ,  R.  v.  Spencer,  9  Ad.  & 
Ell,  485.] 

The  Court  of  Queen's  Bench,  exer- 
cising its  appellate  power  over  a  convic- 
tion removed  into  it  by  certiorari,  will 
not  allow  the  merits  of  the  case  to  be 
again  litigated  upon  affidavit;  for  the 
justices  are  the  proper  persons  to  deter- 
mine upon  those.  [R.  v.  Bolton,  1  Q. 
B,  66;  R,  V,  Justices  of  Buckingham- 
shire, 3  Q.  B,  800.]  But  a  question  has 
occasionally  arisen  whether,  in  cases 
where  the  justices  have  proceeded  ivith- 
out  jurisdiction,  and  have  nevertheless 
stated  upon  the  face  of  the  conviction 
matter  showing  a  jurisdiction,  it  be  com- 
petent to  the  defendant  to  prove  tiie  want 
of  jurisdiction  by  affidavit.  It  certainly 
appears  desirable  that  the  court  should 
have  power  to  entertain  the  question  of 
jurisdiction.  Some  cases  might  easily 
be  suggested,  in  which  not  only  great 
private  but  great  public  inconvenience 
might  arise  from  leaving  an  invalid 
order  or  conviction  unreversed,  and 
great  injustice  might  be  caused  by  al- 
lowing justices  out  of  or  in  sessions,  by 
making  their  order  or  conviction  good 
upon  the  face  of  it,  to  give  themselves 
a  jurisdiction  over  matters  not  entrusted 


CREPPS     V.     BURDEN. 


701 


r*qQ-'--]  to  them  by  the  law.     *Whe- 
L        '^  ^  ther  a  mandamus  would  lie  in 
sach  a  case  lo  oblige  them  to  make  a 
correct  statement,  is  a  question  which 
the  Court  of  Queen's  Bench  would,  at 
least  in  the  majority  of  instances,  pro- 
bably answer  in  the  negative ;  for  though 
it  is  true  that  in  some  cases,  where  there 
has  been  a  clear  omission  of  some  mate- 
rial ingredient  in  a  conviction,  the  court 
has  by  mnndamus  ordered  it  to  be  sup- 
plied ;  as  in  He  Rix,  4  D.  &  R.  3.52 ;  R. 
V.  Marsh,  4  D.  &  R.  260;  R.  v.  Warne- 
ford,  5  D.  &  R.  4S9;  R.  v.  Allen,  5  D. 
&  R.  491);  yet  this  has  been  done  after 
the  order  or  conviction  had  been  returned 
upon  a  certiorari;  and  it  either  clearly 
appeared,  or  was  shown  by  affidavit,  to 
the  court,  that  the  whole  or  some  mate- 
rial portions  of  the  evidence  had  been 
omitted ;    (see  the   observations  of  the 
court  on  these  cases  in  R.  v.  Wilson,  1 
Ad.  &  Ell.   627;)  and  the  mandamus 
went  not  to  compel  the  court  below  to 
insert  a  particular  thing;  or  raise  a  par- 
ticular question,  upon  their  return,  but 
merely  toioblige  them  to  set  out  an  in- 
tegral part  of  the  case,  which  must  have 
existed,  and  had  been  omitted.     I  say 
must  have   existed,  because   in    R.  v. 
Wilson,  where  evidence  might  or  might 
not  have  been  acted  on,  the  court  would 
not   send  the  mandamus.      And   there 
are  cases  in  which  the  court  has  refused 
to  interfere  by  mandamus  to  compel  the 
courts  below  to  raise  a  particular  ques- 
tion ;  for  instance,  in  R.  v.  Hewes,  3 
Ad.  &,  Ell.  725,  the  jury  had  returned  a 
verdict,  guilty  by  mischance ;  the  chair- 
man of  the  sessions  told  them  they  must 
find  a  general  verdict;  and  they  then 
found  a  verdict  of  guilty,  and    recom- 
mended to  mercy  on  the  ground  that  the 
act  was  not  done  with  a  malicious  intent. 
The  motion  was  for  a  mandamus  to  set 
the  clerk   of  the   peace's  minute  right 
according  to  the  facts,  in  order  that  a 
writ  of  error  might  be  sued  out.     The 
rule  was  discharged.     Mr.  J.  Patteson 
said,  "  The  case  of  a.  mandamus  to  enter 
continuances  and  hear  is  not  like  this. 
There  the  justices  are  ordered  merely 
to  hear  an  appeal,  and  to  enter  continu- 
ances because  those  are    necessary  in 
order  to  enable  them  to  hear;  so,  in  the 
present  case,  if  it  were  necessary  for  the 
defendant  to  have  a  record  made  up,  and 
the  officer  refused  to  do  it,  the  party  hav- 
ing aright  to  avail  himself  of  the  record 
might  apply  for  a  mandamus,  as  in  R. 
V.  Justices  of  Middlesex,  5  B.  S>i  Ad.  1113. 


I  have  always  understood  that  this  court 
might  send  a  mandamus  to  an  inferior 
court  to  do  its  duty  in  general  terms,  but 
not  to  do  a  particular  thing,  as  to  make 
an  alteration  here  or  there  in  the  clerk 
of  the  peace's  minutes;"  [see  R.  v.  Jus- 
tices of  Middlesex,  9  Ad.  &  Ell.  546, 
judgment  of  Littledale  and  Coleridge, 
JJ.,  and  per  curiam,  in  R.  v.  Lords  of 
the  Treasury,  10  Ad.  &  Ell.  179;  R.  v. 
Lords  of  the  Treasury,  10  Ad.  &  Ell. 
374,  and  per  Lord  Denman  in  r  *oia-yr. -i 
*R.  V.  Eastern  Counties  Rail-  '-  '  ^ 
way,  10  Ad.  &  Ell.  547;  R.  v.  Justices 
of  Buckinghamshire,  3  Q,.  B.  800.] 

Supposing  that  the  court  below  can- 
not be  compelled  by  mandamus  to  show 
the  defect  of  jurisdiction  upon  the  record, 
the  next  question  is,  will  the  court  above 
allow  evidence  of  such  defect  of  juris- 
diction to  be  laid  before  it  by  way  of  affi- 
davit, on  the  record  being  brought  before 
it  by  a  writ  of  certiorari^.  In  R.  v.  St. 
James's,  Westminster,  2  Ad.  &  Ell. 
241,  it  was  remarked  by  Mr.  J.  Taunton 
(a  judge  whose  obiter  dicta  are  always 
worthy  of  the  greatest  attention,)  that 
this  had  been  constantly  done.  In  R.  v. 
Inhabitants  of  Great  Marlow,  2  East, 
244,  an  appointment  of  overseers,  good 
on  tlie  face  of  it,  was  allowed  to  be 
questioned  by  affidavit  on  the  ground  of 
a  defect  of  jurisdiction,  and  was  finally 
quashed.  The  Court  in  that  case  had 
taken  time  to  consider  as  to  the  practice 
with  regard  to  receiving  the  affidavit; 
and  Mr.  J.  Lawrence  mentioned  several 
similar  cases  in  which  that  course  had 
been  pursued.  A  similar  course  seems 
to  have  been  pursued  with  an  order  of 
the  quarter  sessions  in  11.  v.  Justices  of 
the  West  Riding  of  Yorkshire,  5  T.  R. 
629.  In  the  late  case  of  R.  v.  Justices 
of  Cheshire,  1  Perr.  &  Dav.  93,8  Ad.  & 
Ell.  400,  the  question  was  a  good  deal 
discussed;  and  it  seems  to  have  been 
admitted  that  affidavits  might  be  looked 
at  for  the  purpose  of  shov/ing  a  defect 
of  jurisdiction.  "It  cannot  be  disputed," 
says  Mr.  J.  Coleridge  in  that  case, 
"  that  there  are  many  cases  in  which 
affidavits  may  be  looked  at  in  order  to 
ascertain  whether  there  was  jurisdiction 
or  not ;  for  suppose  an  order  made,  wliich 
was  good  on  the  face  of  it,  but  which 
was  not  made  by  a  magistrate,  it  is  clear 
that  this  fact  may  be  shown  to  the  court." 
Accord.  R.  v.  Sheffield  and  Manchester 
Railway  Co.,  Mich.  1839,  B.  R. ;  [and  it 
seems  to  be  settled  by  the  later  cases 
that  a  defect  of  jurisdictiou   may  be 


702 


smith's  leading  cases. 


shown  by  affidavit,  though  the  proceed- 
ing' is  so  drawn  np  as  to  ajipear  valid  on 
tho  face  of  it,  11  v.  Bolton,  1  Q.  C.  60; 
and  R.  v.  Cheltenham  leaving  Commis- 
sioners, 1  Q,.  B.  4G7,  vvlierc  liie  delect 
consisted  in  the  presence  on  tho  bench 
of  interested  parties  as  justices;  on  the 
other  hand,  nothing  can  be  more  common 
than  to  find  it  laid  down  that  a  convic- 
tion or  order  is  conclusive  of  the  matter 
stated  in  it  for  the  purpose  of  showing  a 
jurisdiction.  See  judgment  of  Mr.  J. 
I'atfeson  in  Re  Clarke,  2  Q.  B.  634. 
Possibly  the  distinction  may  be  between 
cases  in  which  the  conviction  or  order 
is  made  by  persons  who  are  admitted  to 
constitute  a  legal  court,  and  who  have 
stated  facts  which,  on  information  being 
laid,  or  a  case  coming  before  them, 
would  be  matter  to  be  proved,  and  adju- 
dicated upon  by  them,  and  cases  in  which 
the  objection  is,  that  they  are  not  a 
court  at  all,  because  not  in  fact  magis- 
trates, or  because  interested,  because 
(- ;j..j-2-., -,  they  *sat  out  of  the  limit  of 
^  -'   their  jurisdiction,  or  for  some 

other  reason,  striking  at  their  existence 
as  a  court,  so  that  the  objection  is  not 
that  the  statement  of  a  court  is  errone- 
ous, but  that  the  source  of  the  statement 
is  not  a  court  at  all.] 

Assuming  this  to  be  so,  every  case,  or 
almost  every  case,  of  a  defect  of  jurisdic- 
tion in  the  convicting  magistrate  or  mag- 
istrates would  bo  reviewable  by  certio- 
rari;  for  though  it  is  now  usual  for  the 
statute  creating  the  offence  to  contain  a 
clause  taking  away  the  certiorari,  yet 
such  clauses  do  not,  generally  speaking, 
apply  to  cases  where  there  was  no  juris- 
diction to  convict,  such  cases  not  falling 
within  theact  of  parliamentat  all.  R.  v. 
Justices  of  Somersetshire,  5  B.  &  C.  810 ; 
R.  v.  Justices  of  the  West  Riding  of 
Yorkshire,  5  T.  R.  629 ;  R.  v.  Inhabi- 
tants of  Great  Marlow,  2  East,  244  ;  [nor 
do  they  apply  to  cases  where  the  convic- 
tion has  been  obtained  by  fraud,  as  when 
a  maltster  had  by  collusion,  and  for  the 
purpose  of  exonerating  himself  from 
penalties,  under  7  &  8  G.  4,  c.  53,  pro- 
cured the  conviction  ot  his  servant,  K.  v. 
Gillyard,  14  June,  1848,  17  L.  J.  J\l.  C. 
153.]  But  there  is  a  distinction  between 
cases  of  a  want  of  jurisdiction  and  an 
irregularity  in  exercising  it :  in  the 
former  cose  the  certiorari  lies  notwith- 
standing the  privative  clause,  in  the  lat- 
ter it  is  taken  away.  R.  v.  Bristol  and 
Exeter  Railway  Co.,  1  P.  &  D.  170,  note, 
11  Ad.  &  Ell.  2U2;  R.  v.  Sheffield  aitd 


Manchester  Railway  Co.,  Mich.  1839, 
B.  R.  ;  [11  Ad.  &  Ell.  194.  In  the  for- 
mer case,  indeed,  the  court  went  to  an 
extent  which  seemed  likely  very  much 
to  confine  the  applicability  of  the  writ  of 
certiorari  ;  they  threw  out  tho  opinion 
that  in  cases  where  the  proceeding  was 
merely  irregular,  the  clause  taking  away 
the  certiorari  applied,  and  that  where  it 
was  void,  there  was  no  occasion  for  it, 
and  tliat  the  Court  would  not  grant  it. 
However,  in  the  latter  case,  they  appear 
disposed  to  repudiate  the  application  of 
this  dilemma  ;  at  all  events,  in  cases  in 
which  the  proceeding  snught  to  be  re- 
moved is  not  void  on  the  face  of  it,  but  it 
is  impugned  by  affidavit.  And  in  R.  v. 
Cheltenliam  Paving  Commissioners,  1 
Q,  B.  467,  it  was  distinctly  held  that  in 
a  case  of  malversation  such  a  clause 
would  not  operate.] 

However,  where  the  justice  or  jus- 
tices had  jurisdiction,  the  court  will  not 
grant  a  certiorari  to  remove  the  convic- 
tion or  order,  upon  a  suggestion  made  by 
affidavit  that  they  have  exercised  the 
jurisdiction  wrongly;  R.  v.  Justices  of 
Cheshire,  1  Perr.'  &  Dav.  88,  8  Ad.  & 
Ell.  400;  R.  V.  St.  James's,  Westmin- 
ter,  2  B.  &  Ad.  241 ;  for  that  would  be 
to  substitute  the  court  above  for  the  tri- 
bunal to  which  the  statute  has  committed 
the  inquiry.  And  though  ithasbeen  en- 
deavoured to  show  that  the  Queen's 
Bench  has  a  right  in  cases  of  defect  of 
jurisdiction  to  entertain  the  r  ^.jn-.  -, 
^objection    founded   upon  such  '-  -■ 

delect  on  affidavit,  yet  it  must  be  observ- 
ed that  the  Court  is  not  hound  to  do  so 
upon  certiorari;  for  a  certiorari,  as  has 
been  already  pointed  out,  is  a  writnotof 
right,  but  in  the  discretion  of  the  court  to 
grant  or  to  refuse;  [but  see  the  judgment 
in  Symonds  v.  Dimsdale,  14  Jan.  1848, 
17  L.  J.,  Exch.  247.]  And  cases  may 
occur  in  which,  though  there  may  have 
been  a  defect  of  jurisdiction,  still  the 
Court  may  conceive  that  the  interests  of 
justice  would  be  rather  in>peded  than  ad- 
vanced by  any  summary  interference  on 
their  part.  In  R.  v.  Justices  of  Cam- 
bridgeshire, 4  B.  &.  Ad.  122,  Mr.  J.  Pat- 
tcson  .said,  "  With  regard  to  the  objec- 
tions in  point  of  jurisdiction,  I  protest 
against  its  being  understood  that  we  can 
on  every  occasion  look  into  extrinsic  mat- 
ter on  motions  to  bring  up  orders  by  cer- 
tiorari." "  We  must  be  cautious,"  said 
Air.  J.  Coleridge,  "not  to  exceed  our  ju- 
risdiction; and  when  we  find  tliere  is  a 
court  of  appeal  below,  to  which  the  mat- 


CREPPvS     V.      BURDEN. 


703 


ter  broiig-ht  before  us  on  affidavit,  might 
have  been  carried,  I  think  we  are  con- 
fined to  objections  appearing  on  the  face 
of  the  order."  1  do  not  understand  these 
observations  of  tlie  learned  judges  as  im- 
porting that  tliere  are  cases  of  a  total 
defect  of  jurisdiction  which  the  Court  of 
Queen's  Bench  has  no  power  to  entertain 
ou  affidavit,  but  that  the  leaning  of  the 
court  is  against  doing  so,  except  where 
public  justice  would  be  thereby  furthered. 
See  R.  V.  Justices  of  Denbighshire, 
1  B.  &  Ad.  616.  ■  See  R.  v.  South 
Holland  Drainage  Committee-men,  1 
P.  &  D.  79;  R.  V,  Manhatten  and 
Leeds  Railway  Company,  4  P.  &  D. 
164.  And  that  its  disinclination  to  in- 
terfere is  strong  and  uniform  in  cases 
where  the  legislature  has  provided  ano- 
ther competent  tribunal  of  appeal  to 
which  the  question  might  be  carried. 
[See  K.  V.  Justices  of  Middlesex,  9  Ad. 
&  Ell.  548,  last  point.  In  Ex  parte  Lord 
Giffiird,  Carrow's  Sess.  Cas.,Mr.  Justice 
Williams  refused  a  certiorari  on  the 
ground  that  if  the  recognizance  sought 
to  be  removed  were  void,  the  applicant 
might  treat  it  accordingly.  It  has  not, 
however,  been  usual  to  refuse  the  writ 
for  this  reason,  which,  since  the  11  &  12 
Vict.  0.  44,  s.  2,  prohibiting  actions 
against  justices,  &,c.,  for  anything  done 
under  convictions  or  orders  made  with- 
out jurisdiction,  until  they  have  been 
quashed,  would  scarcely  be  given  in  an- 
swer to  an  application  to  bring  up  a  con- 


viction or  order  to  have  them  quashed 
for  a  defect  of  jurisdiction.] 

In  R.  v.  Just,  of  Cambridgeshire,  Lord 
Denman,  in  his  judgment,  suggested  ano- 
ther ground  on  which  an  application  upon 
affidavit  miglit  possibly  be  entertained. 
"I  do  not  say,"  said  his  lordship,  "that 
even  on  certiorari  the  court  would  not 
set  aside  an  order  it' munifest  fraud  were 
shown.  That  may  be  so.  In  R.  v.  The 
The  Justices  of  Somersetshire,  r  x^oo-r  i 
^where  a  certiorari  was  applied  ^  -' 

for  to  remove  an  appointment  of  over- 
seers, on  a  suggestion  of  corrupt  motives 
in  the  appointing  magistrates,  the  court 
refused  a  rule,  saying  that  the  parties 
complaining  might  appeal  to  the  sessions, 
or  move  for  a  criminal  information.  Not- 
withstanding that  refusal,  however,  I  do 
not  say  that  if  corruption  were  clearly 
made  out,  the  Court  would  not,  upon  an 
application  like  this,  declare  the  order 
invalidated  by  the  fraud."  This  obser- 
vation of  his  lordship  is  consistent  with 
the  principle  laid  dovvn  by  De  Grey,  C. 
J.,  in  the  Duchess  of  Kingston's  cas-e, 
post,  volume  2,  431,  where  his  lordship 
observed  that  "fraud  is  an  extrinsic  col- 
lateral act,  which  vitiates  the  most 
solemn  proceedings  of  courts  of  justice." 
Lord  Coke  says,  '  it  avoids  all  judicial 
acts,  ecclesiastical  or  temporal."  [And 
see  R.  V.  Gillyard,  ante,  387  Z;  where 
fraud  being  shown,  a  conviction  obtained 
by  means  thereof^,  was  brought  up  by 
certiorari  and  quashed.] 


Superior  courts  are  presumed  to  act  by  right,  and  not  by  wrong,  and 
their  acts  and  judgments  are  consequently  conclusive  in  themselves,  unless 
plainly  beyond  the  jurisdiction  of  the  tribunals  whence  they  emanate  :  Pea- 
cock V.  Bell,  1  Saunders,  73;  Grignon's  Lessee  v.  Astor,  2  Howard,  319; 
Briggs  V.  Clark,  7  Howard's  Miss.  11.  457  ;  Penkor  v.  Felts,  2  Smedes  & 
Marshall,  535  ;  Venable  v.  M'Dowell,  4  Dana,  336 ;  Huntington  v.  Char- 
lotte, 15  Vermont,  46  ;  Wells  v.  Mason,  4  Scammon,  84 ;  The  State  v. 
Kimborough,  2  Dev.  431;  The  State  v.  Seaborn,  4  id.  305. 

But  the  jurisdiction  of  limited  and  inferior  tribunals  cannot  be  presumed, 
and  must  be  shown  affirmatively  to  confer  validity  on  their  acts.  Hence  when 
the  facts  necessary  to  give  to  such  a  tribunal  jurisdiction,  do  not  appear  on 
the  face  of  its  proceedings,  and  are  not  proved  aliunde,  the  whole  will  be 
void,  and  ma}^  be  set  aside  as  a  nullity,  when  called  in  question  in  the 
course  of  any  collateral  controversy;  Wise  v.  Withers,  3  Cranch,  331  ; 
Walker  v.  Turner,  9  Wheaton,  549;  Suydain  v.  Keys,  13  Johnson,  444; 
Harriot  v.  Van  Cott,  5  Hill,  285;  Bridge  v.  Ford,  14  Massachusetts,  461 ; 


704  smith's   leading    cases. 

Smith  V.  llice,  11  Mass.  307  ;  Brooks  v.  Altemus,  11  Pickering,  441 ; 
Clapp  V.  Bcardsley,  1  Aiken,  108;  Barrett  v.  Crane,  10  Vermont,  246; 
Green  v.  Ilaskill,  24  Maine,  180;  Hall  v.  Howell,  10  Conn.  526;  Starr 
V.  Scott,  8  id.  480 ;  Taft  v.  Griffin,  5  Georgia,  185 ;  Hill  v.  Robertson,  1 
Strobbart,  1 ;  Wright  v.  Warner,  1  Douglass,  384 ;  Clark  v.  Holmes,  id. 
390;  Snedikcr  v.  Quick,  1  Green,  300;  The  State  v.  Shreeve,  3  id.  57; 
Perrine  v.  Farr,  2  Zabriskic,  350;  Pcirce  v.  Bray,  1  id.  13  ;  Pendleton  v. 
Fowler,  1  English,  41 ;  Latham  v.  Jones,  ib.  372.  And  inPerrine  v.  Farr, 
it  Avas  said  on  the  authority  of  Turner  v.  Beale,  2  Salkeld,  522,  that  unless 
a  particular  jurisdiction  shows  the  matter  to  be  within  its  jurisdiction,  it 
must  be  presumed  to  be  without  it  But  the  strictness  with  which  the  pro- 
ceedings of  inferior  tribunals  are  scrutinized,  only  applies  to  the  question  of 
jurisdiction,  and  when  the  existence  of  jurisdiction  is  proved  or  conceded,  the 
maxim,  omnia  rite  acta,  applies  to  them,  as  well  as  to  courts  of  general  juris- 
diction ;  Reeves  v.  Townsend,  2  Zabriskie,  396 ;  Wright  v.  Warren,  1  Dou- 
glass, 384. 

It  necessarily  results  from  the  rule,  that  the  jurisdiction  of  inferior  courts 
must  appear  affirmatively,  and  cannot  be  presumed,  that  all  the  facts  requi- 
site to  confer  jurisdiction,  must  be  averred  and  proved  whenever  the  pro- 
ceedings of  such  tribunals  are  relied  on,  either  as  a  defence,  or  cause  of 
action  ;  Mills  v.  Martin,  19  Johnson,  34 ;  Morgan  v.  Dyer,  10  id.  103 ; 
Frary  v.  Dakin,  7  id.  73  ;  Service  v.  Heermance,  1  id.  91;  Wyman  v.  Mit- 
chell, 1  Cowen,  310;  Dakin  v.  Hudson,  0  id.  21;  Latham  v.  Edgarton,  9 
id.  227 ;  Wheeler  v.  Townsend,  3  Wendell,  247 ;  Otis  v.  Hitchcock.  0  id. 
433 ;  Wood  v.  Babcock,  1  Denio,  158 ;  Bennett  v.  Burch,  ib.  141 ;  Ste- 
phens V.  Ely,  6  Ilill,  007  ;  Corwin  v.  Merritt,  3  Barbour,  341 ;  Broadhurst 
V.  McConnell,  ib.  175;  Harrington  v.  The  People,  0  id.  007.  Thus  in 
Bowman  v.  Russ,  0  Cowen,  234,  where  the  defendant  pleaded  a  judgment 
against  the  plaintiff  in  a  proceeding  before  two  justices  of  the  peace,  for 
deserting  his  wife  and  children,  as  a  justification  for  entering  the  plain- 
tiff's house  and  arresting  him;  a  replication,  that  no  such  desertion  had 
taken  place,  was  held  good,  as  denying  a  material  fact,  on  which  the  juris- 
diction of  the  justices  was  founded,  and  it  was  said,  that  the  plea  would  have 
been  bad  on  demurrer,  for  want  of  a  positive  allegation  of  the  fact  thus 
denied.  It  was  held  in  like  manner,  in  Mills  v.  Martin,  19  Johnson,  34, 
that  an  avowry  under  the  authority  of  a  court  martial,  to  a  declaration  in  tres- 
pass for  taking  the  plaintiff's  oxen,  was  defective  for  not  setting  forth  suffi- 
cient matter  to  show,  that  the  jurisdiction  of  the  court  martial  existed  and 
had  attached.  And  in  Stephens  v.  Ely,  0  Hill,  607,  where  the  defendant 
pleaded,  that  he  had  been  declared  a  bankrupt  by  the  District  Court  of  the 
United  States,  and  that  he  had  been  discharged,  by  a  decree  of  that  court, 
from  his  debts,  the  plea  was  adjudged  ill  for  not  showing,  that  the  bankrupt 
court  had  juri,':diction,  although  it  was  admitted  not  to  be  necessary  to  plead 
the  particular  acts  of  bankruptcy,  on  which  that  jurisdiction  was  founded. 
The  same  point  was  decided  in  Maples  v.  Burnside,  1  Denio,  332,  while  it 
was  held  in  Coates  v.  Simmons,  4  Barbour,  403,  and  Sackett  v.  Andross,  5 
Hill,  327,  that  to  render  the  discharge  of  a  bankrupt  valid,  in  pleading,  it 
must  be  not  only  averred,  that  the  case  was  of  such  a  nature  as  to  be  within 
the  act,  but  that  it  did  not  come  within  any  of  its  exceptions.  The  same 
principles  were  applied  in  Ford  v.  Babcock,  1  Denio,  158,  to  a  plea  of  justi- 


CREPPS     V.     DURDEN.  705 

fication  under  a  judgment  in  the  ^larine  Court  of  New  York,  wliich  did  not 
contain  the  averments  necessary  to  show,  that  the  court  had  jurisdiction 
over  the  subject-matter  of  the  plea,  or  that  it  had  taken  the  proper  steps  to 
make  that  jurisdiction  effectual. 

The  soundness  of  the  general  principle  laid  down  in  these  cases  is  undoubt- 
ed, but  a  doubt  may  be  entertained  as  to  the  propriety  of  its  application,  to 
the  decrees  of  the  District  Courts  of  the  United  States,  when  sitting  in  bank- 
ruptcy. It  is  well  settled,  that  the  powers  of  those  courts  are  limited,  but 
not  inferior,  and  that  their  jurisdiction,  like  that  of  all  superior  courts,  must 
be  presumed,  unless  its  absence  is  manifest,  (infra.)  And  it  would  seem  to 
follow,  that  as  they  have  full  power  to  direct  the  discharge  of  a  bankrupt, 
it  cannot  be  requisite  to  show,  that  this  power  has  been  properly  exercised, 
when  the  discharge  is  brought  in  question  in  any  subsequent  or  collateral 
proceeding,  either  in  the  State  courts,  or  those  of  the  United  States,  The 
law  was  so  held  in  Rowan  v.  Holcomb,  16  Ohio,  463,  and  Reed  v.  Vaughau, 
10  Missouri,  467.  And  in  Richman  v.  Cowell,  1  Comstock,  305,  it  was 
admitted,  that  such  a  discharge  is  valid  per  se,  when  produced  in  evidence, 
which  would  seem  to  imply,  that  no  averments  are  necessary  when  the  ques- 
tion arises  in  pleading. 

It  seems  to  be  well  settled  on  the  one  hand,  that  where  the  proceedings 
of  inferior  tribunals  set  forth  the  facts  necessary  to  give  jurisdiction,  it  will 
be  held  to  exist  without  proof  aliunde ;  Jenks  v.  Stebbins,  11  Johnson,  224 ; 
Barber  v.  Winslow,  12  Wendell,  102,  and  on  the  other,  that  the  facts  thus 
set  forth,  may  be  disproved  and  the  proceedings  avoided,  by  parol  evidence  ; 
Clark  V.  Holmes,  1  Douglass's  Michigan,  390  ;  Denning  v.  Corwin,  11  Wen- 
dell, 648  ;  Borden  v.  Fitch,  15  Johnson,  121 ;  Harrington  v.  The  People, 
6  Barbour,  607,  Noyes  v.  Butler,  ib.  613;  The  People  v.  Casscls,  5  Hill, 
164.  But  this  rule  only  applies  to  those  facts  and  averments,  on  which  the 
jurisdiction  of  the  court  depends,  for  as  to  all  else,  the  records  of  inferior,  as 
well  as  superior  tribunals  import  absolute  verity,  and  cannot  be  contradict- 
ed ;  McLean  v.  Hayes,  13  Johnson,  184  ;  Cunningham  v.  Bucklin,  8  Gowen, 
187;  Hard  V.  Shipman,  6  Barbour,  621 ;  Clark  v.  Holmes,  1  Douglass's 
Michigan,  390 ;  Reeves  v.  Townsend,  2  Zabriskie,  396. 

Few  rules  are  supported  by  a  greater  weight  of  authority  and  reason,  or 
have  been  longer,  or  more  generally  regarded  as  established  law,  than  that 
which  holds  that  the  proceedings  of  superior  tribunals  must  be  presumed  to 
be  correct,  unless  manifestly  erroneous,  and  cannot  be  contradicted,  or  convict- 
ed of  error  by  extrinsic  evidence.  It  was  notwithstanding  declared  in  Den- 
ning V.  Corwin,  and  The  People  v.  Cassels,  on  the  authority  of  Borden  v.  Fitch, 
that  no  court  can  require  jurisdiction  by  a  false  recital  of  the  facts  neces- 
sary to  give  jurisdiction,  and  that  every  such  recital  is  consequently  open 
to  contradiction.  The  doctrine  thus  laid  down,  was  cited  with  approbation 
in  Harrington  v.  The  People  and  Noyes  v.  Butler,  and  said  to  apply  to 
superior,  as  well  as  to  inferior  tribunals.  This  doctrine  rests  on  dicta 
rather  than  on  absolute  decision,  for  the  cases  of  Borden  v.  Fitch  and 
Denning  v.  Corwin  fall  under  the  principles  which  regulate  the  jurisdistion 
of  inferior  courts,  and  courts  of  other  states,  and  are  not  in  point  in  ques- 
tions arising  with  reference  to  the  superior  courts  of  the  same  state.  The 
same  remark  applies  to  Harrington  v.  The  People  and  Noyes  v.  Butler,  and 
the  decision  in  both  cases  was,  moreover,  in  favour  of  the  validity  of  the 

Vol.  I.— 45 


706  smith's   leading    cases. 

record,  not  against  it.      It  is  notwithstanding  proper  to  inquire,  how  fur  the 
doctrine  in  question,  whether  dictum  or  decision,  is  to  be  regarded  as  law. 

There  are  undoubtedly  a  great  number  of  cases  in  this  country,  which 
give  colour  to  the  assertion,  that  the  jurisdiction  of  superior,  as  well  as  of 
inferior  tribunals,  may  be  attacked  and  set  aside  in  the  course  of  subsequent 
and  collateral  proceedings.  Thus  it  has  been  said  by  the  highest  judicial 
tribunal  in  the  Union,  that  every  court  which  is  called  on  to  recognize  or 
enforce  the  proceedings  of  another,  is  entitled  to  examine  into  the  jurisdic- 
tion on  which  they  are  founded,  and  to  disregard  them  as  nullities,  when 
without  jurisdiction ;  Williamson  v.  Berry,  8  Howard,  407;  and  a  number 
of  authorities  maybe  cited  as  supporting  this  proposition;  Campbell  v. 
Brown,  G  Howard's  Mississippi,  106;  Given  v.  McCarroll,  1  Smedes  & 
Marshall,  354;  Enos  v.  Smith,  7  id.  85;  Schaifer  v.  Yates,  2  B.  Monroe, 
453 ;  Bloom  v.  Burdick,  1  Hill,  140 ;  Hollingsworth  v  Barbour,  4  Peters, 
466;  Elliott  v.Pursell,  1  id.  340;  Wilcox  v.  Jackson,  13  id.  48;  Shriver's 
Lessee  v.  Lynn,  2  Howard,  43 ;  The  Lessee  of  Plickey  v.  Stewart,  3  id. 
750 ;  Williamson  v.  Ball,  8  id.  566.  But  these  cases  will  be  found,  when 
examined,  not  to  go  beyond  one  of  these  two  propositions,  that  the  acts  of 
inferior  courts  are  not  good,  unless  prima  facie  within  their  jurisdiction,  the 
acts  of  superior  courts  void,  when  manifestly  beyond  their  jurisdiction. 
Thus  it  was  held  in  Elliott  v.  Piersoll,  and  again,  in  Wilcox  v.  Jackson, 
Shriver's  Lessee  v.  Lynn,  The  Lessee  of  Ilickey  v.  Stewart,  and  Williamson 
V.  Berry,  that  although  when  a  court  has  jurisdiction,  its  acts  and  judg- 
ments will  be  binding  in  every  other,  yet  that  when  it  has  not,  they  must 
be  regarded  as  nullities;  not  as  as  voidable  only,  but  simply  as  void.  But 
the  acts  set  aside  under  this  general  rule,  in  each  of  these  instances,  were 
without  the  jurisdiction  of  the  court,  from  whence  they  emanated,  either  on 
their  face,  or  by  necessary  intendment.  Neither  the  rule  itself,  therefore, 
uor  its  application,  goes  beyond  the  propositions  above  stated,  or  sustains  the 
doctrine,  that  the  judgments  of  superior  courts  are  invalid,  unless  the  record 
shows  tlje  existence  of  jurisdiction  in  the  cause,  and  that  proper  steps  have 
been  taken  to  make  it  effectual  as  against  the  parties,  and  still  less  that 
when  jurisdiction  is  shown  of  record,  it  may  be  disproved  by  parol.  The 
same  thing  is  true  of  most  if  not  of  all,  the  cases  above  cited.  Thus  in 
Campbell  v.  Brown,  Gwin  v.  McGarrol,  and  Enos  v.  Smith,  the  decrees 
set  aside  were  founded  on  a  special  statutory  power,  which  had  not  been 
pursued.  In  Hollingsworth  v.  Barbour,  the  decree  in  question  had  been 
made  in  a  suit  in  equity,  instituted  to  obtain  a  sale  of  the  land  of  a  deceas- 
ed debtor,  without  describing  the  defendants  otherwise  than  as  his  unknown 
heirs,  and  without  other  notice  to  them  than  by  an  unauthorized  publication 
in  a  newspaper.  And  as  this  was  set  forth  of  record,  and  excluded  the  pre- 
sumption which  would  have  existed,  had  the  record  been  silent,  that  the  de- 
fendants were  duly  served,  the  want  of  jurisdiction  was  apparent  on  the  face 
of  the  proceedings,  and  was  necessarily  fatal  to  their  validity.  The  same 
explanation  applies  to  the  case  of  Schaflfer  v.  Yates,  2  B.  Monroe,  453,  and 
neither  decision  is  an  authority  for  holding,  that  the  presumption  in  favour 
of  the  validity  of  the  judgments  of  superior  courts,  is  otherwise  than  con- 
clusive, where  nothing  appears  on  the  record  to  rebut  it.  The  order  of  sale 
set  aside  in  Williamson  v.  Berry,  was  beyond  the  general  powers  of  the 
court,  from  which  it  emanated    and  was  held    not  to   be  within  the  provi- 


C  R  E  r  P  S    V.     BURDEN.  707 

sions  of  the  act  of  assembly,  on  which  it  professed  to  be  founded.  The 
decision,  therefore,  has  no  bearing  in  any  case,  -where  the  judgment  in  ques- 
tion has  been  entered  under  a  general,  and  not  under  a  special  statutory 
jurisdiction.  The  true  rule  with  regard  to  the  jurisdiction  of  superior  tri- 
bunals, and  the  distinction  between  them  and  inferior  tribunals,  was  laid 
down  with  great  clearness  in  the  ease  of  Grignon's  Lessee  v.  Astor,  2  Ho- 
ward, 319.  The  question  was  as  to  the  validity  of  a  decree  of  a  county 
court  in  Michigan,  authorising  a  sale  of  the  land  of  a  deceased  debtor  by  his 
administrator,  which  was  sustained  on  the  ground,  that  the  county  court 
was  a  court  of  superior,  although  of  limited,  jurisdiction,  and  that  full  faith 
was  due  to  all  its  proceedings,  unless  manifestly  beyond,  or  without  its  juris- 
diction. <'  The  decree,"  said  Baldwin,  J.,  who  delivered  the  opinion  of 
the  court,  ^'  is  an  adjudication  upon  all  the  facts  necessary  to  give  jurisdic- 
tion, and  whether  they  existed  or  not  is  wholly  immaterial  as  no  appeal  is 
taken  ;  the  rule  is  the  same  whether  the  law  gives  an  appeal  or  not ;  if  none 
is  given  from  the  final  decree,  it  is  conclusive  on  all  whom  it  concerns.  The 
record  is  absolute  verity,  to  contradict  which  there  can  be  no  averment  or 
evidence 3  the  court  having  power  to  make  the  decree,  it  can  be  impeached 
only  by  fraud  in  the  party  who  obtains  it.  6  Peters,  729.  A  purchaser 
under  it  is  not  bound  to  look  beyond  the  decree ;  if  there  is  error  in  it,  of 
the  most  palpable  kind,  if  the  court  which  rendered  it  have,  in  the  exercise 
of  jurisdiction,  disregarded,  misconstrued,  or  disobeyed  the  plain  provisions 
of  the  law  which  gave  them  the  power  to  hear  and  determine  the  case  before 
them,  the  title  of  a  purchaser  is  as  much  protected  as  if  the  adjudication 
would  stand  the  test  of  a  writ  of  error;  so  where  an  appeal  is  given  but  not 
taken  in  the  time  prescribed  by  law.  These  principles  are  settled  as  to  all 
courts  of  record  which  have  an  original  general  jurisdiction  over  any  parti- 
cular subjects;  they  are  not  courts  of  special  or  limited  jurisdiction,  they 
are  not  inferior  courts,  in  the  technical  sense  of  the  term,  because  an  appeal 
lies  from  their  decisions.  That  applies  to  "  courts  of  special  and  limited 
jurisdiction,  which  are  created  on  such  principles  that  their  judgments,  taken 
alone,  are  entirely  disregarded,  and  the  proceedings  must  show  their  juris- 
diction ;"  that  of  the  courts  of  the  United  States  is  limited  and  special,  and 
their  proceedings  are  reversible  on  error,  but  are  not  nullities,  which  may 
be  entirely  disregarded.  3  Peters,  205.  They  have  power  to  render  final 
judgments  and  decrees  which  bind  the  persons  and  things  before  them  con- 
clusively, in  criminal  as  well  as  civil  causes,  unless  revived  on  error  or  by 
appeal.  The  true  line  of  distinction  between  courts  whose  decisions  are  con- 
clusive if  not  removed  to  an  appellate  court,  and  those  whose  proceedings 
are  nullities  if  their  jurisdiction  does  not  appear  on  their  face,  is  this  :  a 
court  which  is  competent  by  its  constitution  to  decide  on  its  own  jurisdic- 
tion, and  to  exercise  it  to  a  final  judgment,  without  setting  .forth  in  their 
proceedings  the  facts  and  evidence  on  which  it  is  rendered,  whose  record  is 
absolute  verity,  not  to  be  impugned  by  averment  or  proof  to  the  contrary,  is 
of  the  first  description;  there  can  be  no  judicial  inspection  behind  the 
judgment  save  by  appellate  power.  A  court  which  is  so  constituted  that 
its  judgment  can  be  looked  through  the  facts  and  evidence  which  are 
necessary  to  sustain  it;  whose  decision  is  not  evidence  of  itself  to  show 
jurisdiction  and  its  lawful  exercise,  is  of  the  latter  description ;   every  requi- 


708  smith's   leading   cases. 

site  for  eitlicr  must  appear  on  the  face  of  their  proceedings,  or  tbcy  are 
nullities." 

Whatever  may  be  the  rule  with  regard  to  courts  of  general  powers, 
when  acting  within  the  scope  of  those  powers,  it  is  well  settled,  that  when 
they  do  not,  and  exercise  a  special  and  statutory  authority,  their  pro- 
ceedings stand  on  the  same  footing  with  those  of  courts  of  limited  and 
inferior  jurisdiction,  and  will  be  invalid,  unless  the  authority  on  which  they 
are  founded,  has  been  strictly  pursued;  Denning  v.  Corwin,  11  Wendell, 
647;  Sharp  v.  Speir,  4  Hill,  76;  Striker  v.  Kelly,  7  id.  11;  The  Matter 
of  Mount  Morris  Square,  2  id.  142 :  Williamson  v.  Berry,  8  Howard,  494; 
Williamson  v.  Ball,  ib.  566.  <'  In  exercising  the  powers  given  by  these 
statutes,"  said  Beardsley,  J.,  in  delivering  the  opinion  of  the  court  in 
Striker  v.  Kelly,  '<  we  exercise  powers  which  do  not  belong  to  us  as  a  court 
of  general  jurisdiction,  and  our  proceedings  are,  therefore,  to  be  treated  like 
those  of  courts  of  special  and  limited  jurisdiction."  It  was  held  in  like 
manner,  in  Denning  v.  Corwin,  that  where  the  court  was  authorised  by  sta- 
tute to  proceed  in  partition  without  service  on  the  parties,  where  their  names 
were  unknown,  the  power  thus  given,  was  in  derogation  of  the  common 
law,  and  that  the  proceedings  under  it  might  be  set  aside  collaterally,  unless 
the  record  showed,  that  it  had  been  properly  pursued,  and  that  the  owners 
of  the  property  were  not  known  at  the  time  when  the  action  was  brought. 
It  was  held  in  like  manner,  in  W^illiamson  v.  Berry,  and  Williamson  v. 
Ball,  that  as  the  general  jurisdiction  of  chancery  does  not  extend  to  de- 
creeing a  sale  of  the  real  estate  of  a  minor,  such  a  decree  will  be  invalid, 
when  made  under  an  authority  given  by  a  special  enactment,  unless  the 
authority  given  by  the  act  is  pursued,  and  a  sale  made  under  it  will  pass 
no  title,  either  to  the  vendee,  or  to  a  subsequent  bona  fide  purchaser. 
Little  doubt  can  exist  as  to  the  soundness  of  this  doctrine.  It  is  univer- 
sally admitted,  that  vested  rights  cannot  be  divested  by  the  acts  of  com- 
missioners proceeding  under  a  legislative  authority,  and  not  according  to 
the  course  of  the  common  law,  unless  the  commission  is  strictly  pursued ; 
and  this  just  and  salutary  rule,  should  not  be  evaded,  by  converting  courts 
of  record  into  boards  of  commissioners,  and  thus  doing  that,  under  the  cover 
of  judicial  forms,  which  is  not  judicial  in  its  nature,  and  would  not  be  per- 
mitted, if  done  openly.  The  inconveniences  which  may  occasionally  result 
from  this  course  of  decision,  are  more  than  compensated  by  the  lesson  which 
it  teaches,  that  from  whatever  source  power  may  come,  it  will  fail  of  effect, 
when  unaccompanied  by  right. 

It  is  held  in  general,  that  those  who  rely  on  the  proceedings  of  an  inferior 
tribunal,  must  show  not  only,  that  it  had  jurisdiction  of  the  cause,  but  that 
it  took  the  steps  necessary  to  make  its  jurisdiction  effectual.  But  the  dis- 
tinction has  been  taken,  that  where  the  person  who  justifies  under  the  auth- 
ority of  such  a  tribunal,  is  an  officer  bound  to  execute  its  mandates,  he  will 
not  be  liable  for  obeying  them,  if  they  fall  within  the  general  scope  of  its 
powers,  although  those  powers  may  not  have  been  pursued  in  the  particular 
instance;  Warner  v.  Shed,  10  Johnson,  138;  Lavacool  v.  Boughton,  5 
Wendell,  570;  Ford  v.  Babcock,  1  Denio,  158  ;  Darling  v.  Bowen,  10  Ver- 
mont, 153  ;  Barrett  v.  Crane,  16  id.  246.  This  results  from  the  injustice  of 
making  one  who  is  charged  with  the  execution  of  process,  and  who  is  punish- 
able, if  he  does  not  execute  it,  liable  for  omissions  which  he  has  no  means 


CREPPS    V.    BURDEN. 


709 


of  knowing,  althougli  he  may  well  be  made  responsible,  where  the  defect 
consists  in  a  total  want  of  authority,  and  not  in  the  manner  in  which  it  has 
been  exercised.  It  was  held,  notwithstanding,  in  Etting  v.  Hurst,  6  Hill,  141, 
that  an  officer  cannot  justify  under  process  issued  on  a  void  judgment,  when 
the  judgment  itself  must  be  given  in  evidence,  to  prove  the  right  under 
which  the  process  was  issued,  as  in  the  case  of  a  levy  on  goods  by  a  debtor,  in 
the  bauds  of  a  vendee,  on  the  ground,  that  the  sale  is  fraudulent  as  against 
creditors. 

It  is  sometimes  difficult  to  determine  whether  a  court  is  to  be  considered 
as  a  court  of  inferior  or  of  superior  jurisdiction;  but  it  is  well  settled  that 
limitation  of  jurisdiction  does  not  necessarily  imply  inferiority.  This  dis- 
tinction was  taken  in  Peacock  v.  Bell,  1  Saunders,  15,  and  has  been  fre- 
quently applied  in  this  country.  Thus,  the  Circuit  and  District  courts  of 
the  United  States  are  courts  of  limited,  but  not  of  inferior  jurisdiction. 
Their  judgments  are  binding,  until  reversed  by  regular  proceedings  in  error, 
and  cannot  be  treated  as  nullities,  or  set  aside  collaterally,  for  a  failure  to 
set  forth  the  facts  necessary  to  give  jurisdiction  ;  Wood  v.  3Iann,  1  Sumner, 
580  ;  Skillern's  es'orsv.  Hay,  6  Cranch,  267  ;  Ex  parte  Watkins,  3  Peters, 
103 ;  M'Cormick  v.  SuUivant,  10  Wheaton,  199  ;  Belwin  v.  Hale,  17  John- 
son, 272;  Griswoldv.  Sedgwick,  1  Wendell,  131;  and  the  same  rule  applies 
to  many  of  the  local  and  county  courts  in  the  different  states;  Kemper's  Les- 
see V.  Kennedy,  5  Cranch,  173  ;  Hart  v.  Seixas,  21  Wendell,  40;  The  Com- 
monwealth V.  The  Willow  Grove  Turnpike,  2  Binuey,  255.  The  courts, 
which  under  the  name  of  orphan's  court,  courts  of  probate,  and  other  appel- 
lations, are  entrusted  with  the  settlement  of  the  personal  estate  of  decedents, 
and  in  subordination  to  this,  with  the  power  to  sell  real  estate  when  the 
personal  estate  is  insufficient  to  meet  the  charges  upon  it,  are  treated  in 
some  of  the  states  as  inferior  tribunals,  and  their  decrees  may  be  avoided 
collaterally,  by  showing  a  want  of  jurisdiction,  either  in  the  cause  itself,  or 
over  the  parties.  Chase  v.  Hathaway,  14  Mass.  222  ;  Hathaway  v.  Clarke,  5 
Pick.  490;  Heath  v.  Wells,  ib.  140;  Conkey  v.  Kingman,  24  id.  114; 
Wattles  V.  Hyde,  9  Conn.  10 ;  Dakin  v.  Hudson,  6  Cowen,  221 ;  Ford 
v.  Walworth,  15  Wend.  449;  19  Id.  334;  Clapp  v.  Beardsley,  1 
Aiken,  174;  Hendrick  v.  Cleveland,  2  Vermont,  337;  Waldridge  v. 
Hall,  3  Id.  129;  White  v.  Kiggs,  27  Maine,  114  ;  Brodessv.  Thompson,  2 
Harr.  &  Gill,  120 ;  Bloom  v.  Burdick,  1  Hill,  130 ;  The  People  v.  Corlies, 
1  Sandford  Sup.  Court  R.,  228  ;  Erwin  v.  Lowry,  5  Alabama,  117.  This 
rule  applies  still  more  strongly,  to  those  acts  of  such  tribunals  which  are 
ministerial  in  their  nature,  as  well  as  judicial,  as  for  instance,  the  grant  of 
letters  testamentary  and  of  administration.  Cottle  v.  Appellant,  5  Pick. 
483  ;  Holyoke  v.  Hoskins,  Ib.  20  ;  Coffin  v.  Cattle,  9  Id.  287  ;  Sigourney 
V.  Sibley,  21  id.  101 ;  Gay  v.  Minot,  3  Gushing,  352 ;  Creath  v.  Brint,  3 
Dana,  129;  Slade  v.  Washburn,  3  Iredell,  557  ;  Johnson  v.  Corpenning,  4 
Iredell's  Eq.  216;  Flinn  v.  Chase,  4  Denio,  85;  Dole  v.  Irish,  2  Barbour, 
639.  And  there  can  be  no  doubt  that  as  the  powers  of  these  courts  are 
essentially  limited,  if  not  inferior,  their  acts  will  be  void  wherever  they 
transcend  the  limits  of  their  powers.  Gwin  v.  M'Caroll,  1  Sinedes  & 
Marshall,  354;  Enos  v.  Smith,  7  Id.  85.  But  when  this  is  not  the  case, 
and  their  jurisdiction  has  actually  attached,  it  will  not  be  lost  by  an  irregu- 
larity in  the  mode  of  exercising  it,  and  every  intendment  will  be  made  in 


710  smith's    leading   cases. 

aid  of  the  validity  of  the  proceedings  under  it,  which  will  be  regarded  as 
equally  conclusive  with  those  of  courts  of  superior  and  general  jurisdiction  ; 
Brown  V.  Wood,  17  Mass.  G8  ;  Grignon's  Lessee  v.  Astor,  2  Howard,  319; 
McPhersou  V.  Cunliff,  11  Serg.  &  llawle,  422;  Reaves  v.  Townsend,  2 
Zabriskie,  396;  Wyman  v.  Porter,  G  Porter,  219;  Samuels  v.  Findley,  7 
Alabama,  615;  Small  v.  Ilampstcad,  7  Missouri,  373  ;  Pendleton  v.  Pen- 
dleton, 12  S.  &  M.  302;  Administrators  of  Tryon  v.  Tryon,  16  Vermont, 
313;  M'Farlin  v.  Stone,  17  Id.  165;  Clark  v.  Holmes,  1  Douglass, 
390.  These  distinctions  are  illustrated  by  the  decisions  in  Pennsylvania, 
which  recognise  the  general  rule  with  regard  to  courts  of  inferior  juris- 
diction, but  hold  it  inapplicable  to  most,  if  not  all  the  tribunals  in  that 
state,  although  fully  admitting  that  all  judicial  proceedings  are  void, 
when  manifestly  beyond  or  without  jurisdiction.  Thus  it  was  held  in  Mes- 
singer  v.  Kirtner,  4  Binney,  105,  and  Snider  v.  Snider,  6  Id.  497,  that  the 
decrees  of  the  Orphan's  court  of  that  state  are  void  when  beyond  its  juris- 
diction, and  may  be  set  aside  in  the  course  of  collateral  proceedings,  while  it 
has  since  been  decided  that  the  presumption  is  in  favour  of  the  proceedings  of 
these  courts,  although  like  those  of  all  tribunals,  they  will  be  mere  nullities 
when  manifestly  without  the  scope  of  the  powers  under  which  they  take 
place  ;  M'Pherson  v.  Canliff,  11  S.  &  R.  422  ;  Franklin  v.  Goff,  14  Id.  181 ; 
Herr  v.  Herr,  5  Barr,  428  ;  Pawter  v.  Henderson,  7  Id.  48 ;  Lockhart  v. 
Johns,  lb.  136.  lu  like  manner,  the  judgments  of  justices  of  the  peace 
stand  on  the  same  footing  under  the  Pennsylvania  decisions,  with  those  of 
courts  of  record  ;  Clarke  v.  M-Cowan,  7  W.  &  S.  469  ;  Harlett  v.  Ford,  10 
Watts,  101 ;  and  while  void,  when  plainly  beyond  their  jurisdiction;  Camp 
V.  Wood,  10  Watts,  121 ;  cannot  be  disproved,  or  set  aside  collaterally  by 
parol  evidence,  showing  a  want  of  jurisdiction.  Thus  in  Baird  v.  Campbell, 
4  W.  &  S.  191,  it  was  held  that  when  such  a  judgment  is  good  on  its  face, 
it  cannot  be  invalidated  by  proving  that  no  writ  or  notice  has  been  served 
upon  the  defendant. 

The  result  of  the  whole  matter  seems  to  be,  that  the  judgments  of  all 
courts  are  void  in  the  absence  of  jurisdiction  ;  but  that  while  the  jurisdiction 
of  superior  courts  will  be  presumed,  unless  manifestly  wanting,  no  such 
intendment  can  be  made  in  the  case  of  inferior  courts  ;  and  their  proceed- 
ings are  nullities,  unless  they  show  jurisdiction.  Bloom  v.  Burdick,  1  Hill. 
130.  When,  however,  the  existence  of  jurisdiction  is  once  shown  or  admitted, 
the  judgments  of  superior  and  inferior  tribunals  stand  on  the  same  footing, 
and  are  equally  and  absolutely  conclusive.  Heard  v.  Shipman,  6  Barbour, 
445. 

H. 


Lie  KB  ARROW    V.     MASON.  711 


=:=LICKBARROW    v.    MASON.         [*388] 

IN  B.  R.  CAM.  SCACC.  ET  DOM  PROG. 
[reported  2  t.  r.  G3;  1  h.  bl.  357;  and  6  east,  21.] 

The  vendee  of  goods  may,  by  assignment  of  the  bills  of  lading  to  a  bona  fide  trans- 
feree, defeat  the  vendor's  right  to  stop  them  in  transitu,  in  case  of  the  vendee's 
insolvency. 

The  consignor  may  stop  goods  in  transitu  before  they  get  into  the  hands  of  the  con- 
signee, in  case  of  the  insolvency  of  the  consignee:  but,  if  the  consignee  assign 
the  bills  oflading  to  a  third  person  for  a  valuable  consideration,  the  right  of  the 
consignor,  as  against  such  assignee,  is  divested.  There  is  no  distinction  between 
a  bill  oflading  indorsed  in  blank,  and  an  indorsement  to  a  particular  person. 

Trover  for  a  cargo  of  corn.  Plea,  the  general  issue.  The  plaintiffs,  at 
the  trial  before  Buller,  J.,  at  the  Guildhall  sittings  after  last  Easter  Term, 
gave  in  evidence  that  Turing  and  Son,  merchants  at  Middleburg,  in  the  pro- 
vince of  Zealand,  on  the  22nd  of  July,  1786,  shipped  the  goods  in  question 
on  board  the  Endeavour  for  Liverpool,  by  the  order  and  directions,  and  on 
the  account  of  Freeman,  of  Rotterdam.  That  Holmes,  as  master  of  the 
ship,  signed  four  several  bills  of  lading  for  the  goods  in  the  usual  form  vn(o 
order  or  assi(/ns  :  two  of  which  were  indorsed  by  Turing  and  Son  in  blank, 
and  sent,  on  the  22nd  July,  1786,  by  them  to  Freeman,  together  with 
an  invoice  of  the  goods,  who  afterwards  received  them  ;  another  of  the  bills 
of  lading  was  retained  by  Turing  and  Son  ;  and  the  remaining  one  was  kept 
by  Holmes.  On  the  25th  of  July,  1786,  Turing  and  Son  drew  four  several 
bills  of  exchange  upon  Freeman,  amounting  in  the  whole  to  477?.  in  respect 
of  the  price  of  the  goods,  which  were  afterwards  accepted  *by  Free-  p^oqq"! 
man.  On  the  25th  of  July,  1786,  Freeman  sent  to  the  plaintiffs  L  "^  -^ 
the  two  bills  of  lading,  together  with  the  invoice  which  he  had  received 
from  Turing  and  Son,  in  the  same  state  in  which  he  received  them,  in  order 
that  the  goods  might  be  taken  possession  of  and  sold  by  them  on  Freeman's 
account;  and  on  the  same  day  Freeman  drew  three  sets  of  bills  of  exchange 
to  the  amount  of  520?.  on  the  plaintiffs,  who  accepted  them,  and  have  since 
duly  paid  them.  The  plaintiffs  are  creditors  of  Freeman  to  the  amount  of 
542?.  On  the  15th  of  August,  1786,  and  before  the  four  bills  of  exchange 
drawn  by  Turing  and  Son  on  Freeman  became  due,  Freeman  became  a 
bankrupt :  those  bills  were  regularly  protested,  and  Turing  and  Son  have 
since  been  obliged,  as  drawers,  to  take  them  up  and  pay  them.  The  price 
of  the  goods  so  shipped  by  Turing  and  Son  is  wholly  unpaid.  Turing  and 
Son,  hearing  of  Freeman's  bankruptcy  on  the  21st  of  August,  1786,  indorsed 
the  bill  of  lading  so  retained  by  them  to  the  defendants,  and  transmitted  it 
to  them,  with  an  invoice  of  the  goods,  authorising  them  to  obtain  possession 
of  the  goods  on  account  of,  and  for  the  use  and  benefit  of,  Turing  and  Son, 


712  smith's  leading  cases. 

wliioh  the  defendants  received  on  tlic  2Stli  of  August,  1786.  On  the  arrival 
of  the  vessel  with  the  goods  at  Liverpool,  on  the  28th  of  August,  178G,  the 
defendants  applied  to  Holmes  for  the  goods,  producing  the  bill  of  lading, 
who  thereupon  delivered  them,  and  the  defendants  took  possession  of  thcui 
for  and  on  account  of,  and  to  and  for  the  use  and  benefit  of,  Turing  and 
Son.  The  defendants  sold  the  goods  on  account  of  Turing  and  Son,  the  pro- 
ceeds whereof  amounted  to  557?.  Before  the  bringing  of  this  action  the 
plaintiffs  demanded  the  goods  of  the  defendants,  and  tendered  to  them  the 
freight  and  charges;  but  neither  the  plaintiffs  nor  Freeman  have  paid  or 
offered  to  pay  the  defendants  for  the  goods.  To  this  evidence  the  defend- 
ants demurred;   and  the  plaintiffs  joined  in  demurrer. 

This  was  argued  in  last  Trinity  Term  by  Erskine  in  support  of  the  de- 
murrer, and  Manly  against  it;  and  again,  on  this  da}^,  by  Shepherd  in  sup- 
port of  the  demurrer,  and  Bearcroft,  contra. 

tShepherd,{a)  after  observing  that,  as  the  defendants  were  the  agents  of 
Turing  and  Son,  the  general  question  was  to  be  considered  as  between  the 
r*^Qm  consignor  and  the  indorsee  of  *the  bill  of  lading,  contended,  first, 
L  '*  -*  that,  as  between  the  vendor  and  vendee  of  goods,  the  former  has  a 
right  to  stop  the  goods  in  transitu,  if  the  latter  become  insolvent  before  the 
delivery  of  them.  And,  secondly,  that  such  right  cannot  be  divested  by  the 
act  of  the  vendee's  indorsing  over  the  bill  of  lading  to  a  third  person.  The 
first  question  has  been  so  repeatedly  determined,  that  it  is  scarcely  necessary 
to  cite  any  authorities  in  support  of  it.  [The  plaintiff's  counsel  admitted 
the  position.]  Then,  in  order  to  determine  the  second,  it  is  material  to  con- 
sider the  nature  of  a  bill  of  lading.  A  bill  of  lading  cannot  by  any  means 
be  consti'ued  into  a  contract  on  the  part  of  the  consignor  to  deliver  the  goods 
mentioned  in  it  to  the  consignee ;  it  is  only  an  undertaking  by  the  captain 
to  deliver  the  goods  to  the  order  of  the  shipper.  As  between  the  consignor 
and  consignee,  it  is  a  bare  authority  to  the  captain  to  deliver,  and  to  the 
consignee  to  receive  them.  That  this  is  the  true  nature  of  a  bill  of  hiding 
appears  from  all  the  writers  upon  mercantile  law,  as  Molloy,  PostlethAvayte, 
and  Beawes.  If  it  be  any  other  sort  of  instrument,  it  must  be  contended  to 
amount  to  a  contract  by  the  consignor  to  deliver  the  goods  to  the  consignee; 
but  no  such  contract  arises  upon  it,  because  the  consignor  is  not  even  a 
party  to  it;  and  no  action  could  be  framed  upon  it  against  the  consignor. 
Then,  if  it  be  only  a  bare  authority  to  the  one  to  carry,  and  to  the  other  to 
receive  the  goods,  the  consignee  cannot  transfer  a  greater  right  than  he 
has;  neither  can  the  right  of  the  consignor  be  divested  by  the  act  of  the 
consignee.  If  a  bill  of  lading  be  a  negotiable  instrument,  and  convey  an 
indefeasible  property  in  the  goods,  it  must  be  so  by  the  custom  of  mer- 
chants ;  but  such  custom  is  not  to  be  found  in  any  of  the  books  treating 
upon  the  subject.  Thei'e  are  cases  which  establish  a  contrary  doctrine,  in 
which  the  courts  have  held  that  the  rights  of  the  assignees  are  the  same  as 
the  rights  of  the  original  consignees.  It  cannot,  indeed,  be  disputed  but 
that,  as  between  the  consignee  and  the  indorsee,  the  indorsement  of  a  bill 
of  lading  is  a  complete  transfer  of  the  property  which  the  consignee  has  in 

(«)  As  tlie  second  argument,  with  t)ie  judg;incnt  of  the  court,  comprehended  every  tiring' 
that  was  said  upon  llie  subject,  tiic  Ibrnicr  argument  is  omitted. 


L  I  C  K  B  A  R  R  0  W    V.     M  A  S  0  N.  713 

it;  but  the  cases  go  no  furtlicr.  The  case  of  Snec  and  Prescot(^)  is  pre- 
cisely similar  to  the  present.  There  the  bill  of  lading  was  indorsed  iu  blank, 
and  afterwards  indorsed  over  by  the  consignee  to  his  assignees  :  those 
assignees  were  some  of  ^'the  defendants  in  that  suit,  and  they  stood  r^foniT 
in  the  same  situation  with  the  present  plaintifls.  In  that  case,  ■- 
before  the  goods  arrived,  and  after  the  indorsement  of  the  bill  of  lading  by 
the  consignee,  the  consignee  having  become  a  bankrupt,  the  goods  were 
stopped  in  transitu  by  order  of  the  consignor,  by  an  indorsement  of  the  bill 
of  lading,  which  was  left  with  him,  to  another  of  the  defendants :  there 
Lord  Hardwicke  decreed  that  the  indorsement  did  not  absolutely  transfer  the 
property  in  the  goods,  in  the  event  of  the  consignee's  becoming  a  bankrupt 
before  the  ai'rival  of  the  goods ;  that  as  the  goods  had  been  stopped  in  tran- 
situ, by  order  of  the  consignor,  he  had  a  right  to  detain  them  till  the  sum 
which  he  was  in  advance  to  the  consignee  on  account  of  them  was  paid ;  and 
that  the  surplus  arising  from  the  produce  of  the  goods  should  be  paid  to  the 
indorsees  of  the  consignees.  Now,  unless  Lord  Hardwicke  had  been  of 
opinion  that  the  indorsement  by  the  consignee  did  not  absolutely  transfer 
the  property  iu  the  goods,  he  would  have  decreed  that  the  indorsees  should 
have  been  first  paid  the  money  which  they  had  advanced  upon  the  credit  of 
the  bill  of  lading,  and  then  that  the  surplus  should  have  been  paid  to  the 
consignor;  but  instead  of  that,  he  gave  a  priority  to  the  consignor.  This 
doctrine  is  not  only  laid  down  in  a  court  of  equity,  but  confirmed  in  a  court 
of  law  in  the  case  of  Savignac  and  Cuff,(c')  where  the  same  question  was 
tried  between  the  same  parties  as  at  present.  There  Salvetti,  a  merchant  in 
Italy,  consigned  a  quantity  of  skins  to  Lingham,  residing  in  London,  and 
sent  him  a  bill  of  lading  indorsed  in  blank.  Lingham,  the  consignee, 
indorsed  it  to  Savignac  for  a  valuable  consideration,  at  the  invoice  price, 
shewing  him  at  the  same  time  the  letters  of  advice  and  the  bills  of  parcels. 
The  consignee  not  accepting  the  bills  of  exchange  which  the  consignor  had 
drawn  upon  him  for  the  amount  of  the  goods,  the  consignor  indorsed  the 
bill  of  lading  remaining  in  his  hands  to  Cuff,  the  defendant,  with  orders  to 
seize  the  goods  before  they  got  into  the  hands  of  the  consignee,  which  he 
did;  and  the  action  was  brought  against  him  by  the  indorsee  of  the  con- 
signee to  recover  the  value  of  the  goods.  Wallace,  Solicitor-General,  there  ar- 
gued that  by  the  indorsement  of  the  bill  of  lading  the  property  was  transferred. 
]^ut  Lord  Mansfield  was  of  opinion,  that  the  consignor  had  a  right  to  stop 
the  goods  in  transitu  in  case  of  the  *insolvency  of  the  consignee,  r*qQ.7-i 
and  that  the  plaintiff,  standing  iu  the  same  situation  with  the  origi-  ^  *^-' 
nal  consignee,  had  lost  his  lien.  Lord  Mansfield  was  first  of  opinion,  that 
there  was  a  distinction  between  bills  of  lading  indorsed  in  blank  and  other- 
wise ;  but  he  afterwards  abandoned  that  ground.  But  in  that  case,  as  the 
consignor  had  in  point  of  fact  received  150^.  from  the  consignee,  there  was 
a  verdict  for  the  plaintiff  for  that  sum.  So  that  the  result  of  the  verdict 
was,  that  the  consignor  was  entitled,  under  those  circumstances,  to  retain 
all  the  goods  consigned,  deducting  only  the  sum  which  he  had  actually  re- 
ceived for  part.  Both  these  cases  establish  the  construction  of  the  bill  of 
lading  contended  for :  and  it  is  to  be  observed  that  the  verdict  in  the  latter 

(,b)  1  Atk.  245.  (c)  Sillings  at  Guildhall,  cor.  Lord  Mansfield,  Tr.  1778. 


714  smith's    leading  cases. 

one  was  acquiesced  in.  And  indeed  to  construe  it  otherwise  would  be  open- 
ing a  great  door  to  fraud,  and  would  be  placing  the  indorsee  of  a  consignee 
of  a  bill  of  lading  in  a  better  situation  than  the  consignee  himself  in  case  of 
his  insolvency.  Suppose  the  consignee  assign  over  to  a  third  person,  who 
becomes  insolvent  before  the  delivery  of  the  goods,  such  assignee  would 
then,  notwithstanding  his  insolvency,  have  a  right  to  get  the  goods  into  his 
possession  ;  for  if  the  act  of  indorsement  absolutely  divests  the  property  out 
of  the  consignor,  he  can  never  afterwards  get  possession  of  the  goods  again  ; 
or  else  this  consequence  would  follow,  that  vendor  would  have  a  right  to 
seize  the  goods  in  transitu  till  the  indorsement,  by  which  his  right  would  bo 
divested,  and  that  by  the  act  of  insolvency  of  the  indorsee  it  would  be  re- 
vested. This  has  never  been  considered  to  be  the  same  sort  of  instrument 
as  a  bill  of  exchange ;  they  are  not  assimilated  to  each  other  in  any  trea- 
tise upon  the  subject :  nay,  bills  of  exchange  are  said  to  be  sui  juris.  In 
their  nature  they  are  different;  a  bill  of  exchange  always  imports  to  be  for 
value  received ;  but  the  very  reverse  is  the  case  with  a  bill  of  lading.  For 
in  few,  if  any,  instances,  is  the  consignor  paid  for  his  goods  till  delivery; 
and  bills  of  exchange  were  first  invented  for  the  purpose  of  remitting  money 
from  one  country  to  another,  which  is  not  the  case  with  bills  of  lading.  As 
to  the  case  of  Wright  v.  Campbell, ((^A  which  may  be  cited  on  the  other  side, 
it  will  perhaps  be  said  that  the  Court  awarded  a  new  trial  only  on  the  ground 
pj(.qqq-i  of  fraud  :  hut  non  constat  that,  if  there  had  been  no  suspicion  of  fraud, 
L  -'a  new  trial  would  not  have  been  *granted.  So  that  the  law  cannot  bo 
considered  to  have  been  decided  in  that  case;  for  when  a  new  trial  is  moved 
for,  if  the  facts  warrant  it,  the  Court  awards  a  new  trial  without  going  into 
the  law  arising  upon  those  facts.  In  such  cases  the  law  is  still  left  open  to 
be  considered  on  a  different  finding;  since  it  would  be  nugatory  to  deter- 
mine the  point  of  law,  which  may  not  perhaps  be  applicable  to  the  facts 
when  found.  At  the  most,  there  is  only  an  inference  of  law  to  be  drawn 
from  that  case,  which  is  not  sufficient  to  overturn  established  principles. 
Besides,  this  case  is  distinguishable  from  that ;  for  there  it  appeared  that 
the  consignee  was  the  factor  of  the  consignor,  and  as  such  might  bind  his 
principal  by  a  sale. 

Bearcroft,  contra. — The  question  is,  whether  the  bona  fide  indorsement 
for  a  valuable  consideration  of  a  bill  of  lading  to  a  third  person  is  not  an 
absolute  transfer  of  the  whole  property  ?  This  question  is  of  infinite  im- 
portance to  the  mercantile  world,  and  has  never  yet  been  put  in  a  way  to 
receive  a  solemn  decision  in  a  court  of  law.  For  at  most  it  has  only  been 
considered  in  a  court  of  equity  upon  equitable  principles,  or  at  Nisi  Prius 
in  a  case  the  correct  state  of  which  is  to  be  doubted.  The  form  of  the  bill 
of  lading  is  material  to  be  attended  to  in  determining  this  case ;  it  is,  that 
the  goods  are  to  be  delivered  "to  order  or  to  assigns;'"  therefore,  on  the 
very  face  of  the  instrument,  there  is  an  authority  to  the  captain  to  deliver 
them  to  the  consignee  or  to  his  assigns;  and  the  question  here  is,  who  are 
his  assigns  ?  As  between  the  consignor  and  consignee  the  rule  contended 
for  is  not  now  to  be  disputed,  since  it  has  been  confirmed  by  so  many  autho- 
rities;  though,  perhaps,  it  were  much  to  be  wished  that  it  had  never 
been  established  ;  but  there  will   be  danger  in  extending  it  farther.     With 

{d)  4  Burr.  2046. 


L  I  C  K  B  A  R  R  0  W    V.     M  A  S  0  N.  715 

respect  to  the  case  of  Snee  and  Prescot,  when  it  is  considered  who  were  the 
parties  to  the  cause,  in  what  court,  and  upon  what  principles,  it  was  decided, 
it  will  not  be  found  sufficient  to  determine  the  present  case.  The  actors, 
the  plaintiffs,  were  not  the  innocent  purchasers  of  a  bill  of  lading;  they 
were  the  assignees  of  a  bankrupt,  and  prayed  by  their  bill  to  get  possession 
of  the  goods,  notwithstanding  they  had  not  paid  for  them.  But  this  is  a 
case  between  the  consignor  and  third  persons  who  have  paid  a  valuable 
consideration  for  the  goods;  that  case  was  likewise  *in  a  court  of  ^gq.-, 
equity,  where  the  leading  principle  is,  that  he  who  seeks  equity,  L 
must  first  do  what  is  equitable ;  there  too  the  decision  was  founded,  in  some 
measure,  on  the  custom  of  the  Leghorn  trade,  and  the  construction  of  the 
statute  relating  to  mutual  credit ;  so  that  there  were  united  a  number  of 
circumstances  which,  taken  all  together,  induced  Lord  Ilardwicke's  decree, 
and  which  do  not  exist  in  the  present  case.  And  it  is  to  be  remarked  that 
Lord  Hardwicke,  thinking  it  a  harsh  demand  against  the  consignors,  said 
"  he  would  lay  hold  on  any  thing  to  sava  the  advantage"  which  the  con- 
signors had,  by  regaining  the  possession  of  the  goods  before  they  got  into 
the  hands  of  the  indorsees  of  the  consignee.  Then,  as  to  the  case  of  Savig- 
nac  v.  Cuff,  that  had  not  even  the  authority  of  a  nisi  prius  determination ; 
Lord  Mansfield  gave  no  opinion  upon  this  question ;  for  though  he  said 
there  was  no  doubt  but  that,  as  between  the  vendor  and  the  vendee,  the 
former  might  seize  the  goods  in  transitu,  if  the  latter  became  insolvent 
before  they  were  delivered,  yet  there  he  stopped;  so  that  the  inclination  of 
his  mind  may  be  presumed  to  have  been  against  extending  the  rule.  And, 
after  all,  the  whole  circumstances  of  that  case  were  left  to  the  consideration 
of  a  jury.  Since  Lord  Raymond's  time(e)  it  has  been  taken  to  be  clear  and 
established  law  that  a  general  indorsement  of  a  bill  of  lading  does  trans- 
fer the  property.  And  Holt,  C.  J.,  then  said  "that  a  consignee  of  a  bill  of 
lading  has  such  a  property  as  that  he  may  assign  it  over."  It  has  now  been 
contended  that  the  right  of  the  consignor  ought  not  to  be  divested  by  the 
act  of  the  consignee :  but  it  is  not  by  the  act  of  the  consignee  alone ;  for 
the  consignor  has  by  his  own  act  enabled  the  consignee  to  defeat  his  right. 
If  he  had  been  desirous  of  restraining  the  negotiability  of  the  bill  of  lading, 
instead  of  making  a  general  indorsement,  he  should  have  made  a  special 
indorsement  to  his  own  use.  And  then  the  holder  of  the  bill  of  lading 
would  have  been  considered  as  a  trustee  for  the  consignor.  The  custom  of 
merchants  has  established  that  the  delivery  of  a  bill  of  lading  transfers  the 
whole  property.  Evans  v.  Martlett,  1  Lord  Eaym.  271;  Wright  v.  Camp- 
bell, 4  Burr.  2046;  and  Caldwell  v.  Ball,  ante,  1vol.  [T.  II.],  205.(/) 
Then  it  has  been  said,  that  a  bill  of  lading  is  not  transferable  like  a  bill  of 
exchange:  but  the  custom  of  merchants  has  made  that  transferable  p;^.Tnri 
*which  in  its  nature  perhaps  is  not  so;  and  the  cases  above  referred  L 
to  decide  that  point.  Though  a  new  trial  in  the  case  of  Wright  v.  Campbell 
was  granted  on  a  suspicion  of  fraud,  and  the  law  was  not  expressly  ad- 
judged; yet  from  what  was  said  by  the  Court  it  may  be  collected  that  no 
new  trial  would  have  been  awarded,  if  no  fraud  had  existed  ;  and  the  opinion 
of  Lord  Mansfield,  as  far  as  it  goes,  is  expressly  in  point.  But,  above  all 
arguments,  public  convenience  ought  to  have  a  considerable  influence  in  the 

(c)  1  Lord  Raym.  271,  (/)  Vide  Ilibbcrt  v.  Carter,  1  T.  R.  745= 


71G  sjiith's    leading    cases. 

decision  of  this  question.  By  the  constant  course  and  the  universal  consent 
and  opinion  of  merchants,  bills  of  lading  are  negotiable;  it  is  highly  conve- 
nient to  trade  that  they  should  be  so;  and  if  this  case  should  be  determined 
against  the  plaintiifs,  one  of  the  principal  currents  of  trade  will  be  stopped: 
besides,  it  wilPbe  a  hardship  on  an  innocent  vendee. 

Shqjherd,  in  reply Though  there  may  be  some  hardship  on  the  vendee 

if  he  be  to  suffer,  yet  the  hardship  would  be  equally  great  on  the  vfcndor, 
who  would  by  a  decision  against  him  be  compelled  to  deliver  up  the  posses- 
sion of  his  goods,  though  at  the  time  of  the  delivery  he  knew  that  he  should 
not  receive  any  consideration  for  them.  But  convenience  requires  that,  if 
one  of  these  two  innocent  persons  must  suifer,  the  loss  should  be  sustained 
by  the  consignee.  For  when  a  vendor  consigns  his  goods,  he  knows  that  by 
the  general  law  he  has  a  right  to  stop  them  in  transitu,  if  the  consignee 
become  insolvent  before  delivery.  But  when  an  indorsee  takes  an  assign- 
ment of  a  bill  of  lading,  he  takes  it  with  a  knowledge  of,  and  subject  to, 
that  general  right  which  the  vendor  has.  Though  the  case  of  Snee  v.  Prcs- 
cot  was  determined  in  a  court  of  equity,  yet  that  court  could  not  alter  the 
effect  and  nature  of  a  legal  instrument ;  which  it  must  have  done  in  'that 
case  if  the  right  of  an  indorsee  is  to  be  preferred  to  the  consignor.  Suppose 
A.  sends  a  bill  of  lading  of  goods  to  B.,  and  the  goods  themselves  are  in 
fact  never  sent  out  of  his  possession ;  if  the  indorsement  of  the  bill  of  lading 
can  be  said  to  transfer  the  property,  the  indorsee  would  have  a  right  to 
recover  the  goods  as  against  the  original  consignor,  who  had  never  parted 
with  the  possession  of  them.  So  that  the  rule  contended  for  would  not  only 
divest  the  right  which  the  consignor  has  to  seize  the  goods  in  transitu,  but 
r*Dnfl-|  would  also  compel  him  to  part  with  his  goods,  without  receiving 
'-  -^  *any  consideration,  although  he  had  never  relinquished  the  posses- 
sion. The  meaning  of  the  dictum  of  Lord  Holt,  in  Evans  v.  Martlett,  is 
only  that  the  consignee  may  assign  over  that  right  which  he  has.  The 
case  of  Caldwell  v.  Ball  was  merely  a  question  between  two  solvent  indor- 
sees, both  of  whom  had  an  equitable  title;  and  that  case  only  decided  that 
he  who  first  got  possession  of  one  of  the  bills  of  lading  was  entitled  to  the 
goods;  and  there,  too,  the  Court  determined  in  favour  of  him  who  had  the 
possession. 

Ashhurst,  J. — As  this  was  a  mercantile  question  of  very  great  importance 
to  the  public,  and  had  never  received  a  solemn  decision  in  a  court  of  law, 
we  were  for  that  reason  desirous  of  having  the  matter  argued  a  second  time, 
rather  than  on  account  of  any  great  doubts  which  we  entertained  on  the  first 
argument.  We  may  lay  it  down  as  a  broad  general  principle,  that  wherever 
one  of  two  innocent  persons  must  sufi'er  by  the  acts  of  a  third,  he  who  has 
enabled  such  third  person  to  occasion  the  loss  must  sustain  it.  If  that  be 
so,  it  will  be  a  strong  and  leading  clue  to  the  decision  of  the  present  case. 
It  has  been  argued,  that  it  would  be  very  hard  on  a  consignor,  who  had 
received  no  consideration  for  his  goods,  if  he  should  be  obliged  to  deliver 
them  up  in  case  of  the  insolvency  of  the  consignee,  and  come  in  as  a  creditor 
under  his  commission  for  what  he  can  get.  That  is  certainly  true  :  but  it 
is  a  hardship  which  he  brings  upon  himself.  When  a  man  sells  goods,  he 
sells  them  on  the  credit  of  the  buyer :  if  he  deliver  the  goods,  the  property 
is  altered,  and  he  cannot  recover  thorn  back  again,  though  the  vendee  imme- 
diately become  a  bankrupt.     But  where  the  delivery  is  to  be  at  a  distant 


Lie  KB  ARROW    V.    MASON.  717 

place,  as  between  the  vendor  and  the  vendee,  the  contract  is  ambulatory  till 
delivery  ;  and  therefore,  in  case  of  the  insolvency  of  the  vendee  in  the 
mean  time,  the  vendor  may  stop  the  goods  in  transitu.  But  as  between  the 
vendor  and  third  persons,  the  delivery  of  a  bill  of  lading  is  a  delivery  of 
the  goods  themselves ;  if  not,  it  would  enable  the  consignee  to  make  the  bill 
of  lading  an  instrument  of  fraud.  The  assignee  of  a  bill  of  lading  trusts 
to  the  indorsement ;  the  instrument  is  in  its  nature  transferable ;  in  this 
respect,  therefore,  this  is  similar  to  the  case  of  a  bill  of  exchange.  If  the 
consignor  had  intended  to  restrain  the  negotiability  of  it,  he  should  have 
confined  the  delivery  of  the  goods  to  the  vendee  only :  but  he  has  ^oq--! 
*made  it  an  indorsable  instrument.  So  it  is  like  a  bill  of  exchange :  L  -• 
in  which  case,  as  between  the  drawer  and  the  payee,  the  consideration  may 
be  gone  into,  yet  it  cannot  between  the  drawer  and  the  indorsee  ;  and  the 
reason  is,  because  it  would  be  enabling  either  of  the  original  parties  to  assist 
in  a  fraud.  The  rule  is  founded  purely  on  principles  of  law,  and  not  on  the 
custom  of  merchants.  The  custom  of  merchants  only  establishes  that  such 
an  instrument  may  be  indorsed;  but  the  effect  of  that  indorsement  is  a  ques- 
tion of  law,  which  is,  that  as  between  the  original  parties  the  consideration 
may  be  inquired  into;  though  when  third  persons  are  concerned,  it  cannot. 
This  is  also  the  case  with  respect  to  a  bill  of  lading.  Though  the  bill  of 
lading  in  this  case  was  at  first  indorsed  in  blank,  it  is  precisely  the  same  as 
if  it  had  been  originally  indorsed  to  this  person;  for  when  it  was  filled  up 
with  his  name,  it  was  the  same  as  if  made  to  him  only.  Then  what  was 
said  by  Lord  Mansfield  in  the  case  of  Wright  v.  Campbell  goes  the  full 
length  of  this  doctrine :  "  If  the  goods  be  bona  fide  sold  by  the  factor  at 
sea,  (as  they  may  be  where  no  other  delivery  can  be  given,)  it  will  be  good 
notwithstanding  the  statute  21  Jac.  1,  c.  19.  The  vendee  shall  hold  them 
by  virtue  of  the  bill  of  sale,  though  no  actual  possession  is  delivered :  and 
the  owner  can  never  dispute  with  the  vendee,  because  the  goods  were  sold 
bona  fide,  and  by  the  owner's  own  authority."  Now  in  this  case  the  goods 
were  transferred  by  the  authority  of  the  vendor,  because  he  gave  the  vendor 
a  power  to  transfer  them;  and  being  sold  by  his  authotity,  the  property  is 
altered.  And  I  am  of  opinion  that  this  right  of  the  assignee  could  not  be 
divested  by  any  subsequent  circumstances. 

BuUer,  J. — This  case  has  been  very  fully,  very  elaborately,  and  very 
ably  argued,  both  now  and  in  the  last  term  ;  and  though  the  former  argu- 
ments on  the  part  of  the  defendant  did  not  convince  my  mind,  yet  they 
staggered  me  so  much  that  I  wished  to  hear  a  second  argument.  Before  I 
consider  the  effect  of  the  several  authorities  which  have  been  cited,  I  will 
take  notice  of  one  circumstance  in  this  case  which  is  peculiar  to  it;  not  for 
the  purpose  of  founding  my  judgment  upon,  but  because  I  would  not  have 
it  supposed  in  any  future  ease  that  it  passed  unnoticed,  or  that  it  may  not 
hereafter  have  any  effect  which  it  ought  to  have.  In  this  case  it  is  p^qno-i 
stated  that  there  were  four  bills  of  *lading  :  it  appears  by  the  books  L  J 
treating  on  this  subject,  that  according  to  the  common  course  of  merchants 
there  are  only  three ;  one  of  which  is  delivered  to  the  captain  of  the  vessel, 
another  is  transmitted  to  the  consignee,  and  the  third  is  retained  by  the  con- 
signor himself,  as  a  testimony  against  the  captain  in  case  of  any  loose  deal- 
ing. Now  if  it  be  at  present  the  established  course  among  merchants  to 
have  only  three  bills  of  lading,  the  circumstance  of  there  being  a  fourth 


718  SMITU'S     LEADING     CASES. 

in  this  oaso  miglit,  if  the  case  had  not  been  taken  out  of  the  hands  of  the 
jury  by  the  demurrer,  have  been  proper  for  their  consideration.  I  am  aware 
that  that  circumstance  appears  in  the  bill,  on  which  is  written,  "  in  witness 
the  master  hath  affirmed  to  four  bills  of  lading,  all  of  this  tenour  and  date." 
]?ut  we  all  know  that  it  is  not  the  practice  cither  of  persons  in  trade  or  in 
the  profession  to  examine  very  minutely  the  words  of  an  instrument  which 
is  partly  printed  and  partly  written ;  and  if  we  only  look  at  the  substance 
of  such  an  instrument,  this  may  be  the  means  of  enabling  the  consignee  to 
commit  a  fraud  on  an  innocent  person.  Then  how  stood  the  consignee  in 
this  case  ?  He  had  two  of  the  bills  of  lading,  and  the  captain  must  have  a 
third  ;  so  that  the  assignee  could  not  imagine  that  the  consignor  had  it  in 
Iiis  power  to  order  a  delivery  to  any  other  person.  But  I  mean  to  lay  this 
circumstance  entirely  out  of  my  consideration  in  the  present  case,  which  I 
think  turns  wholly  on  the  general  question  :  and  I  make  the  question  even 
m  ive  general  than  was  made  at  the  bar,  namely,  whether  a  bill  of  lading  is 
by  law  a  transfer  of  the  property  ?  This  question  has  been  argued  upon 
authorities;  and  before  I  take  notice  of  any  particular  objections  which  have 
been  made,  I  will  consider  those  authorities.  The  principal  one  relied  on  by 
the  defendants  is  that  of  Snee  v.  Prescot.  Now,  sitting  in  a  court  of  law, 
I  should  think  it  quite  sufficient  to  say,  that  that  was  a  determination  in  a 
court  of  equity,  and  founded  on  equitable  principles.  The  leading  maxim 
in  that  court  is,  that  he  who  seeks  equity  must  first  do  equity.  I  am  not 
disposed  to  find  fault  with  that  determination  as  a  case  in  equity ;  but  it  is  not 
sufficient  to  decide  such  a  question  as  that  now  before  us.  Lord  Hardwicke 
has,  with  his  usual  caution,  enumerated  every  circumstance  which  existed  in 
the  case  :  and,  indeed,  he  has  been  so  particular,  that  if  the  printed  note  of  it 
r*RQOT  ^^  ^accurate,  which  I  doubt,  it  is  not  an  authority  for  any  case  which 
L  -•  is  not  precisely  similar  to  it.  The  only  point  of  law  in  that  case  is 
upon  the  forms  of  the  bills  of  lading;  and  Lord  Hardwicke  thought  there 
was  a  distinction  between  bills  of  lading  indorsed  in  blank,  and  those  indorsed 
to  particular  persons  :  but  it  was  properly  admitted  at  the  bar  that  that  dis- 
tinction cannot  now  be  supported.  Thus  the  matter  stood  within  these  thirty 
years;  since  that  time  the  commercial  law  of  this  country  has  taken  a  very 
di0"erent  turn  from  what  it  did  before.  We  find  in  Snee  v.  Prescot  that 
Lord  Hardwicke  himself  was  proceeding  with  great  caution,  not  establishing 
any  general  principle,  but  decreeing  on  all  the  circumstances  of  the  case  put 
together.  Before  that  period  we  find  that  in  courts  of  law  all  the  evidence 
in  mercantile  cases  was  thrown  trgether;  they  were  generally  left  to  a 
jury,  and  they  produced  no  established  principle.  From  that  time  we  all 
know  the  great  study  has  been  to  find  some  certain  general  principles,  which 
shall  be  known  to  all  mankind,  not  only  to  rule  the  particular  case  then 
under  consideration,  but  to  serve  as  a  guide  for  the  future.  Most  of  us  have 
heard  these  principles  stated,  reasoned  upon,  enlarged,  and  explained,  till 
we  have  been  lost  in  admiration  at  the  strength  and  stretch  of  the  human 
understanding.  And  I  should  be  very  sorry  to  find  myself  under  a  necessity 
of  difi'ering  from  any  case  on  this  subject  which  has  been  decided  by  Lord 
Mansfield,  who  may  be  truly  said  to  be  the  founder  of  the  commercial  law 
of  this  country.  I  hope  to  show,  before  I  have  finished  my  judgment,  that 
there  has  been  no  inconsistency  in  any  of  his  determinations;  but  if  there 
had,  if  I  could  not  reconcile  an  opinion  which  he  had  delivered  at  Nisi  Prius 


L  I  C  K  B  A  R  R  O  W     V.     M  A  S  0  N.  719 

with  Lis  judgment  iu  this  court,  I  should  not  hesitate  to  adopt  the  latter  ia 
preference  to  the  former:  and  it  is  but  just  to  say,  that  no  Judge  ever  sat 
here  more  ready  than  he  was  to  cor'roct  an  opinion  suddenly  given  at  Nisi 
Prius.  First  as  to  the  ease  of  Wright  v.  Campbell,  that  was  a  very  solemn 
opinion  delivered  in  this  court.  In  ray  opinion  that  is  one  of  the  best  cases 
that  we  have  in  the  law  on  mercantile  subjects.  There  are  four  points  iu 
that  case,  which  Lord  Mansfield  has  stated  so  extremely  clear  that  they  can- 
not be  mistaken  :  The  first  is,  what  is  the  case  as  between  the  owner  of  the 
goods  and  the  factor :  the  second,  *as  between  the  consignor  and  ^^i(\r^-\ 
the  assignee  of  the  factor  with  notice;  thirdly,  as  between  the  same  *-  J 
parties  without  notice;  and  fourthly,  as  to  the  nature  of  a  bill  of  sale  of 
goods  at  sea  in  general.  It  is  to  be  recollected  that  the  case  of  Wright  v. 
Campbell  was  decided  by  the  Judge  at  Nisi  Prius  upon  the  ground  that  the 
bill  of  lading  transferred  the  whole  property  at  law;  and  when  it  came 
before  this  Court  on  a  motion  for  a  new  trial,  Lord  Mansfield  confirmed 
that  opinion ;  but  a  new  trial  was  granted  on  a  suspicion  of  fraud :  there- 
fore it  is  fair  to  infer,  that  if  there  had  been  no  fraud,  the  delivery  of  the 
bill  of  lading  would  have  been  final.  If  there  be  fraud,  it  is  the  same  as  if 
the  question  were  tried  between  the  consignor  and  the  original  consignee. 
According  to  a  note  of  Wright  v.  Campbell,  which  I  took  in  court,  Lord 
Mansfield  said,  that  since  the  case  in  Lord  Raymond,  it  had  always  been 
held  that  the  delivery  of  a  bill  of  lading  transferred  the  property  at  law ; 
if  so,  every  exception  to  that  rule  arises  from  equitable  considerations 
which  have  been  adopted  in  courts  of  law.  The  next  case  is  that  of  Savig- 
nac  V.  Cuff,  the  note  of  which  is  too  loose  to  be  depended  upon  :  but  there 
is  a  circumstance  in  that  case  which  might  afford  ample  ground  for  the  deci- 
sion ;  for  I  cannot  suppose  that  Lord  Mansfield  had  forgotten  the  doctrine 
which  he  laid  down  in  this  court  in  Wright  v.  Campbell.  There  he  observed 
very  minutely  on  what  did  not  appear  at  the  trial,  that  no  letters  were  pro- 
duced, and  that  no  price  was  fixed  for  the  goods  :  but  in  Saviguac  v.  Cuff, 
the  plaintiff  had  not  only  the  bills  of  lading  and  the  invoice,  but  he  had  also 
the  letters  of  advice,  from  which  the  real  transaction  must  have  appeared; 
and  if  it  appeared  to  him  that  Selvetti  had  not  been  paid  for  the  goods, 
that  might  have  been  a  ground  for  the  determination.  The  case  of  Hunter 
V.  l}eal(«)  does  not  come  up  to  the  point  now  in  dispute  ;  it  only  determines 
what  is  admitted,  that,  as  between  the  vendor  and  vendee,  the  property  is 
not  altered  till  delivery  of  the  goods.  With  respect  to  the  case  of  Stokes  v. 
La  Riviere,(Z<)  perhaps  there  may  be  some  doubt  about  the  facts  of  it :  how- 
ever, it  was  determined  upon  a  different  ground ;  for  the  goods  were  in  the 
hands  of  an  agent  for  both  parties  :  that  case,  therefore,  does  not  impeach 
the  doctrine  laid  down  iu  Wright  v.  Campbell.  It  has  been  argued  at  the 
bar,  that  it  is  impossible  for  the  *holder  of  a  bill  of  lading  to  bring  r^^iAi-i 
an  action  on  it  against  the  consignor  :  perhaps  that  argument  is  well  L  -^ 
founded  :  no  special  action  on  the  bill  of  lading  has  ever  been  brought ;  for 
if  the  bill  of  lading  transfer  the  property,  an  action  of  trover  against  the 
captain  for  non-delivery,  or  against  any  other  person  who  seizes  the  goods, 
is  the  proper  form  of  action.      If  an  action  be  brought  by  a  vendor  against 

(a)  Sittings  after  Trin.  nS.l,  at  Guildhall,  bcibie  Lord  Mansfield,  C.  J. 
(A)  Hil.  25  G.  3. 


720  smith's    leading    cases. 

a  vendee,  between  whom  a  bill  of  lading  has  passed,  the  proper  action  is 
for  goods  sold  and  delivered.  Then  it  has  been  said  that  no  case  has  yet 
decided  that  a  bill  of  lading  does  transfer  the  property :  but  in  answer  to 
that  it  is  to  be  observed,  that  all  the  cases  upon  the  subject — Evans  v. 
Martlett,  AYright  v.  Campbell,  and  Caldwell  v.  Ball,  and  the  universal 
understanding  of  mankind — preclude  that  question.  The  cases  between  the 
consignor  and  consignee  have  been  founded  merely  on  principles  of  equity, 
and  have  followed  up  the  principle  of  Snee  v.  Prescot ;  for  if  a  man  has 
bought  goods  and  has  not  paid  for  them,  and  carinot  pay  for  them,  it  is  not 
e(|uitable  that  he  should  prevent  the  consignor  from  getting  his  goods  back 
again,  if  he  can  do  it  before  they  are  in  fact  delivered.  There  is  no  weight 
in  the  argument  of  hardship  on  the  vendor  :  at  any  rate  that  is  a  bad  argu- 
ment in  a  court  of  law;  but  in  fact  there  is  no  hardship  on  him,  because 
he  has  parted  with  the  legal  title  to  the  consignee.  An  argument  was  used 
with  respect  to  the  difficulty  of  determining  at  what  time  a  bill  of  lading 
shall  be  said  to  transfer  the  property,  especially  in  a  case  where  the  goods 
were  never  sent  out  of  the  merchant's  warehouse  at  all :  the  answer  is,  that 
under  those  circumstances  a  bill  of  lading  could  not  possibly  exist,  if  the 
transaction  were  a  fair  one;  for  a  bill  of  lading  is  an  acknowledgment  by 
the  captain,  of  having  received  the  goods  on  board  his  ship  :  therefore  it 
would  be  a  fraud  in  the  captain  to  sign  such  a  bill  of  lading,  if  he  had  not 
received  goods  on  board ;  and  the  consignee  would  be  entitled  to  hisaction 
against  the  captain  for  the  fraud.  As  the  plaintiff  in  this  case  has  paid 
a  valuable  consideration  for  the  goods,  and  there  is  no  colour  for  imputing 
fraud  or  notice  to  him,  I  am  of  opinion  that  he  is  entitled  to  the  judgment  of 
the  Court. 

Grose,  J. — After  this  case  has  been  so  elaborately  spoken  to  by  my 
r*-tn91  brethren,  it  is  not  necessary  for  me  to  enter  fully  into  the  question, 
■-  "J  as  I  am  of  the  same  opinion  with  them.  *But  I  think  that  the  im- 
portance of  the  subject  requires  me  to  state  the  general  grounds  of  my 
opinion.  I  conceive  this  to  be  a  mere  question  of  law,  whether,  as  between 
the  vendor  and  the  assi^jnee  of  the  vendee,  the  bill  of  ladino;  transfers  the 
property.  I  think  that  it  does.  With  respect  to  the  question  as  between 
the  original  consignor  and  consignee,  it  is  now  the  clear,  known,  and  estab- 
lished law  that  the  consignor  may  seize  the  goods  in  transitu,  if  the  consignee 
become  insolvent  before  the  delivery  of  them.  But  that  was  not  alwis^ys  the 
law.  The  first  case  of  that  sort  was  that  of  "Wiseman  v.  Vandeputt  in  Chan- 
cery,(a)  when,  on  the  first  hearing,  the  Chancellor  ordered  an  action  of  tro" 
ver  to  be  brought,  to  try  whether  the  consignment  vested  the  property  in 
the  consignees  ;  and  it  was  then  determined  in  a  court  of  law  that  it  did  : 
but  the  Court  of  Equity  thought  it  right  to  interj>ose  and  give  relief;  and 
since  that  time  it  has  always  been  considered,  as  between  the  original  par- 
ties, that  the  consignor  may  seize  the  goods  before  they  are  actually  deli- 
vered to  the  consignee,  in  case  of  the  insolvency  of  the  consignee.  But 
this  is  a  question  between  the  consignor  and  the  assignee  of  the  consignee, 
who  do  not  stand  in  the  same  situation  as  the  original  parties.  A  bill  of 
lading  carries  credit  with  it;  the  consignor  by  his  indorsement  gives  credit 
to  the  bill  of  lading,  and  on  the  faith  of  that,  money  is  advanced.     The  first 

(n)  2  Vcrn.  203. 


MASON    V.     LICKB  ARROW.  721 

case  that  I  find  where  an  attempt  was  made  to  introduce  the  same  law 
between  the  consignor  and  the  indorsee  of  the  consignee,  is  that  of  Snee  v. 
Prescot ;  but  as  my  brother  Buller  has  already  made  so  many  observations 
on  that  case,  it  would  be  but  repetition  in  me  to  go  over  them  again,  as  I 
entirely  agree  with  him  in  them  all,  as  well  as  in  those  which  he  made  on  the 
other  cases.  Therefore  I  am  of  opinion  that  there  should  be  judgment  for 
the  plaintiflp. 

Judgment  for  the  plaintiff. (a) 


MASON  AND  OTHERS  V.  LICKBARROW  AND  OTHERS,  IN  THE  EXCHEQUER 
CHAMBER,  IN  ERROR. 

Held  in  Cam.  Scacc.  that  where  the  consignee  of  goods  becomes  insolvent,  the  consignor 
may  slop  them  in  transitu  before  the  consignee  gains  possession.  In  such  cases  also  the 
consignor  may  stop  the  goods  in  transitu,  though  the  consignee  assign  the  bills  uf  lading 
to  a  third  person  for  a  valuable  consideration  ;  the  right  of  the  consignor  not  being 
divested  by  the  assignment.  But  this  judgment  was  reversed,  and  the  latter  point  is 
now  settled  otherwise. 

The  defendants  in  the  original  action,  having  brought  a  writ  of  error  in 
the  Exchequer  Chamber,  after  two  arguments,  the  follQimng  judgmeiit  of 
that  Court  was  there  delivered,  by 

Lord  Loughborough. — This  case  comes  before  the  court  on  a  demurrer  to 
the  evidence;  the  general  question,  *therefore,  is,  whether  the  facts  [-:)-<  aot 
offered  in  evidence  by  the  plaintiffs  in  the  action  are  suflScient  to  L  -* 
warrant  a  verdict  in  their  favour  ? 

The  facts  are  shortly  these  :  On  the  22nd  of  July,  1786,  Messrs.  Turings 
shipped  on  board  the  ship  Endeavour,  of  which  Holmes  was  master,  at  Mid- 
dleburgh,  to  be  carried  to  Liverpool,  a  cargo  of  goods  by  the  order  and 
directions  and  on  the  account  of  Freeman  of  Rotterdam,  for  which,  of  the 
same  date,  bills  of  lading  were  signed  on  behalf  of  the  master,  to  deliver  the 
goods  at  Liverpool,  specified  to  be  shipped  by  Turings  to  order  or  to  assigns. 
On  the  same  22d  of  July,  two  of  the  bills  of  lading  indorsed  in  blank  by 
Turings,  were  transmitted  by  them,  together  with  an  invoice  of  the  goods,  to 
Freeman  at  Rotterdam,  and  were  duly  received  by  him,  that  is,  in  the  course 
of  post,  one  of  the  bills  being  retained  by  Turings.  I  take  no  notice  of 
there  being  four  bills  of  lading,  because  on  that  circumstance  I  lay  no  stress. 
On  the  25th  of  July,  bills  of  exchange  for  a  sum  of  477?.,  being  the  price 
of  the  goods,  were  drawn  by  Turings,  and  accepted  by  Freeman  at  Rotter- 
dam; and  Freeman  on  the  same  day  transmitted  to  the  plaintiffs  in  the 
action,  merchants  at  Liverpool,  the  bills  of  lading  and  invoice,  which  he  had 
received  from  Turings,  in  order  that  the  goods  might  be  sold  by  them  on  his 
account;  and  of  the  same  date  drew  upon  them  bills  to  the  amount  of  520^., 
which  were  duly  accepted,  and  have  since  been  paid  by  them;   and  for 

(«)  This  judgment  was  afterwards  reversed  in  the  Exchequer  Chamber.  Vide  Mason 
V.  Lickbarrow,  infra.  But  the  record  being  afterwards  removed  into  the  House  of  Lords 
a  venire  de  novo  was  awarded  in  June,  1793.     Vide  Post,  p.  414. 

Vol.  I.— 46 


fl-J.  S  M  ITII    S     LEADl  N  G     C  A  SES. 

wliicli  they  have  never  been  reimbursed  by  Freeman,  who  became  a  bank- 
rupt (in  the  15th  of  August  following.  The  bills  accepted  by  Freeman, 
for  the  price  of  the  goods  shipped  by  Turings,  had  not  become  due 
on  the  15th  of  August,  but  on  notice  of  his  bankruptcy,  they  sent  the 
bill  of  lading  which  remained  in  their  custody  to  the  defendants  at  Liverpool, 
with  a  special  indorsement  to  deliver  to  them  and  no  other;  which  the  defen- 
dants received  on  the  28th  of  August,  1786,  together  with  the  invoice  of  the 
goods  and  a  power  of  attorney.  The  ship  arrived  at  Liverpool  on  the  28th 
of  August,  and  the  goods  were  delivered  by  the  master,  on  account  of 
Turings,  to  the  defendants,  who,  on  demand  and  tender  of  freight,  refused 
to  deliver  the  same  to  the  plaintiffs. 

The  defendants,  in  this  case,  are  not  stake-holders,  but  they  are  in  eiFect 

,-,,-,  the  same  as  Turings,  and  the  possession  *they  have  got  is  the  pos- 
L  -  session  of  Turings.  The  plaintiffs  claim  under  Freeman ;  but 
though  they  derive  a  title  under  him,  they  do  not  represent  him,  so  as  to 
be  answerable  for  his  engagements ;  nor  are  they  affected  by  any  notice  of 
those  circumstances  which  would  bar  the  claim  of  him  or  of  his  assignees. 
If  they  have  acquired  a  legal  right,  they  have  acquired  it  honestly ;  and  if 
they  have  trusted  to  a  bad  title,  they  are  innocent  sufferers.  The  question 
then  is,  whether  the  plaintiffs  have  a  superior  legal  title  to  that  right  which, 
on  principles  of  natural  justice,  the  original  holder  of  goods  not  paid  for  has 
to  maintain  that  possession  of  them,  which  he  actually  holds  at  the  time  of 
the  demand  ? 

The  argument,  on  the  part  of  the  plaintiffs,  asserts  that  the  indorsement 
of  the  bill  of  lading  by  the  Turings  is  an  assignment  of  the  property  in  the 
goods  to  Freeman,  in  the  same  manner  as  the  indorsement  of  a  bill  of 
exchange  is  an  assignment  of  the  debt  :  that  Freeman  could  assign  over 
that  property,  and  that,  by  delivery  of  the  bill  of  lading  to  the  plaintiffs  for 
a  valuable  consideration,  they  have  a  just  right  to  the  property  conveyed  by 
it,  not  affected  by  any  claim  of  the  Turings,  of  which  they  had  no  notice. 
On  the  part  of  the  defendant  it  is  argued,  that  the  bill  of  lading  is  not  in  its 
nature  a  negotiable  instrument;  that  it  more  resembles  a  chose  in  action  ; 
that  the  indorsement  of  it  is  not  an  assignment  that  conveys  an  interest,  but 
a  mere  authority  to  the  consignee  to  receive  the  goods  mentioned  in  the  bill ; 
and,  therefore,  it  cannot  be  made  a  security  by  the  consignee  for  money 
advanced  to  him;  but  the  person  who  accepted  it  must  stand  in  the  place 
of  the  consignee,  and  cannot  gain  a  better  title  than  he  had  to  give.  As 
these  propositions  on  either  side  seem  to  be  stated  too  loosely,  and  as  it  is 
of  great  importance  that  the  nature  of  an  instrument  so  frequent  in  com- 
merce as  a  bill  of  lading  should  be  clearly  defined,  I  think  it  necessary  to 
state  my  ideas  of  its  nature  and  effect : — 

A  bill  of  lading  is  the  written  evidence  of  a  contract  for  the  carriage  and 
delivery  of  goods  sent  by  sea  for  a  certain  freight.  The  contract  in  legal 
language  is  a  contract  of  bailment;  2  Lord  Raym.  912.  In  the  usual  form 
of  the  contract  the  undertaking  is  to  deliver  to  the  order  or  assigns  of  the 
shipper.  By  the  delivery  on  board,  the  ship-master  acquires  a  special  pro- 
*J.n"n  P^^^'J  ^^  support  that  possession  which  *he  holds  in  the  right  of  an- 
L  -I  other,  and  to  enaMe  him  to  perform  his  undertaking.  The  general 
property  remains  with  the  shipper  of  the  goods  until  he  has  disposed  of  it 
by  some  act  sufficient  in  law  to  transfer  property.      The  indorsement  of  the 


MASON    V.    L  I  C  K  B  A  R  R  O  W.  723 

bill  of  liuling  is  simply  a  direction  of  the  delivery  of  the  goods.  When  this 
indorsement  is  in  blank,  the  holder  of  the  bill  of  lading  may  receive  the 
goods,  and  his  receipt  will  discharge  the  ship-master;  but  the  holder  of  the 
bill,  if  it  came  into  his  hands  casually,  without  any  just  title,  can  acquire 
no  property  in  the  goods.  A  special  indorsement  defines  the  person  ap- 
pointed to  receive  the  goods ;  his  receipt  or  order  would,  I  conceive,  be  a 
sufficient  discharge  to  the  ship-master  ;  and,  in  this  respect,  I  hold  the  bill 
of  lading  to  be  assignable.  But  what  is  it  that  the  indorsement  of  the  bill 
of  lading  assigns  to  the  holder  or  the  indorsee  ?  a  right  to  receive  the  goods 
and  to  discharge  the  ship-master,  as  having  performed  his  undertaking.  If 
any  further  effect  be  allowed  to  it,  the  possession  of  a  bill  of  lading  would 
have  greater  force  than  the  actual  possession  of  the  goods.  Possession  of 
goods  is  prima  facie  evidence  of  title ;  but  that  possession  may  be  precarious, 
as  of  a  deposit;  it  may  be  criminal,  as  of  a  thing  stolen;  it  may  be  qua- 
lified, as  of  things  in  the  custody  of  a  servant,  carrier,  or  a  factor.  Mere 
possession,  without  a  just  title,  gives  no  property;  and  the  person  to  whom 
such  possession  is  transferred  by  delivery,  must  take  his  hazard  of  the  title 
of  his  author.  The  indorsement  of  a  bill  of  lading  differs  from  the  assign- 
ment of  a  chose  in  action,  that  is  to  say,  of  an  obligation,  as  much  as  debts 
differ  from  effects.  Goods  in  pawn,  goods  bought  before  delivery,  goods  in 
a  warehouse,  or  on  ship-board,  may  all  be  assigned.  The  order  to  deliver 
is  an  assignment  of  the  thing  itself,  which  ought  to  be  delivered  on  demand, 
and  the  right  to  sue,  if  the  demand  is  refused,  is  attached  to  the  thing.  The 
case  in  1  Lord  Rayra.  271  was  well  determined  on  the  principal  point,  that 
the  consignee  might  maintain  an  action  for  the  goods,  because  he  had  either 
a  special  property  in  them,  or  a  right  of  action  on  the  contract :  and  I  assent 
to  the  dictum,  that  he  might  assign  over  his  right.  But  the  question  re- 
mains. What  right  passes  by  the  first  indorsement,  or  by  the  assignment  of 
it  ?  An  assignment  of  goods  in  pawn,  or  of  goods  bought  but  not  delivered, 
cannot  transmit  a  right  to  *take  the  one  without  redemption,  and  ^^  in,:.-! 
the  other  without  the  payment  of  the  price.  As  the  indorsement  L  -• 
of  a  bill  of  lading  is  an  assignment  of  the  goods  themselves,  it  differs  essen- 
tially from  the  indorsement  of  a  bill  of  exchange  ;  which  is  the  assignment 
of  a  debt  due  to  the  payee,  and  which,  by  the  custom  of  trade,  passes  the 
M^hole  interest  in  the  debt  so  completely,  that  the  holder  of  the  bill  for  a 
valuable  consideration  without  notice,  is  not  affected  even  by  the  crime  of 
the  person  from  whom  he  received  the  bill. 

Bills  of  lading  differ  essentially  from  bills  of  exchange  in  another  respect. 

Bills  of  exchange  can  only  be  used  for  one  given  purpose,  namely,  to 
extend  credit  by  a  speedy  transfer  of  the  debt,  which  one  person  owes  an- 
other, to  a  third  person.  Bills  of  lading  may  be  assigned  for  as  many  dif- 
ferent purposes  as  goods  may  be  delivered.  They  may  be  indorsed  to  the 
true  owner  of  the  goods  by  the  freighter,  who  acts  merely  as  his  servant. 
They  may  be  indorsed  to  a  factor  to  sell  for  the  owner.  They  may  be  in- 
dorsed by  the  seller  of  the  goods  to  the  buyer.  They  ai'e  not  drawn  in  any 
certain  form.  They  sometimes  do  and  sometimes  do  not  express  on  whose 
account  and  risk  the  goods  are  shipped.  They  often,  especially  in  time  of 
war,  express  a  false  account  and  risk.  They  seldom,  if  ever,  bear  upon  the 
face  of  them  any  indication  of  the  purpose  of  the  indorsement.  To  such  au 
instrument,  so  various  in  its  use,  it  seems  impossible  to  apply  the  same  rules 


724  smith's  leading   cases. 

as  govern  the  indorsement  of  bills  of  exchange.  The  silence  of  all  authors 
treating  of  commercial  law  is  a  strong  argument  that  no  general  usage  has 
made  them  negotiable  as  bills.  Some  evidence  appears  to  have  been  given 
in  other  cases,(a)  that  the  received  opini(m  of  merchants  was  against  their 
being  so  negotiable.  And  unless  there  was  a  clear,  established,  general 
usage  to  place  the  assignment  of  a  bill  of  l?lding  upon  the  same  footing  as 
the  indorsement  of  a  bill  of  exchange,  that  country  which  should  first  adopt 
such  a  law  would  lose  its  credit  with  the  rest  of  the  commercial  world.  For 
the  immediate  consequence  would  be  to  prefer  the  interest  of  the  resident 
factors  and  their  creditors,  to  the  fair  claim  of  the  foreign  consignor.  It 
would  not  be  much  less  pernicious  to  its  internal  commerce;  for  every  case 
of  this  nature  is  founded  in  a  breach  of  confidence,  always  attended  with  a 
r*J.fi-l  suspicion  *of  collusion,  and  leads  to  a  dangerous  and  false  credit,  at 
L  '-I  the  hazard  and  expense  of  the  fair  trader.  If  bills  of  lading  are 
not  negotiable  as  bills  of  exchange,  and  yet  are  assignable,  what  is  the  con- 
sequence ?  That  the  assignee  by  indorsement  must  inquire  under  what  title 
the  bills  have  come  to  the  hands  of  the  person  from  whom  he  takes  them. 
Is  this  more  difficult  than  to  inquire  into  the  title  by  which  goods  are  sold 
or  assigned?  In  the  case  of  Hartop  v.  Hoare,(6)  jewels  deposited  with  a 
goldsmith  were  pawned  by  him  at  a  banker's.  Was  there  any  imputation, 
even  of  neglect,  in  a  banker  trusting  to  the  apparent  possession  of  jewels  by 
a  goldsmith  ?  Yet  they  were  the  property  of  another,  and  the  banker  suffered 
the  loss.  It  is  received  law,  that  a  factor  may  sell,  but  cannot  pawn,  the 
goods  of  his  consignor.  Patterson  v.  Tash,  2  Str.  1178.  The  person,  there- 
fore, who  took  an  assignment  of  goods  from  a  factor  in  security,  could  not 
retain  them  against  the  claim  of  the  consignor ;  and  yet,  in  this  case,  the 
factor  might  have  sold  them  and  embezzled  the  money.  It  has  been  argued, 
that  it  is  necessary  in  commerce  to  raise  money  on  goods  at  sea,  and  this  can 
only  be  done  by  assigning  the  bills  of  lading.  Is  it  then  nothing,  that  an 
assignee  of  a  bill  of  lading  gains  by  the  indorsement  ?  He  has  all  the  right 
the  indorser  could  give  him ;  a  title  to  the  possession  of  the  goods  when  they 
arrive.  He  has  a  safe  security,  if  he  has  dealt  with  an  honest  man.  And 
it  seems  as  if  it  could  be  of  little  utility  to  trade,  to  extend  credit  by  afford- 
ing a  facility  to  raise  money  by  unfair  dealing.  Money  will  be  raised  on 
goods  at  sea,  though  bills  of  lading  should  not  be  negotiable,  in  every  case 
where  there  is  a  fair  ground  of  credit :  but  a  man  of  doubtful  character  will 
not  find  it  so  easy  to  raise  money  at  the  risk  of  others. 

The  conclusions  which  follow  from  this  reasoning,  if  it  be  just,  are — 1st. 
That  an  order  to  direct  the  delivery  of  goods  indorsed  on  a  bill  of  lading  is 
not  equivalent,  nor  even  analogous,  to  the  assignment  of  an  order  to  pay 
money  by  the  indorsement  of  a  bill  of  exchange.  2ndly.  That  the  negotia- 
bility of  bills,  and  promissory  notes,  is  founded  on  the  custom  of  merchants, 
and  positive  law ;  but,  as  there  is  no  positive  law,  neither  can  any  custom 
of  merchants  apply  to  such  an  instrument  as  a  bill  of  lading.  3rdly.  That 
J. .  „^-.  it  is,  therefore,  not  negotiable  as  a  bill,  but  assignable  ;  and  *passes 
L  J  such  right,  and  no  better,  as  the  person  assigning  had  in  it. 

This  last  proposition  I  confirm  by  the  consideration,   that  actual  deli- 

(o)  Snee  v.  Prescolt,  1  Atk.  245:   Fearon  v.  Bowers,  post. 
(6)2  Str.  11 87.     1  Wils.  8. 


MASON     V.     Lie  KB  ARROW.  725 

very  of  the  goods  does  not  of  itself  transfer  an  absolute  ownership  in  tliem, 
■without  a  title  of  property;  and  that  the  indorsement  of  a  bill  of  lading,  as 
it  cannot  in  any  case  transfer  more  right  than  the  actual  delivery,  cannot  in 
every  case  puss  the  property;  and  I  therefore  infer,  that  the  mere  indorse- 
ment can  in  no  case  convey  an  j^bsolute  property.  It  may,  however,  be  said, 
that  admitting  an  indorsement  of  a  bill  of  lading  does  not  in  all  cases  import 
a  transfer  of  the  property  of  the  goods  consigned,  yet  where  the  goods,  when 
delivered,  would  belong  to  the  indorsee  of  the  bill,  and  the  indorsement 
accompanies  a  title  of  property,  it  ought  in  law  to  bind  the  consignor,  at 
least  with  respect  to  the  interest  of  third  parties.  This  argument  has,  I 
confess,  a  very  specious  appearance.  The  whole  difficulty  of  the  case  rests 
upon  it ;  and  I  am  not  surprised  at  the  impression  it  has  made,  having  long 
felt  the  force  of  it  myself.  A  fair  trader,  it  is  said,  is  deceived  by  the  mis- 
placed confidence  of  the  consignor.  The  purchaser  sees  a  title  to  the  deli- 
very of  the  goods  placed  in  the  hands  of  a  man  who  offers  them  to  sale. 
Goods  not  arrived  are  every  day  sold  without  any  suspicion  of  distress,  on 
speculations  of  the  fairest  nature.  The  purchaser  places  no  credit  in  the 
consignee,  but  in  the  indorsement  produced  to  him,  which  is  the  act  of  the 
consignor.  The  first  consideration  which  affects  this  argument  is,  that  it 
proves  too  much,  and  is  inconsistent  with  the  admission.  But  let  us  exa- 
mine what  the  legal  right  of  the  vendor  is,  and  whether,  with  respect  to  him, 
the  assignee  of  a  bill  of  lading  stands  on  a  better  ground  than  the  consig- 
nee from  whom  he  received  it.  I  state  it  to  be  a  clear  proposition,  that  the 
vendor  of  goods  not  paid  for  may  retain  the  possession  against  the  vendee ; 
not  by  aid  of  any  equity,  but  on  grounds  of  law.  Our  oldest  books(rt)  con- 
sider the  payment  of  the  price  (day  not  being  given)  as  a  condition  prece- 
dent implied  in  the  contract  of  sale ;  and  that  the  vendee  cannot  take  the 
goods,  nor  sue  for  them,  without  tender  of  the  price.  If  day  had  been  given 
for  payment,  and  the  vendee  could  support  an  action  of  trover  against  the 
vendor,  the  price  unpaid  must  be  deducted  from  the  damages,  in  the  same 
manner  as  if  he  *had  brought  an  action  on  the  contract,  for  the  non-  r#  .  aq-i 
delivery.  Snee  v.  Prescott,  1  Atk.  245.  The  sale  is  not  executed  L  J 
before  delivery :  and  in  the  simplicity  of  former  times,  a  delivery  into  the 
actual  possession  of  the  vendee  or  his  servant  was  always  supposed.  In  the 
variety  and  extent  of  dealing  which  the  increase  of  commerce  has  intro- 
duced, the  delivery  may  be  presumed  from  circumstances,  so  as  to  vest  a 
property  in  the  vendee.  A  destination  of  the  goods  by  the  vendor  to  the 
use  of  the  vendee ;  the  marking  them,  or  making  them  up  to  be  delivered ; 
the  removing  them  for  the  purpose  of  being  delivered,  may  all  entitle  the 
vendee  to  act  as  owner,  to  assign,  and  to  maintain  an  action  against  a  third 
person,  into  whose  hands  they  have  come.  But  the  title  of  the  vendor  is 
never  entirely  divested,  till  the  goods  have  come  into  the  possession  of  the 
vendee.  He  has  therefore  a  complete  right,  for  just  cause,  to  retract  the 
intended  delivery,  and  to  stop  the  goods  in  truimtu.  The  cases  determined 
in  our  courts  of  law  have  confirmed  this  doctrine,  and  the  same  law  obtains 
ill  oilier  countries. 

In  an  action  tried  before  me  at  Guildhall,  after  the  last  Trinity  Term,  it 
appeared  in  evidence,  that  one  Bowering  had  bought  a  cask  of  indigo  of  Vei'- 

(a)  See  Hob.  41,  and  tlic  year-book  there  cited. 


(2b  SMITHS  LEADING  CASES. 

ruloz  and  Co.  at  Amsterdam,  wliicli  was  sent  from  the  warehouse  of  the  seller, 
and  shipped  on  board  a  vessel  commanded  by  one  Tulloh,  by  the  appoint- 
ment of  Bowering.  The  bills  of  lading  were  made  out,  and  signed  by 
Tulloh,  to  deliver  to  Bowering  or  order,  who  immediately  indorsed  one  of 
them  to  his  correspondent  in  London,  and  sent  it  by  the  post.  Verrulez 
having  information  of  Bowering's  insolvency  before  the  ship  sailed  from  the 
Texel  summoned  Tulloh  the  ship-master  before  the  court  at  Amsterdam, 
who  ordered  him  to  sign  other  bills  of  lading,  to  the  order  of  Verrulez. 
Upon  the  arrival  of  the  ship  in  London,  the  ship-master  delivered  the  goods, 
according  to  the  last  bills,  to  the  order  of  Verrulez.  This  case,  as  to  the 
practice  of  merchants,  deserves  particular  attention,  for  the  judges  of  the 
court  at  Amsterdam  are  merchants,  of  the  most  extensive  dealings,  and  they 
are  assisted  by  very  eminent  lawyers.  The  cases  in  our  law,  which  I  have 
taken  some  pains  to  collect  and  examine,  are  very  clear  upon  this  point. 
Snee  v.  Prescott,  though  in  a  court  of  equity,  is  professedly  determined  on 
legal  grounds  by  Lord  Hardwicke,  who  was  well  versed  in  the  princii^les  of 
r*lim  *^^^;  '^^^  '^^  '^^  ^^  authority,  not  only  in  support  of  the  right  of  the 
L  -'  owner  unpaid  to  retain  against  the  consignee,  but  against  those 
claiming  under  the  consignee  by  assignment  for  valuable  consideration,  and 
without  notice.     But  the   case  of  Fearon  v.  Bowers, («)  tried  before  Lord 

(a)  Fearon  v.  Bowers,  Guildhall,  March  28,  1753,  coram  Lee,  C.  J. 

Detinue  against  the  master  or  captain  of  a  ship.  On  the  general  issue  pleaded,  tlie 
case  appeared  to  be,  that  one  Hall,  of  Salisbury,  had  written  to  Askell  &  Co.,  merchants 
at  Malaga,  to  send  him  20  butts  of  olive  oil,  which  Askell  accordingly  bought,  and  ship- 
ped on  board  the  ship  Tavistock,  of  which  the  defendant  was  commander,  who  signed 
three  bills  of  lading  acknowledging  the  receipt  of  the  goods,  to  be  delivered  to  tiie  order 
of  the  shipper.  In  the  bills  was  the  usual  clause — that  one  being  performed,  the  other 
two  should  be  void. 

The  goods  being  thus  shipped,  Askell  sent  an  invoice  thereof,  and  also  one  of  the  bills 
of  lading,  to  Hall,  indorsed  by  Askell,  to  deliver  the  contents  to  Hall :  and  Askell  at  the 
same  time  sent  to  Jones,  his  partner  in  England,  a  bill  of  exchange  drawn  on  Hall  for  the 
amount  of  the  price  of  the  oil :  and  also  another  of  the  bills  of  lading  indorsed  by  Askell 
to  deliver  the  contents  to  Jones.  The  bill  of  exchange  was  presented  to  Hall,  but  not 
being  paid  by  him  it  was  returned  protested  ;  whereupon  Jones,  on  the  1st  of  September, 
175ii  (a  day  or  two  after  the  ship  arrived,)  applied  to  the  defendant  to  deliver  the  oils  to 
him,  and  having  produced  his  bill  of  lading,  the  defendant  promised  to  deliver  them  ac- 
cordino-ly.  But  the  ship  not  being  reported  to  the  custom-house,  the  oils  could  not  be 
then  delivered;  and  before  they  were  delivered,  the  plaintiff,  on  the  3rd  of  September,  pro- 
duced  the  bill  of  lading  sent  to  Hail,  with  an  indorsement  thereon  by  Hall  to  deliver  the 
contents  to  the  plaintiff,  and  also  the  invoice,  upon  the  credit  of  which  he  had  advanced  to 
Hall  200/.  Notwithstanding  this,  the  defendant  afterwards  delivered  the  oils  to  Jones, 
and  took  his  receipt  for  them  on  the  back  of  the  bill  of  lading. 

For  the  plaintiff  it  was  contended,  that  the  bill  of  lading  indorsed  to  H.ill,  and  by  him 
to  the  plaintiff,  had  fixed  the  property  of  the  goods  in  the  plaintiff.  That  the  consignee 
of  a  bill  of  lading  has  such  a  property  that  he  may  assign  it  over;  Evans  v.  Martktt,  1 
Lord  Raym.  271.  There  it  is  laid  down,  if  goods  are  by  bill  of  lading  consigned  to  A., 
A.  is  the  owner,  and  must  bring  the  action  against  the  master  of  the  ship  if  they  are  lost: 
but  if  the  bill  be  special  to  deliver  to  A.  for  the  use  of  B.,  B.  ought  to  bring  the  action  ; 
but  if  the  bill  be  general,  and  the  invoice  only  shows  they  are  upon  the  account  of  B.,  A. 
outrht  to  bring  the  action,  for  the  property  is  in  him,  and  B.  has  only  a  trust ;  per  totam 
curiam.  Holt,  C.  J.,  said  the  consignee  of  a  bill  of  lading  has  such  a  property  that  he 
may  assign  it  over;  and  Shower  said,  it  had  been  adjudged  so  in  the  Exchequer.  It  has 
been  further  insisted,  that  the  plaintiff  had  advanced  the  200/.  on  the  credit  of  the  bill  of 
ladin'jf,  in  the  course  of  trade,  and  no  objection  was  made  that  the  oils  had  been  paid  for  ; 
for  that  would  prove  too  much,  namely,  that  the  bill  of  lading  was  not  negotiable.  And  the 
indorsement  was  compared  to  the  indorsement  of  a  bill  of  exchange,  which  is  good,  though 
the  bill  originally  was  obtained  by  fraud.  iMerchants  were  examined  on  both  sides,  and 
seemid  to  afree  that  the  indorsement  of  a  bill  of  lading  vests  the  property;  but  that  the 
original  consignor,  if  not  paid  for  the  goods,  had  a  right,  by  any  means  that  he  could,  to 


MASON     V.     L  I  C  K  B  A  R  R  O  W.  727 

Chief  Justice  Lee,  is  a  case  at  law,  and  it  is  to  the  same  effect  as  Snee  v. 
Prescot.  So  also  is  the  case  of  the  Assignees  of  Burgall  v.  Howard, (&) 
tefore  Lord  Mansfield.  The  right  of  the  consignor  to  stop  the  goods  is  here 
considered  as  a  legal  right.  It  will  make  no  difference  in  the  case  whether 
the  right  is  considered  as  springing  from  the  original  property  not  yet  trans- 
ferred by  delivery,  or  as  a  right  to  retain  the  things  as  a  pledge  for  the  price 
unpaid.  In  all  the  cases  cited  in  the  course  of  the  argument,  the  right  of 
the  consignor  to  stop  the  goods  is  admitted  as  against  the  consignee.  But 
it  is  contended  that  the  right  ceases  as  against  a  person  claiming  under  the 
consignee  for  a  valuable  consideration,  and  without  notice  that  the  price  is 
unpaid.  To  support  this  position,  it  is  necessary  to  maintain  that  the  right 
of  the  consignor  is  not  a  perfect  legal  right  in  the  thing  itself,  but  that  is 
only  founded  upon  a  personal  exception  to  the  consignee,  which  would  pre- 
clude his  demand  as  contrary  to  good  faith,  and  unconscionable.  If  the  con- 
signor had  no  legal  title,  the  question  between  him  and  the  bona  fide  pur- 
chaser from  the  consignee  would  turn  on  very  nice  considerations  of  equity. 
But  a  legal  lien,  as  well  as  a  right  of  property,  precludes  these  considera- 
tions ;  and  the  admitted  right  of  the  consignor  to  stop  the  goods  in  transitu 
as  against  the  consignee,  can  only  rest  upon  his  original  title  as  owner,  not 
divested,  or  upon  a  legal  title  to  hold  the  possession  of  the  goods  till  the 
price  is  paid,  as  a  pledge  for  the  price.  It  has  been  asserted  in  the  course 
of  the  argument,  that  the  right  of  the  consignor  has  by  judicial  determina- 

stop  tlicir  coming  to  the  hands  of  the  consignee  till  paid  for.  One  of  the  witnesses  said, 
he  liad  a  hlie  case  before  the  Chancellor,  who  upon  that  occasion  said,  he  thought  the  con- 
sin^nor  had  a  right  to  get  the  goods  in  such  a  case  back  into  his  hands  In  any  way,  so  as 
he  did  not  steal  them. 

It  aho  appeared  by  the  evidence  of  merchants  and  captains  of  ships,  that  the  usage  was, 
where  three  bills  of  lading  were  signed  by  the  captain,  and  indorsed  to  different  persons, 
the  captain  had  a  rigiit  to  deliver  tlie  goods  to  whichever  he  thought  proper  ;  that  he  was 
discharged  by  a  delivery  to  either  with  a  receipt  on  the  bill  of  lading,  and  was  not  obliged 
to  look  into  the  invoice  or  consider  the  merits  of  the  different  claims. 

Lep,  C.  J.,  in  summing  up  the  evidence,  said  that,  to  be  sure,  nakedly  considered,  a  bill 
of  lading  transfers  tlie  property,  and  a  right  to  assign  that  property  by  indorsement:  tliat 
the  invoice  strengthens  that  right  by  showing  a  farther  intention  to  transfer  the  properly. 
Hut  it  appeared  in  this  case,  that  Jones  had  the  other  bill  of  lading  to  be  as  a  curb  on 
Hall,  who  in  fact  had  never  paid  for  the  goods.  And  it  appeared  by  the  evidence,  that 
according  to  the  usage  of  trade,  the  captain  was  not  concerned  to  examine  who  had  the 
best  rio^lu  on  the  different  bills  of  lading.  All  he  had  to  do  was  to  deliver  the  goods  upon 
one  of  the  bills  of  lading,  wliich  was  done.  The  jury  therefore  were  directed  by  the  Chief 
Justice  to  find  a  verdict  for  the  defendant,  which  they  accordingly  did. 

(6)   Assigfnees  of  Burghall,  a  bankrupt,  v.  Howard. 

At  Guildhall  sittings  after  Hil.  32  G.  2,  coram  Lord  Mansfield. 

One  Burghall  at  London  gave  an  order  to  Bromley  at  Liverpool  to  send  him  a  quantity 
of  cheese.  Bromley  accordingly  shipped  a  ton  of  cheese  on  board  a  ship  there,  whereof 
Howard,  the  defendant,  *was  master,  who  signed  a  bill  of  lading  to  deliver  it  in  pji  |i 
good  condition  to  Burghall  in  London.  The  ship  arrived  in  the  Thames,  but  Burg- 
hall having  become  a  bankrupt,  the  defendant  was  ordered,  on  behalf  of  Bromley,  not  to 
deliver  the  goods,  and  accordingly  refused,  though  the  freight  was  tendered.  It  appe.ned 
by  tiio  plainlifi''s  witnesses  that  no  particular  ship  was  mentioned  whereby  the  cheese 
sliould  be  sent,  in  which  case  the  shi|)per  was  to  be  at  the  risk  of  the  peril  of  the  seas. 
The  action  was  on  the  case  upon  the  custom  of  the  realm  against  the  defendant  as  a 
carrier. 

Lord  M'insjield  was  of  opinion  that  the  plaintiffs  had  no  foundation  to  recover;  and 
said,  he  had  known  it  several  times  ruled  in  Chancery,  that  where  the  consignee  becomes 
a  bankrupt,  and  no  part  of  the  price  had  been  paid,  that  it  was  lawful  for  the  consignor 
to  seize  the  goods  before  they  come  to  the  hands  of  the  consignee  or  his  assignees;  and 
that  this  was  ru!ed,  not  upon  principles  of  equity  only,  but  the  laws  of  properly. 

The  plaintiffs  were  nonsuited. 


728  smith's   leading    cases. 

tions  been  treated  as  a  mere  equitable  claim  in  cases  between  him  and  the 
consignee.  To  examine  the  force  of  this  assertion,  it  is  necessary  to  take  a 
review  of  the  several  determinations. 

The  first  is  the  case  of  AVright  v.  Campbell,  4  Burr.  204G,  on  which  the 
chief  stress  is  laid.  The  first  observation  that  occurs  upon  that  case  is,  that 
nothing  was  determined  by  it.  A  case  was  reserved  by  the  judge  at  Nisi 
r*4ioi  -'■^^■'^^J  ^^  *^^  *argument  of  which  the  Court  thought  the  facts  imper- 
^  "-^  fcctly  stated,  and  directed  a  new  trial.  That  case  cannot  therefore 
be  urged  as  a  decision  upon  the  point.  But  it  is  quoted  as  containing  in  the 
report  of  it  an  opinion  of  Lord  Mansfield,  that  the  right  of  the  consignor  to 
stop  the  goods  cannot  be  set  up  against  a  third  person  claiming  under  an 
indorsement  for  value  and  without  notice.  The  authority  of  such  an  opinion, 
though  no  decision  had  followed  upon  it,  would  deservedly  be  very  great, 
from  the  high  respect  due  to  the  experience  and  wisdom  of  so  great  a  judge. 
But  I  am  not  able  to  discover  that  his  opinion  was  delivered  to  that  extent, 
and  I  assent  to  the  opinion  as  it  was  delivered,  and  very  correctly  applied 
to  the  case  then  in  question.  Lord  Mansfield  is  there  speaking  of  the  con- 
signment of  goods  to  a  factor  to  sell  for  the  owner;  and  he  very  truly  ob- 
serves, 1st,  that  as  against  the  factor,  the  owner  may  retain  the  goods; 
2ndly,  that  a  person  into  whose  hands  the  factor  has  passed  the  consign- 
ment with  notice,  is  exactly  in  the  same  situation  with  the  factor  himself; 
3rdly,  that  a  bona  fide  purchaser  from  the  factor  shall  have  a  right  to  the 
delivery  of  the  goods,  because  they  were  sold  bona  fide,  and  by  the  owner's 
own  authority.  If  the  owner  of  the  goods  entrust  another  to  sell  them 
for  him,  and  to  receive  the  price,  there  is  no  doubt  but  that  he  has  bound 
himself  to  deliver  the  goods  to  the  purchaser;  and  that  would  hold  equally, 
if  the  goods  had  never  been  removed  from  his  warehouse.  The  question  on 
the  right  of  the  consignor  to  stop  and  retain  the  goods,  can  never  occur 
where  the  factor  has  acted  strictly  according  to  the  orders  of  his  principal, 
and  where,  consequently,  he  has  bound  him  by  his  contract.  There  would 
be  no  possible  ground  for  argument  in  the  case  now  before  the  Court,  if  the 
plaintifi"s  in  the  action  could  maintain,  that  Turings  and  Co.  had  sold  to 
them  by  the  intervention  of  Freeman,  and  were  therefore  bound  ex  contractu 
to  deliver  the  goods.  Lord  Mansfield's  opinion  upon  the  direct  question  of 
the  right  of  the  consignor  to  stop  the  goods  against  a  third  pai'ty,  who  has 
obtained  an  indorsement  of  the  bill  of  lading,  is  quoted  in  favour  of  the  con- 
signor, as  delivered  in  two  cases  at  Nisi  Prius;(a)  Savignac  v.  Cuff  in  1778, 
and(/>)  Stokes  v.  La  Riviere  in  1785.  Observations  are  made  on  these 
cases,  that  they  are  governed  by  particular  circumstances;  and  undoubtedly 
r-^A-io-i  'when  there  is  not  *an  accurate  and  agreed  state  of  them,  no  great 
L  -'  stress  can  be  laid  on  the  authority.  The  case  of  Caldwell  v.  Ball(c) 
is  improperly  quoted  on  the  part  of  the  plaintiffs  in  the  action,  because  the 
question  there  was  on  the  priority  of  consignments,  and  the  right  of  the  con- 
signor did  not  come  under  consideration.  The  case  of  Hibbert  v.  Carter(<:Z) 
was  also  cited  on  the  same  side,  not  as  having  decided  any  question  upon  the 
consignor's  right  to  stop  the  goods,  but  as  establishing  a  position  that  by 
the  indorsement  of  the  bill  of  lading,  the  property  was  so  completely  trans- 
Co)  Ante,  p.  391.  (h)  Ante,  p.  400. 
(c)   1  Term  Rep.  B.  R.  205.                                {d)  1  Term  Rep.  B.  R.  7-15. 


MASON    V.    L  I  C  K  B  A  R  R  0  W.  729 

ferred  to  the  indorsee,  that  the  shipper  of  the  goods  had  no  longer  an  insur- 
able interest  iu  them.  The  bill  of  lading  in  that  case  had  been  indorsed  to 
a  creditor  of  the  shipper ;  and,  undoubtedly,  if  the  fact  had  been  as  it  was  at 
first  supposed,  that  the  cargo  had  been  accepted  in  payment  of  the  debt,  the 
conclusion  would  have  been  just :  for  the  property  of  the  goods,  and  the 
risk,  would  have  completely  passed  from  the  shipper  to  the  indorsee ;  it 
would  have  amounted  to  a  sale  executed  for  a  consideration  paid.  But  it  is 
not  to  be  inferred  from  that  case,  that  an  indorsement  of  a  bill  of  lading, 
the  goods  remaining  at  the  risk  of  the  shipper,  transfers  the  property  so  that 
a  policy  of  insurance  upon  them  in  his  name  would  be  void.  The  greater 
part  of  the  consignments  from  the  West  Indies,  and  all  countries  where  the 
balance  of  trade  is  in  favour  of  England,  are  made  to  a  creditor  of  the 
shipper;  but  they  are  no  discharge  of  the  debt  by  indorsement  of  the  bill 
of  lading;  the  expense  of  insurance,  freight,  duties,  are  all  charged  to 
the  shipper,  and  the  net  proceeds  alone  can  be  applied  to  the  discharge  of 
his  debt.  The  case,  therefore,  has  no  application  to  the  present  question. 
And  from  all  the  cases  that  have  been  collected,  it  does  not  appear  that 
there  has  ever  been  a  decision  against  the  legal  right  of  the  consignor  to 
stop  the  goods  iu  transitu,  before  the  case  now  brought  before  this  Court. 
"When  a  point  in  law  which  is  of  general  concern  in  the  daily  business  of 
the  world  is  directly  decided,  the  event  of  it  fixes  the  public  attention, 
directs  the  opinion,  and  regulates  the  practice  of  those  who  are  interested. 
But  where  no  such  decision  has  in  fact  occurred,  it  is  impossible  to  fix  any 
standard  of  opinion,  upon  loose  reports  of  incidental  arguments.  The  rule, 
therefore,  which  the  Court  is  to  lay  down  in  this  case,  will  have  the  effect, 
not  to  disturb,  *but  to  settle  the  notions  of  the  commercial  part  of  p^^^-i  j^-i 
this  country,  on  a  point  of  very  great  importance,  as  it  regards  the  L 
security  and  good  faith  of  their  transactions.  For  these  reasons  we  think 
the  judgment  of  the  Court  of  King's  Bench  ought  to  be  reversed. 


The  folloicing  account  of  the  further  proceedings   in  this  case  is  given  hy 
Mr.  East,  in  a  note  to  his  Reports,  vol.  2,  p.  19 : — 

This  case  first  came  on  upon  a  demurrer  to  evidence,  on  which  there  was 
judgment  for  the  plaintiff;  this  Court  holding,  that  though  the  vendor  of 
goods  might,  as  between  himself  and  the  vendee,  stop  them  in  transitu  to 
the  latter,  in  case  of  his  insolvency,  not  having  paid  for  them ;  yet  that  if 
the  vendee,  having  in  his  possession  the  bill  of  lading  indorsed  in  blank  by 
the  vendor,  before  such  stopping  in  transitu,  indorse  and  deliver  it  to  a  third 
person  for  a  valuable  consideration  and  without  notice  of  the  non-payment, 
the  right  of  the  vendor  to  stop  in  transitu  is  thereby  divested  as  against  such 
bona  tide  holder  of  the  bill.  This  judgment  was  reversed  upon  a  writ  of 
error  in  the  Exchequer  Chamber;  where  it  was  considered  that  a  bill  of 
lading  was  not  a  negotiable  instrument,  the  indorsement  of  which  passed  the 
property  prop>rio  vigore,  like  the  indorsement  of  a  bill  of  exchange  ;  though 
to  some  purposes  it  was  assignable  by  indorsement,  so  as  to  operate  as  a  dis- 
charge to  the  captain  who  made  a  delivery  bona  fide  to  the  assignee.  1  II. 
Black.  357.     The  latter  judgment  was  in  its  turn  reversed  in  the  House  of 


730  smith's   leading   cases. 

Lords  in  T.  33  G.  3,  and  a  venire  facias  de  novo  directed  to  be  awarded  by 
B.  II.  5  Term  Hep.  307,  and  2  H.  Black.  211.  The  ground  of  that  re- 
versal was,  that  the  demurrer  to  evidence  appeared  to  be  informal  on  the 
record  MS.  The  very  elaborate  opinion  delivered  by  Mr.  Justice  Buller, 
upon  the  principal  question  before  the  House,  a  copy  of  which  he  afterwards 
permitted  me  to  take,  I  shall  here  subjoin,  as  it  contains  the  most  compre- 
hensive view  of  the  whole  of  this  subject  which  is  any  where  to  be  found. 
A  venire  facias  de  novo  having  been  accordingly  awarded  by  B.  R.,  a  special 
verdict  was  found  upon  the  second  trial,  containing  in  substance  the  same 
facts  as  before;  with  this  addition,  that  the  jury  found,  that  by  the  custom 
r*41  ^~1  ^^  nierchants,  bills  of  lading  for  the  delivery  of  goods  to  the  order 
L  -■  *of  the  shipper  or  his  assigns,  are,  after  the  shipment,  and  before 
the  voyage  performed,  negotiable  and  transferable  by  the  shipper's  indorse- 
ment and  delivery,  or  transmitting  of  the  same  to  any  other  person  :  and 
that  by  such  indorsement  and  delivery  or  transmission,  the  property  in  such 
goods  is  transferred  to  such  other  person.  And  that  by  the  custom  of  mer- 
chants, indorsements  of  bills  of  lading  in  blank  may  be  filled  up  by  the  per- 
son to  whom  they  are  so  delivered  or  transmitted,  with  words  ordering  the 
delivery  of  the  goods  to  be  made  to  such  person  :  and  according  to  the  prac- 
tice of  merchants,  the  same,  when  filled  up,  have  the  same  operation  and 
effect  as  if  it  had  been  done  by  the  shipper.  On  this  special  verdict,  the 
Court  of  B.  R.,  understanding  that  the  case  was  to  be  carried  up  to  the 
House  of  Lords,  declined  entering  into  a  discussion  of  it ;  merely  saying, 
that  they  still  retained  the  opinion  delivered  upon  the  former  case,  and  gave 
judgment  for  the  plaintiffs.     5  Term  Rep.  683. 

LICKBARROW  AND  ANOTHER  V.  MASON  AND  OTHERS,  IN  ERROR. DOM. 

PROC.  1793. 

Buller,  J. — Before  I  consider  what  is  the  law  arising  on  this  case,  I  shall 
endeavour  to  ascertain  what  the  case  itself  is.  It  appears  that  the  two  bills 
of  lading  were  indorsed  in  blank  by  Turing,  and  sent  so  indorsed  in  the 
same  state  by  Freeman  to  the  plaintiffs,  in  order  that  the  goods  might,  on 
their  arrival  at  Liverpool,  be  taken  possession  of,  and  sold  by  the  plaintiffs, 
on  Freeman's  account.  I  shall  first  consider  what  is  the  effect  of  a  blank 
indorsement ;  and  secondly,  I  will  examine  whether  the  words,  "  to  be  so 
sold  by  the  plaintiffs  on  Freeman's  account,"  make  any  difference  in  the 
case.  As  to  the  first,  I  am  of  opinion  that  a  blank  indorsement  has  pre- 
cisely the  same  effect  that  an  indorsement  to  deliver  to  the  plaintiffs  would 
have.  In  the  case  of  bills  of  exchange,  the  effect  of  a  blank  indorsement  is 
too  universally  known  to  be  doubted ;  and,  therefore,  on  that  head  I  shall 
only  mention  the  case  of  Russell  v.  Langstaffe,  Dougl.  496,  where  a  man 
indorsed  his  name  on  copper-plate  checks,  made  in  the  form  of  promissory 
notes,  but  in  blank,  i.  e.  without  any  sum,  date,  or  time  of  payment :  and 
the  Court  held,  that  the  indorsement  on  a  blank  note  is  a  letter  of  credit  for 
r*4in  ^'^  *indefinite  sum;  and  the  defendant  was  liable  for  the  sum  after- 
L  ^  wards  inserted  in  the  note,  whatever  it  might  be.  In  the  case  of 
bills  of  lading,  it  has  been  admitted  at  your  Lordship's  bar,  and  was  so  in 
the  Court  of  King's  Bench,  that  a  blank  indorsement  has  the  same  effect  as 
an  indorsement  filled  up  to  deliver  to  a  particular  person  by  name.     In  the 


LICK  BARROW     V.     MASON.  731 

case  of  Snce  v.  Prcscot,  Lord  Ilardwicke  thought  that  there  was  a  distinc- 
tion between  a  bill  of  lading  indorsed  in  blank,  and  one  that  was  filled  up; 
and  upon  that  ground  part  of  his  decree  was  founded.  But  that  I  conceive 
to  be  a  clear  mistake.  And  it  appears  from  the  case  of  Savignac  v.  CuiF, 
{of  which  case  I  know  nothing  but  from  what  has  been  quoted  by  the  coun- 
sel, and  that  case  having  occurred  before  the  unfortunate  year  1780, (a)  no 
further  account  can  be  obtained,)  that  though  Lord  Mansfield  at  first  thought 
that  there  was  a  distinction  between  bills  of  lading  indorsed  in  blank  and 
otherwise,  yet  he  afterwards  abandoned  that  ground.  In  Solomons  v. 
Nyssen,  Mich.  1788,  2  Term  Rep.  674,  the  bill  of  lading  was  to  order  or 
assigns,  and  the  indorsement  in  blank ;  but  the  Court  held  it  to  be  clear 
that  the  property  passed.  He  who  delivers  a  bill  of  lading  indorsed  in 
blank  to  another,  not  only  puts  it  in  the  power  of  the  person  to  whom  it  is 
delivered,  but  gives  him  authority  to  fill  it  up  as  he  pleases;  and  it  has  the 
same  eftect  as  if  it  were  filled  up  with  an  order  to  deliver  to  him.  The  next 
point  to  be  considered  is,  what  diff"erence  do  the  words  "  to  be  sold  by  the 
plaintiffs  on  Freeman's  account,"  make  in  the  present  case?  It  has  been 
argued  that  they  prove  the  plaintiffs  to  be  factors  only.  But  it  is  to  be 
observed  that  these  words  are  not  found  in  the  bill  of  lading  itself :  and, 
therefore,  they  cannot  alter  the  nature  and  construction  of  it.  I  say  they 
were  not  in  the  bill  of  lading  itself;  for  it  is  expressly  stated  that  the  bill 
of  lading  was  sent  by  Freeman  in  the  same  state  in  which  it  was  received, 
and  in  that  there  was  no  restriction  or  qualification  whatever;  but  it  appeared 
by  some  other  evidence,  I  suppose  by  some  letter  of  advice,  that  the  goods 
were  so  sent,  to  be  so  sold  by  the  plaintiffs  on  Freeman's  account.  Sup- 
posing that  the  plaintiffs  are  to  be  considered  as  factors,  yet  if  the  bill  of 
lading,  as  I  shall  contend  presently,  passes  the  legal  property  in  the  goods, 
the  circumstance  of  the  plaintiffs  being  liable  to  render  an  account  to  Free- 
man for  those  goods  *afterwards,  will  not  put  Turing  in  a  better  ^  - ,  „-. 
condition  in  this  cause ;  for  a  factor  has  not  only  a  right  to  keep  L  J 
goods  till  he  is  paid  all  that  he  has  advanced  or  expended  on  account  of  the 
particular  goods,  but  also  till  he  is  paid  the  balance  of  his  general  account.f 
The  truth  of  the  case,  as  I  consider  it,  is,  that  Freeman  transferred  the  legal 
property  of  the  goods  to  the  plaintiffs,  who  were  to  sell  them,  and  pay  them- 
selves the  520/.  advanced  in  bills  out  of  the  produce;  and  so  be  accountable 
to  Freeman  for  the  remainder,  if  there  were  any.  But  if  the  goods  had 
not  sold  for  so  much  as  510/.,  Freeman  would  still  have  remained  debtor  to 
the  plaintiffs  for  the  difference;  and  so  far  only  they  were  sold  on  Freeman's 
account.  But  I  hold  that  a  factor  who  has  the  legal  property  in  goods,  can 
never  have  that  property  taken  from  him,  till  he  is  paid  the  uttermost 
farthing  which  is  due  to  him.      Kruger  v.  Wilcocks,  Ambl.  252. 

This  brings  me  to  the  two  great  questions  in  the  cause,  which  are  un- 
doubtedly of  as  much  importance  to  trade  as  any  question  which  ever  can 
arise.  The  first  is,  whether  at  law  the  property  of  goods  at  sea  passes  by 
the  indorsement  of  a  bill  of  lading  ?  The  second,  whether  the  defendant, 
who  stands  in  the  place  of  the  original  owner,  had  a  right  to  stop  the  goods 

(a)  Lord  Mansfield's  papers  were  then  burnt,  together  with  his  house,  in  the  riots  of 
that  period. 

t  Ace.  Hougrhton  v.  Mathews,  3  B.  &,  P.  488  ;  Mann  v.  Shifner,  2  East,  529  ;  Hudson 
v.  Grainger,  5  C.  &.  Ad.  27  ;  Drinkwater  v.  Goodwin,  Cowp.  251. 


732  smith's   leading  cases. 

in  transitu?  And  as  to  the  first,  every  autliority  which  can  be  adduced 
from  the  earliest  period  of  time  down  to  the  present  hour,  agree  that  at  hiw 
the  property  does  pass  as  absolutely  and  as  effectually  as  if  the  goods  hud 
been  actually  delivered  into  the  hands  of  the  consignee.  In  1G90  it  was 
so  decided  in  the  case  of  Wiseman  v.  Vandeputt,  2  Vern.  203.  In 
1G97,  the  Court  determined  again  in  Evans  v.  Martlett,  that  the  property 
passes  by  the  bill  of  lading.  That  case  is  reported  in  1  Lord  Raym.  271, 
and  in  12  Mod.  156 ;  and  both  books  agree  in  the  points  decided.  Lord 
Raymond  states  it  to  be,  that  if  goods  by  a  bill  of  lading  are  consigned  to  A., 
A.  is  the  owner,  and  must  bring  the  action  :  but  if  the  bill  be  special,  to  be 
delivered  to  A.,  to  the  use  of  B.,  B.  ought  to  bring  the  action :  but  if  the  bill 
be  general  to  A.,  and  the  invoice  only  shows  that  they  are  on  account  of  B. 
(which  I  take  to  be  the  present  case)  A.  ought  always  to  bring  the  action ; 
for  the  property  is  in  him,  and  B.  has  only  a  trust.  And  Holt,  C.  J.,  says 
the  consignee  of  a  bill  of  lading  has  such  a  property  as  that  he  may  assign 
r*J.mT  ^^^"^^^f  ^^'^  Shower  said  it  had  been  so  adjudged  *in  the  Exche- 
L  '^-J  quer.  In  12  Mod.  it  is  said  that  the  Court  held  that  the  invoice 
signified  nothing ;  but  that  the  consignment  in  a  bill  of  lading  gives  the 
property,  except  where  it  is  for  the  account  of  another;  that  is,  where  on 
the  face  of  the  bill  it  imports  to  be  for  another.  In  Wright  v.  Campbell, 
in  1767,  (4  Burr.  2046,)  Lord  Mansfield  said,  "  If  the  goods  are  bona  fide 
sold  by  the  factor  at  sea  (as  they  may  be  where  no  other  delivery  can  be 
given)  it  will  be  good  notwithstanding  the  stat.  21  Jac.  1.  The  vendee 
shall  hold  them  by  virtue  of  the  bill  of  sale,  though  no  actual  possession  be 
delivered ;  and  the  owner  can  never  dispute  with  the  vendee,  because  the 
goods  were  sold  bona  fide,  and  by  the  owner's  own  authority."  His  lordship 
added  (though  it  is  not  stated  in  the  printed  report)  that  the  doctrine  in 
Lord  Raymond  was  right,  that  the  property  of  goods  at  sea  was  transferrable. 
In  Fearon  v.  Bowers,  in  1753,  Lord  Chief  Justice  Lee  held,  that  a  bill  of 
lading  transferred  the  property,  and  a  right  to  assign  that  property  by  in- 
dorsement:  but  that  the  captain  was  discharged  by  a  delivery  under  either 
bill.  In  Snee  v.  Prescot,  in  1743,  (1  Atk.  245,)  Lord  Hardwicke  says, 
<'  Where  a  factor,  by  the  order  of  his  principal,  buys  goods  with  his  own 
money,  and  makes  the  bill  of  lading  absolutely  in  the  principal's  name,  to 
have  the  goods  delivered  to  the  principal,  in  such  case  the  factor  cannot 
countermand  the  bill  of  lading;  but  it  passes  the  property  of  the  goods 
fully  and  inevocably  to  the  principal."  Then  he  distinguishes  the  case  of 
blank  indorsement,  in  which  he  was  clearly  wrong.  He  admits,  too,  that  if 
upon  a  bill  of  lading  between  merchants  residing  in  different  countries,  the 
goods  be  shipped  and  consigned  to  the  principal  expressly  in  the  body  of  the 
bill  of  lading,  that  vests  the  property  in  the  consignee.  In  Caldwell  v.  Ball, 
in  1786,  (1  Term  Rep.  205,)  the  Court  held  that  the  indorsement  of  the 
bill  of  lading  was  an  immediate  transfer  of  the  legal  interest  in  the  cargo. 
In  Hibbert  v.  Carter,  in  1787,  (1  Term  Rep.  745,)  the  Court  held  again 
that  the  indorsement  and  delivery  of  the  bill  of  lading  to  a  creditor  prima 
facie  conveyed  the  whole  property  in  the  goods  from  the  time  of  its  delivery. 
The  case  of  Godfrey  v.  Furzo,  3  P.  Wms.  185,  was  quoted  on  behalf  of  the 
defendant.  A  merchant  at  Bilboa  sent  goods  from  thence  to  B.,  a  merchant 
r*llQT  ^^  London,  for  the  use  of  B.,  and  drew  bills  on  B.  for  the  money. 
»-         -^  The  goods  arrived  *in  London,  which  B.  received,  but  did  not  pay 


L  I  C  K  B  A  R  R  0  W    V.    MASON.  733 

the  money,  and  died  insolvent.  The  merchant  beyond  sea  brought  his  bill 
against  the  executors  of  the  merchant  in  London,  praying  that  the  goods 
might  be  accounted  for  to  him,  and  insisting  that  he  had  a  lien  on  them  till 
paid. 

Lord  Chancellor  says, — '<  When  a  merchant  beyond  sea  consigns  goods  to 
a  merchant  in  London  on  account  of  the  latter,  and  draws  bills  on  him  for 
such  goods,  though  the  money  be  not  paid,  yet  the  property  of  the  goods 
vests  in  the  merchant  in  London,  who  is  credited  for  them,  and  consequently 
they,  are  liable  to  his  debts.  But  where  a  merchant  beyond  sea  consigns 
goods  to  a  factor  in  London,  who  receives  them,  the  factor  in  this  case,  being 
only  a  servant  or  agent  for  the  merchant  beyond  sea,  can  have  no  property 
in  such  goods,  neither  will  they  be  affected  by  his  bankruptcy."  The  whole 
of  this  case  is  clear  law;  but  it  makes  for  the  plaintiifs  and  not  the  defend- 
ants. The  first  point  is  this  very  case;  for  the  bill  of  lading  here  is  gene- 
rally to  the  plaintiffs,  and  therefore  on  their  account ;  and  in  such  case, 
though  the  money  be  not  paid,  the  property  vests  in  the  consignee.  And 
this  is  so  laid  down  without  regard  to  the  question,  whether  the  goods  were 
received  by  the  consignee  or  not.  The  next  point  there  stated  is,  what  is 
the  law  in  the  case  of  a  pure  factor,  without  any  demand  of  his  own  ?  Lord 
King  says  he  would  have  no  property.  This  expression  is  used  as  between 
consignor  and  consignee,  and  obviously  means  no  more  than  that,  in  the  case 
put,  the  consignor  may  reclaim  the  property  from  the  consignee.  The  reason 
given  by  Lord  King  is,  because  in  this  case  the  factor  is  only  a  servant  or 
agent  for  the  merchant  beyond  sea.  I  agree,  if  he  be  merely  a  servant  or 
agent,  that  part  of  the  case  is  also  good  law,  and  the  principal  may  retain 
the  property.  But  then  it  remains  to  be  proved  that  a  man  who  is  in  ad- 
vance, or  under  acceptances  on  account  of  the  goods,  is  simply  and  merely  a 
servant  or  agent;  for  which  no  authority  has  been,  or,  as  I  believe,  can  be, 
produced.  Here  the  bills  were  drawn  by  Freeman  upon  the  plaintiffs  upon 
the  pame  day,  and  at  the  same  time,  as  he  sent  the  goods  to  them  ;  and 
therefore  this  must,  by  fair  and  necessary  intendment,  be  taken  to  be  one 
entire  transaction;  and  that  the  bills  were  drawn  on  account  of  the  goods, 
unless  the  contrary  appear. — So  far  from  the  *contrary  appearing  p.^,Q/^-] 
here,  when  it  was  thought  proper  to  allege  on  this  demurrer  that  the  L  ~  -' 
price  of  the  goods  was  not  paid,  it  is  expressly  so  stated ;  for  the  demurrer 
says,  that  the  price  of  the  goods  is  now  due  to  Turing  and  Son.  But  it 
finds  that  the  other  bills  were  afterwards  paid  by  the  plaintiffs;  and  con- 
sequently they  have  paid  for  the  goods  in  question.  As  between  the  prin- 
cipal and  mere  factor,  who  has  neither  advanced  nor  engaged  in  any  thing 
for  his  principal,  the  principal  has  a  right  at  all  times  to  take  back  his  goods 
at  will :  whether  they  be  actually  in  the  factor's  possession,  or  only  on  their 
passage,  makes  no  difference;  the  principal  may  countermand  his  order :  and 
though  the  property  may  remain  in  the  factor  till  such  countermand,  yet 
from  that  moment  the  property  revests  in  the  principal,  and  he  may  main- 
tain trover.  But  in  the  present  case  the  plaintiffs  are  not  that  mere  agent 
or  servant;  they  have  advanced  510/.,  on  the  credit  of  those  goods,  which 
at  a  rising  market  were  worth  only  557/. ;  and  they  have  beside,  as  I  con- 
ceive, the  legal  property  in  the  goods  under  the  bill  of  lading.  But  it  was 
contended  at  the  bar,  that  the  property  never  passed  out  of  Turing :  and  to 
prove  it,  Hob.  41  was  cited.      In  answer  to  this  I  must  beg  leave  to  say,  that 


734  smith's   LEADING     CASES. 

the  position  in  Ilobart  does  not  apply;  because  there  no  Jay  of  payment 
was  given  ;  it  was  a  bargain  for  ready  money  ;  but  here  a  month  was 
given  for  payment.  And  in  Noy's  Maxims,  87,  this  is  laid  down;  "If 
a  man  do  agree  for  a  price  of  wares,  he  may  not  carry  them  away  before 
he  hath  paid  for  them,  if  be  have  not  a  day  expressly  given  to  him 
to  pay  for  them."  Thorpe  v.  Thorpe,  Rep.  temp.  Holt,  96,  and  Brice 
v.  James,  Hep.  temp.  Lord  Mansfield,  S.  P.  So  Dy.  30  and  76.  And 
in  Shep.  Touch.  222,  it  is  laid  down,  that  '<  if  one  sell  me  a  horse,  or 
anything  for  money,  or  any  other  valuable  consideration,  and  the  same  thing 
is  to  be  delivered  to  me  at  a  day  certain,  and  by  our  agreement  a  day  is  set 
for  the  payment  of  the  money,  it  is  a  good  bargain  and  sale  to  alter  the  pro- 
perty thereof;  and  I  may  have  an  action  for  the  thing,  and  the  seller  for 
his  money."  Thus  stand  the  authorities  on  the  point  of  legal  property  ;  and 
from  hence  it  appears  that  for  upwards  of  100  years  past  it  has  been  the 
universal  doctrine  of  Westminster-hall,  that  by  a  bill  of  lading,  and  by  the 
assignment  of  it,  the  legal  property  does  pass.  And,  as  I  conceive,  there  is 
r  ion  ^^  judgment,  *nor  even  a  dictum,  if  properly  understood,  which 
L  "^  J  impeaches  this  long  string  of  cases.  On  the  contrary,  if  any  argu- 
ment can  be  drawn  by  analogy  from  older  cases  on  the  vesting  of  property, 
they  all  tend  to  the  same  conclusion.  If  these  cases  be  law,  and  if  the  legal 
property  be  vested  in  the  plaintiffs,  that,  as  it  seems  to  me,  puts  a  total  end 
to  the  present  case ;  for  then  it  will  be  incumbent  on  the  defendant  to  show 
that  they  have  superior  equity  which  bears  down  the  letter  of  the  law  ;  and 
which  entitles  them  to  retain  the  goods  against  the  legal  right  of  the  plain- 
tiflfs,  or  they  have  no  case  at  all.  I  find  myself  justified  in  saying  that  the 
legal  title,  if  in  the  plaintiffs,  must  decide  this  cause  by  the  very  words  of 
the  judgment  now  appealed  against;  for  the  noble  Lord  who  pronounced  that 
judgment,  emphatically  observed  in  it,  "  that  the  plaintiffs  claim  under  Free- 
man ;  but  though  they  derive  a  title  under  him,  they  do  not  represent  him, 
so  as  to  be  answerable  for  his  engagements;  nor  are  they  affected  by  any 
notice  of  those  circumstances  which  would  bar  the  claims  of  him  or  his 
assignees."  This  doctrine,  to  which  I  fully  subscribe,  seems  to  me  to  be  a 
clear  answer  to  any  supposed  lien  which  Turing  may  have  on  the  goods  in 
question  for  the  original  price  of  them. 

But  the  second  question  made  in  the  case  is,  that  however  the  legal  pro- 
perty be  decided,  the  defendants,  who  stand  in  the  place  of  the  orgiual 
owner,  had  a  right  to  stop  the  goods  in  transitu,  and  have  a  lien  for  the 
original  price  of  them.  Before  I  consider  the  authorities  applicable  to  this 
part  of  the  case,  I  will  beg  leave  to  make  a  few  observations  on  the  right  of 
stopping  goods  in  transitu,  and  on  the  nature  and  principle  of  liens.  1st, 
Neither  of  them  are  founded  on  property ;  but  they  necessarily  suppose  the 
property  to  be  in  some  other  person,  and  not  in  him  who  sets  up  either  of 
these  right. f  They  are  qualified  rights,  which  in  given  cases  may  be  exer- 
cised over  the  property  of  another  :  and  it  is  a  contradiction  in  terms  to  say 
a  man  has  a  lien  upon  his  own  goods,  or  right  to  stop  his  own  goods 
in  transitu.  If  the  goods  be  his,  he  has  a  right  to  the  possession  of 
them  whether  they  be  in  transitu  or  not :  he  has  a  right  to  sell  or 
dispose  of  them  as  he  pleases,  without  the  option  of  any  other  person  : 

t  See  the  distinction  drawn  by  Bayley,  J.,  between  the  right  of  possession  and  that 
of  property,  post,  432  ;  in  notis. 


L  I  C  K  B  A  R  R  0  W    V.     M  A  S  0  N.  ioO 

but  he  who  has  a  lieu  only  on  goods,  has  no  right  so  to  do ;  he  can  only 
retain  theni  till  the  original  price  be  paid:  and  *therefore  if  goods  p;.._i.-)on 
are  sold  for  5001.,  and  by  a  change  of  the  market, before  they  L  ""J 
are  delivered,  they  become  next  day  worth  1000^.,  the  vendor  can  only 
retain  them  till  the  500/.  be  paid,  unless  the  bargain  be  absolutely  rescinded 
by  the  vendee's  refusing  to  pay  the  500/. — '2ndly,  Liens  at  law  exist  only 
in  cases  where  the  party  entitled  to  them  has  the  possession  of  the 
goods :  and  if  he  once  part  with  the  possession  after  the  lien  attaches,  the 
lien  is  gone.f  3rdly,  The  right  of  stopping  in  transitu  is  founded  wholly 
on  equitable  principles,  which  have  been  adopted  in  courts  of  law  •  and  as 
far  as  they  have  been  adopted,  I  agree  they  will  bind  at  law  as  well  as  in 
equity.  So  late  as  the  year  1690,  this  right,  or  privilege,  or  whatever  it 
may  be  called,  was  unknown  to  the  law.  The  first  of  these  propositions  is 
self-evident,  and  requires  no  argument  to  prove  it.  As  to  the  second,  which 
respects  liens,  it  is  known  and  unquestionable  law,  that  if  a  carrier,  a  farrier, 
a  tailor,  or  an  inn-keeper,  deliver  up  the  goods,  his  lien  is  gone.  So  also  is 
the  case  of  a  factor  as  to  the  particular  goods  :  but,  by  the  general  usage  in 
trade,  he  may  retain  for  the  balance  of  his  account  all  goods  in  his  hands, 
without  regard  to  the  time  when  or  on  what  account  he  received  them.  In 
Snee  v.  Prescot,  Lord  Hardwicke  says  that  which  not  only  applies  to  the 
case  of  liens,  but  to  the  right  of  stopping  goods  in  transitu  under  circum- 
stances similar  to  the  casein  judguient :  for  he  says,  where  goods  have  been 
negotiated,  and  sold  again,  there  it  would  be  mischievous  to  say  that  the 
vendor  or  factor  should  have  a  lien  upon  the  goods  for  the  price ;  for  then 
no  dealer  would  know  when  he  purchased  goods  safely.  So  in  Lempriere  v. 
Pasley,  (2  Term  R.  485,)  the  Court  said  it  would  be  a  great  inconvenience  to 
commerce  if  it  were  to  be  laid  down  as  law,  that  a  man  could  never  take  up 
money  upon  the  credit  of  goods  consigned  till  they  actually  arrived  in  port. 
There  are  other  cases  which  in  my  judgment  apply  as  strongly  against  the 
right  of  seizing  in  transitu  to  the  extent  contended  for  by  the  defendants; 
but  before  I  go  into  them,  with  your  lordships'  permission,  I  will  state 
shortly  the  facts  of  the  case  of  Snee  v.  Prescot,  with  a  few  more  observa- 
tions upon  it.  The  doctrine  of  stopping  in  transitu  owes  its  origin  to  courts 
of  equity ;  and  it  is  very  material  to  observe  that  in  that  case,  as  well  as 
many  others  which  have  followed  it  at  law,  the  question  is  not  as  r-^4()o-\ 
*the  counsel  for  the  defendants  would  make  it,  whether  the  property  L  ""  J 
vested  under  the  bill  of  lading  ?  for  that  was  considered  as  being  clear :  but 
whether,  on  the  insolvency  of  the  consignee,  who  had  not  paid  for  the  goods, 
the  consignor  could  countermand  the  consignment?  or,  in  other  words, 
divest  the  property  which  was  vested  in  the  cousignee  ?  Snee  and  Baxter, 
assignees  of  John  Toilet,  v.  Prescot  and  others,  1  Atk.  245.  Toilet,  a  mer- 
chant in  London  shipped  to  Ragueneau  and  Co.,  his  factors  at  Leghorn, 
serges  to  sell,  and  to  buy  double  the  value  in  silks;  for  which  the  factors 
were  to  pay  half  in  ready  money  of  their  own,  which  Toilet  would  repay 
by  bills  drawn  on  him.  The  silks  were  bought  accordingly,  and  shipped 
on  board  Dawson's  ship,  marked  T;  Dawson  signed  three  bills  of  lading, 
to  deliver  at  London  to  factors  consignors,  or  their  order.  The  factors  in- 
dorsed one  bill  of  lading  in  blank,  and  sent  it  to  Toilet,  who  filled  up  the 
same  and  pawned  it.  The  bills  drawn  by  the  factors  on  Toilet  were  not 
t  See  Levj  v.  Barnard,  8  Taunt.  149. 


736  smith's   leading    cases. 

paid,  and  Toilet  became  a  bankrupt.  The  factors  sent  another  bill  of  lading, 
properly  indorsed,  to  Prescot,  who  offered  to  pay  the  pawnee,  but  he  refused 
to  deliver  up  the  bill  of  lading  ;  on  which  Prescot  got  possession  of  the  goods 
from  Dawson,  under  the  last  bill  of  lading.  The  assignees  of  Toilet  brought 
the  bill  to  redeem  by  paying  the  pawnee  out  of  the  money  arising  by  sale, 
and  to  have  the  rest  of  the  produce  paid  to  them :  and  that  the  factors, 
although  in  possession  of  the  goods,  should  be  considered  as  general  creditors 
only,  and  be  driven  to  come  in  under  the  commission.  Decreed,  1st.  That 
the  factors  should  be  paid;  2nd,  the  pawnees;  and  3rd,  the  surplus  to  the 
assignees.  The  decree  was  just  and  right  in  saying  that  the  consignor,  who 
never  had  been  paid  for  the  goods,  and  the  pawnees,  who  had  advanced 
money  upon  the  goods,  should  both  be  paid  out  of  the  goods  before  the 
consignee  or  his  assignees  should  derive  any  benefit  from  them.  That 
w;is  the  whole  of  the  decree;  and  if  the  circumstance  of  the  consignor's 
interest  being  first  provided  for,  be  thought  to  have  any  weight,  I 
answer,  1st.  That  such  provision  was  founded  on  what  is  now  admitted, 
to  be  an  apparent  mistake  of  the  law,  in  supposing  that  there  was  a 
difference  between  a  full  and  a  blank  indorsement.  Lord  Hardwicke  con- 
sidered the  legal  property  in  that  case  to  remain  in  the  consignor,  and, 
r*4.9i1  *t'i6''efore,  gave  him  the  preference.  2ndly.  That  whatever  might 
L  -^  be  the  law,  the  mere  fact  of  the  consignor's  being  in  possession  was 
a  sufficient  reason  for  a  court  of  equity  to  say,  We  will  not  take  the  posses- 
sion from  you  till  you  have  been  paid  what  is  due  to  you  for  the  goods. 
Lord  Hardwicke  expressly  said — "  This  Court  will  not  say,  as  the  factors 
have  re-seized  the  goods,  that  they  shall  be  taken  out  of  their  hands  till  pay- 
ment of  the  half-price  which  they  have  laid  down  upon  them.  He  who  seeks 
equity  must  do  equity ;  and,  if  he  will  not,  he  must  not  expect  relief  from 
a  court  of  equity.  It  is  in  vain  for  a  man  to  say  in  that  court,  I  have  the 
law  with  me,  unless  he  will  show  that  he  has  equity  with  him  also.  If  he 
mean  to  rely  on  the  law  of  his  case,  he  must  go  to  a  court  of  law ;  and  so  a 
court  of  equity  will  always  tell  him  under  those  circumstances."  The  case 
of  Snee  v.  Prescot  is  miserably  reported  in  the  printed  book  :  and  it  was  the 
misfortune  of  Lord  Hardwicke,  and  of  the  public  in  general,  to  have  many 
of  his  determinations  published  in  an  incorrect  and  slovenly  way  :  and,  per- 
haps, even  himself,  by  being  very  diffuse,  has  laid  a  foundation  for  doubts 
which  otherwise  would  never  have  existed.  I  have  quoted  that  case  from  a 
MS.  note  taken,  as  I  collect,  by  Mr.  John  Cox,  who  was  counsel  in  the 
cause ;  and  it  seems  to  me  that,  on  taking  the  whole  of  the  case  together,  it 
is  apparent,  that,  whatever  might  have  been  said  on  the  law  of  the  case  in 
a  most  elaborate  opinion,  Lord  Hardwicke  decided  on  the  equity  alone,  aris- 
ing out  of  all  the  particular  circumstances  of  it,  without  meaning  to  settle 
the  principles  of  law  on  which  the  present  case  depends.  In  one  part  of  his 
judgment  he  says,  that  in  strictness  of  law,  the  property  vested  in  Toilet  at 
the  time  of  the  purchase :  '^but,  however  that  may  be,"  says  he,  "  this 
Court  will  not  compel  the  factors  to  deliver  the  goods  without  being  dis- 
bursed what  they  have  laid  out."  He  begins  by  saying,  ''  the  demand  is  as 
harsh  as  can  possibly  come  into  a  court  of  equity."  And  in  another  part 
of  his  judgment  he  says,  ''  Suppose  the  legal  property  in  these  goods  was 
vested  in  the  bankrupt,  and  that  the  assignees  had  recovered,  yet  this  Court 
would  not  suffer  them  to  take  out  execution  for  the  whole  value,  but  would 


LI  CKB  ARROW    V.    MASON.  737 

oblige  them  to  account/'  But  furtlicr,  as  to  the  right  of  seizing  or  stopping 
the  goods  in  transitu,  I  hold,  that  no  man  who  has  not  equity  on  p:;^ 405-1 
his  side  *can  have  that  right.  I  will  say  with  confidence,  that  no  L 
case  or  authority  till  the  present  judgment,  can  be  produced  to  show  that  he 
has.  But,  on  the  other  hand,  in  a  very  able  judgment  delivered  by  my 
brother  Ashurst,  in  the  case  of  Lerapriere  v.  Paisley,  in  1788,  2  Term  Bep. 
485,  he  laid  it  down  as  a  clear  principle,  that,  as  between  a  person  Avho  has 
an  equitable  lien,  and  a  third  person  who  purchases  a  thing  for  a  valuable 
consideration  and  without  notice,  the  prior  equitable  lien  shall  not  overreach 
the  title  of  the  vendee.  This  is  founded  on  plain  and  obvious  reason  :  for 
he  who  has  bought  a  thing  for  a  fair  and  valuable  consideration,  and  without 
notice  of  any  right  or  claim  by  any  other  person,  instead  of  having  equity 
against  him,  has  equity  in  his  favour  :  and  if  he  have  law  and  equity  both 
with  him,  he  cannot  be  beat  by  a  man  who  has  equal  equity  only.  Again, 
in  a  very  solemn  opinion,  delivered  in  this  house  by  the  learned  and  respect- 
able judge,(n)  who  has  often  had  the  honour  of  delivering  the  sentiments  of 
the  judges  to  your  lordships,  when  you  are  pleased  to  require  it,  so  lately 
as  the  14th  of  May,  1790,  in  the  case  of  Kinloch  v.  Craig,  3  Term  Rep. 
787,  it  was  laid  down  that  the  right  of  stopping  goods  in  transitu  never 
occurred  but  as  between  vendor  and  vendee ;  for  that  he  relied  on  the  case 
of  Wright  V.  Campbell,  4  Burr.  2050.  Nothing  remains  in  order  to  make 
that  case  a  direct  and  conclusive  authority  for  the  present,  but  to  show  that 
it  is  not  the  case  of  vendor  and  vendee.  The  terms  vendor  and  vendee  ne- 
cessarily mean  the  two  parties  to  a  particular  contract :  those  who  deal 
together,  and  between  whom  there  is  privity  in  the  disposition  of  the  things 
about  which  we  are  talking.  If  A.  sell  a  horse  to  B.,  and  afterwards  sell 
him  to  C,  and  C.  to  D.,  and  so  on  through  the  alphabet,  each  man  who  buys 
the  horse  is  at  the  time  of  buying  him  a  vendee ;  but  it  would  be  strange  to 
speak  of  A.  and  D.  together  as  vendor  and  vendee,  for  A.  never  sold  to  D., 
nor  did  D.  ever  buy  of  A.  These  terms  are  correlatives,  and  never  have 
been  applied,  nor  ever  can  be  applied,  in  any  other  sense  than  to  the  per- 
sons who  bought  and  sold  to  each  other.  The  defendants,  or  Turing,  in 
whose  behalf  and  under  whose  name  and  authority  they  have  acted,  never 
sold  these  goods  to  the  plaintiffs ;  the  plaintiffs  never  were  the  vendees  of 
either  of  them.  Neither  do  the  plaintiffs  (if  I  may  be  permitted  to  repeat 
again  the  forcible  words  of  *the  noble  judge  who  pronounced  the  p*jor"| 
judgment  in  question,)  represent  Freeman  so  as  to  be  answerable  L  "  -^ 
for  his  engagements,  or  stand  affected  by  any  notice  of  those  circumstances 
which  would  bar  the  claim  of  Freeman  or  his  assignees.  These  reasons, 
which  I  could  not  have  expressed  with  equal  clearness,  without  recurring  to 
the  words  of  the  two  great  authorities  by  whom  they  were  used,  and  to  whom 
I  always  bow  with  reverence,  in  my  humble  judgment  put  an  end  to  all 
questions  about  the  right  of  seizing  in  transitu.  Two  other  cases  were  men- 
tioned at  the  bar  which  deserve  some  attention.  One  is  the  case  of  the  as- 
signees of  Burghall  v.  Howard^i)  before  Lord  Mansfield  at  G-uildhall,  in 
1759  ;  where  the  only  point  decided  by  Lord  Mansfield  was,  that  if  a  con- 
signee become  a  bankrupt,  and  no  part  of  the  price  of  the  goods  be  paid,  the 
consignor  may  seize  the  goods  before  they  come  to  the  hands  of  the  eon- 

(a)  Eyre,  Ihcn  Lord  C.  B.  {b)  1  U.  Bla.  365,  n.  and  ante,  p.  410,  n.  a. 

Vol.  I. — 17 


738  smith's    leading   cases. 

signee  or  his  assignees.  This  was  most  clearly  right ;  but  it  does  not  apply 
to  the  present  case;  for  when  he  made  use  of  the  word  assignees,  he  un- 
doubtedly meant  assignees  under  a  commission  of  bankruptcy,  like  those 
who  were  then  before  him,  and  not  persons  to  whom  the  consignee  sold  the 
goods ;  for  in  that  case  it  is  stated  that  no  part  of  the  price  of  the  goods 
was  paid.  The  whole  cause  turns  upon  this  point.  In  that  case  no  part  of 
the  price  of  the  goods  was  paid,  and  therefore  the  original  owner  might  seize 
the  goods.  But  in  this  case  the  plaintiffs  had  paid  the  price  of  the  goods, 
or  were  under  acceptances  for  them,  which  is  the  same  thing;  and  therefore 
the  original  owner  could  not  seize  them  again.  But  the  note  of  that  case 
says,  Lord  Mansfield  added,  "  and  this  was  ruled,  not  upon  principles  of 
equity  only,  but  the  laws  of  property."  Do  these  words  fairly  import  that 
the  property  was  not  altered  by  a  bill  of  lading,  or  by  the  indorsement  of  it  ? 
That  the  liberty  of  stopping  goods  in  transitu  is  originally  founded  on  prin- 
ciples of  equity,  and  that  it  has,  in  the  case  before  him,  been  adopted  by 
the  law,  and  that  it  does  affect  property,  are  all  true ;  and  that  is  all  that 
the  words  mean;  not  that  the  property  did  not  pass  by  the  bill  of  lading. 
The  commercial  law  of  this  country  was  never  better  understood,  or  more 
correctly  administered,  than  by  that  great  man.  It  was  under  his  fostering 
hand  that  the  trade  and  the  commercial  law  of  this  country  grew  to  its  pre- 
r*i07i  ^^^^  amazing  size  :  and  when  we  find  him  in  other  instances  adopt- 
•-  "  ing  the  ^language  and  opinion  of  Lord  Chief  Justice  Holt,  and  say- 
ing, that  since  the  cases  before  him  it  had  always  been  held,  that  the  deli- 
very of  a  bill  of  lading  transferred  the  property  at  law,  and  in  the  year 
1767  deciding  that  very  point,  it  does  seem  to  me  to  be  absolutely  impossi- 
ble to  make  a  doubt  of  what  was  his  opinion  and  meaning.  All  his  deter- 
minations on  the  subject  are  uniform.  Even  the  case  of  Savignac  v.  Cuff,(a) 
of  which  we  have  no  account  besides  the  loose  and  inaccurate  note  produced 
at  the  bar,  as  I  understand  it,  goes  upon  the  same  principle.  The  note 
states  that  the  counsel  for  the  plaintiff  relied  on  the  property  passing  by  the 
bill  of  lading;  to  which  Lord  Man.sficld  answered,  the  plaintiff  has  lost  his 
lien,  he  standing  in  the  place  of  the  consignee.  Lord  Mansfield  did  not 
answer  mercantile  questions  so ;  which,  as  stated,  was  no  answer  to  the 
question  made.  But  I  think  enough  appears  on  that  case  to  show  the  grounds 
of  the  decision,  to  make  it  consistent  with  the  case  of  Wright  v.  Campbell, 
and  to  prove  it  a  material  authority  for  the  plaintiffs  in  this  case.  I  col- 
lect from  it  that  the  plaintiff  had  notice  by  the  letter  of  advice,  that 
Lingham  had  not  paid  for  the  goods ;  and  if  so,  then,  according  to  the 
case  of  Wright  v.  Campbell,  he  could  only  stand  in  Lingham's  place. 
But  the  necessity  of  recurring  to  the  question  of  notice  strongly  proves, 
that,  if  there  had  been  no  such  notice,  the  plaintiff,  who  was  the  assignee 
of  Lingham  the  consignee,  would  not  have  stood  in  Lingham's  place,  and 
the  consignor  could  not  have  seized  the  goods  in  transitu ;  but  that,  having 
seized  them,  the  plaintiff  would  have  been  entitled  to  recover  the  full  value 
of  them  from  him.  This  way  of  considering  it  makes  that  case  a  direct 
authority  in  point  for  the  plaintiffs.  There  is  another  circumstance  in  that 
case  material  for  consideration ;  because  it  shows  how  far  only  the  right  of 
seizing  in  transitu  extends,  as  between  the  consignor  and  consignee.     The 

(a)  Cited  in  2  Ttrm  Rep.  66, 


LICKBARROW    V.    MASON.  739 

plaintiff  in  tliat  action  was  considered  as  the  consignee ;  the  defendant,  tlie 
consignor,  had  not  received  the  full  value  for  his  goods;  but  the  consignee 
had  paid  150/.  on  account  of  them.  Upon  the  insolvency  of  the  consignee, 
the  consignor  seized  the  goods  in  transitu;  but  that  was  holden  not  to  be 
justifiable,  and  therefore  there  was  a  verdict  against  him.  That  was  an 
action  of  trover,  which  could  not  have  been  sustained  but  on  the  ground 
that  the  property  was  *vested  in  the  consignee,  and  could  not  be  p:|-<r)o-i 
seized  in  transitu  as  against  hira.  If  the  legal  property  had  remained  L  ~  -• 
in  the  consignor,  what  objection  could  be  stated  in  a  court  of  law  to  the  con- 
signor's taking  his  own  goods?  But  it  was  holden  that  he  could  not  seize 
the  goods;  which  could  only  be  on  the  ground  contended  for  by  Mr.  "Wal- 
lace, the  counsel  for  the  plaintiff,  that  the  property  was  in  the  consignee  : 
but  though  the  property  was  in  the  consignee,  yet,  as  I  stated  to  your  lord- 
ships in  the  outset,  if  the  consignor  had  paid  to  the  consignee  all  that  he 
had  advanced  on  account  of  the  goods,  the  consignor  would  have  had  a  right 
to  the  possession  of  the  goods,  even  though  they  had  got  into  the  hands  of 
the  consignee :  and  upon  paying  or  tendering  that  money,  and  demanding 
the  goods,  the  property  would  have  revested  in  him,  and  he  might  have 
maintained  trover  for  them  :  but  admitting  that  the  consignee  had  the  legal 
property,  and  was  therefore  entitled  to  a  verdict,  still  the  question  remained 
what  damages  he  should  recover;  and  in  ascertaining  them,  regard  was  had 
to  the  true  merits  of  the  case,  and  the  relative  situation  of  each  party.  If 
the  consignee  had  obtained  the  actual  possession  of  the  goods,  he  would  have 
had  no  other  equitable  claim  on  them  than  for  150/.  He  was  entitled  to  no 
more,  the  defendant  was  liable  to  pay  no  more ;  and  therefore  the  verdict 
was  given  for  that  sum.  This  case  proceeded  precisely  upon  the  same  prin- 
ciples as  the  case  of  Wiseman  v.  Vandeput ;  where,  though  it  was  deter- 
mined that  the  legal  property  in  the  goods,  before  they  arrived,  was  in  the 
consignee,  yet  the  Court  of  Chancery  held  that  the  consignee  should  not 
avail  himself  of  that  beyond  what  was  due  to  him  :  but  for  what  was  due, 
the  Court  directed  an  account;  and  if  anything  were  due  from  the  Italians 
to  the  Bonnells,  that  should  be  paid  to  the  plaintiffs.  The  plaintiffs  in  this 
cause  are  exactly  in  the  situation  of  the  plaintiffs  in  that  case :  for  they 
have  the  legal  property  in  the  goods ;  and,  therefore,  if  anything  be  due  to 
them,  even  in  equity,  that  must  be  paid  before  any  person  can  take  the 
goods  from  them :  and  520/.  was  due  to  them,  and  has  not  been  paid. 

After  these  authorities,  taking  into  consideration  also  that  there  is  no 
case  whatever  in  which  it  has  been  holden  that  goods  can  be  stopped  in  tran- 
situ, after  they  have  been  sold  and  paid  for,  or  money  advanced  upon  them 
bona  fide,  and  *without  notice,  I  do  not  conceive  that  the  case  is  open  ^.^oq-i 
to  any  arguments  of  policy  or  convenience ;  but  if  it  should  be  •-  -* 
thought  so,  I  beg  leave  ie  say,  that  in  all  mercantile  transactions,  one  great 
point  to  be  kept  uniformly  in  view  is,  to  make  the  circulation  and  negotia- 
tion of  properly,  as  quick,  as  easy,  and  as  certain  as  possible.  If  this  judg- 
ment stand,  no  man  will  be  safe  either  in  buying  or  in  lending  money  upon 
goods  at  sea.  That  species  of  property  will  be  locked  up;  and  many  a  man 
who  could  &upport  himself  with  honour  and  credit,  if  he  could  dispose  of 
such  property  to  supply  a  present  occasion,  would  receive  a  check  which 
industry,  caution,  ar  attention  could  not  surmount.  If  the  goods  ai-e  in  all 
cases  to  be  liable  to  the  original  owner  for  the  price,  what  ia  there  to  be 


740  smith's   leading    cases. 

bought?  There  is  nothing  but  the  chance  of  the  market;  and  that  the 
buyer  expects  as  his  profit  on  purchasing  the  goods,  without  paying  an  extra 
price  for  it.  But  Turing  has  transferred  the  property  to  Freeman,  in  order 
that  he  might  transfer  it  again,  and  has  given  him  credit  for  the  value  of  the 
goods.  Freeman  having  transferred  the  goods  again  for  value,  I  am  of 
opinion  that  Turing  had  neither  property,  lien,  nor  a  right  to  seize  in 
transitu.  The  great  advantage  which  this  country  possesses  over  most,  if 
not  all  other  parts  of  the  known  world,  in  point  of  foreign  trade,  consists  in 
the  extent  of  credit  given  on  exports,  and  the  ready  advances  made  on  im- 
ports :  but  amidst  all  these  indulgences,  the  wise  merchant  is  not  unmind- 
ful of  his  true  interests  and  the  security  of  his  capital.  I  veill  beg  leave  to 
state,  in  as  few  words  as  possible,  what  is  a  very  frequent  occurrence  in  the 
city  of  London  : — A  cargo  of  goods  of  the  value  of  2000?.  is  consigned  to  a 
merchant  in  London ;  and  the  moment  they  are  shipped,  the  merchant 
abroad  draws  upon  his  correspondent  here  to  the  value  of  that  cargo  ;  and  by 
the  first  post  or  ship  he  sends  him  advice,  and  incloses  the  bill  of  lading. 
The  bills,  in  most  cases,  arrive  before  the  cargo;  and  then  the  merchant  in 
London  must  resolve  what  part  he  will  take.  If  he  accepts  the  bills,  he 
becomes  absolutely  and  unconditionally  liable;  if  he  refuses  them,  he  disgraces 
his  correspondent,  and  loses  his  custom  directly.  Yet  to  engage  for  2000?., 
without  any  security  from  the  drawer,  is  a  bold  measure.  The  goods  may  be 
-OA-]  lost  at  sea;  and  then  the  merchant  here  is  left  to  recover  his  money 
L  -^  against  the  *drawer  as  and  when  he  may.  The  question  then  with  the 
merchant  is,  how  can  I  secure  myself  at  all  events  ?  The  answer  is,  I  will 
insure;  and  then  if  the  goods  come  safe,  I  shall  be  repaid  out  of  them;  or, 
if  they  be  lost,  I  shall  be  repaid  by  the  underwriters  on  the  policy  :  but  ihis 
cannot  be  done  unless  the  property  vest  in  him  by  the  bill  of  lading;  for 
otherwise  his  policy  will  be  void  for  want  of  interest ;"}"  and  an  insurance,  in 
the  name  of  the  foreign  merchant,  would  not  answer  the  purpose.  This  is 
the  case  of  the  merchant  who  is  wealthy,  and  has  the  2000Z.  in  his  banker's 
hands,  which  he  can  part  with,  and  not  find  any  inconvenience  in  so  doing ; 
but  there  is  another  case  to  be  considered,  viz. — Suppose  the  merchant  here 
has  not  got  the  2000/.,  and  cannot  raise  it  before  he  has  sold  the  goods  ? 
— the  same  considerations  arise  ia  his  mind  as  in  the  former  case,  with  this 
additional  circumstance,  that  the  money  must  be  procured  before  the  bills 
become  due.  Then  the  question  is,  how  can  that  be  done  ?  If  he  have  the 
property  in  the  goods,  he  can  go  to  market  with  the  bill  of  lading  and  the 
policy,  as  was  done  in  Snee  v.  Prescot;  and  upon  that  idea,  he  has  hitherto 
had  no  difficulty  iu  doing  so  :  but  if  he  have  not  the  property,  nobody  will 
buy  of  him ;  and  then  his  trade  is  undone.  But  there  is  still  a  third  case 
to  be  considered ;  for  even  the  wary  and  opulent  merchant  often  wishes  to 
sell  his  goods  whilst  they  are  at  sea.  I  will  put  the  case,  by  way  of  exam- 
ple, that  barilla  is  shipped  for  a  merchant  here,  at  a  time  when  there  has 
been  a  dearth  of  that  commodity,  and  it  produces  a  profit  of  25Z.  per  cent , 
whereas,  upon  an  average,  it  does  not  produce  above  121.  The  merchant 
has  advices  that  there  is  a  great  quantity  of  that  article  in  Spain,  intended 
for  the  British  market ;  and  when  that  arrives,  the  market  will  be  glutted, 
and  the  commodity  much  reduced  iu  value.     Pie  wishes,  therefore,  to  sell  it 

f  St.  19  G.  3,  cap  37,  sect.  ]. 


L  I  C  K  B  A  R  R  0  W     V.     MASON.  741 

immecliately  whilst  it  is  at  sea,  and  before  it  arrives;  and  the  profit  which 
he  gets  by  that  is  fair  and  honourable :  but  he  cannot  do  it  if  he  have  not 
the  property  by  the  bill  of  lading.  Besides,  a  quick  circulation  is  the  life 
and  soul  of  trade ;  and  if  the  merchant  cannot  sell  with  safety  to  the  buyer, 
that  must  necessarily  be  retarded.  From  the  little  experience  which  I 
acquired  on  this  subject  at  Guildhall,  I  am  confident  that,  if  the  goods  in 
question  be  retained  from  the  plaintiff  without  ^repaying  him  what  p*i.;>-|-| 
he  has  advanced  on  the  credit  of  them,  it  will  be  mischievous  to  the  L  '  J 
trade  and  commerce  of  this  country;  and  it  seems  to  me  that  not  only  com- 
mercial interest,  but  plain  justice  and  public  policy,  forbid  it.  To  sum  up 
the  whole  in  very  few  words:  the  legal  property  was  in  the  plaintiff;  the 
right  of  seizing  in  transitu  is  founded  on  equity.  No  case  in  equity  has 
ever  suffered  a  man  to  seize  goods  in  opposition  to  one  who  has  obtained  a 
legal  title,  and  has  advanced  money  upon  them ;  but  Lord  Hardwicke's 
opinion  was  clearly  against  it ;  and  the  law,  where  it  adopts  the  reasoning 
and  principles  of  a  court  of  equity,  never  has  and  never  ought  to  exceed  the 
bounds  of  equity  itself.  I  offer  to  your  lordships,  as  my  humble  opinion, 
that  the  evidence  given  by  the  plaintiff,  and  confessed  by  the  demurrer,  is 
sufficient  in  law  to  maintain  the  action. 

Ashurst  and  Grose,  Justices,  also  delivered  their  opinions  for  reversing 
the  judgment  of  the  Exchequer  Chamber. 

Eyre,  C.  J.,  Gould,  J.,  Heath,  J.,  Hotham,  B.,  Perrijn,  B.,  and  Thomson, 
B.,  contra. 

This  case  stood  over  from  time  to  time  in  the  House  :  and  was  postponed, 
in  order  to  consider  a  question  which  arose  in  another  case  of  Gibson  v. 
Minet,  upon  the  nature  and  effect  of  a  demurrer  to  evidence,  which  was 
thought  to  apply  also  to  the  present  ease ;  and,  finally,  the  House  reversed 
the  judgment  of  the  Exchequer  Chamber,  which  had  been  given  for  the 
defendant;  and  ordered  the  King's  Bench  to  award  a  venire  de  novo  (upon 
the  ground  that  the  demurrer  to  evidence  appeared  to  be  informal  upon  the 
record)  and  that  the  record  be  remitted. 


This   celebrated    case    involves   two  property  of  one  man  were  to  be  fli.-posej 

important  propositions.     The  former  is,  of  in  payment  of  the  debts  of  another. 

ilvit  the  unpaid  vendor  mny^in  case  of  The  doctrine   was    first    introduced    in 

the  vendee\s  insolvency,  slop  the  goods  Equity  by  the  cases  of  Wiseman  v.  Van- 

sold,  in  Iransilu.     The   latter,  that  the  deput,  2  Vern.  203;   Snee  v.  Prescot,  1 

right  U)  slop  in  transitu  may  he  defeated  Alk.  24G,  and  D'Aqiiila  v.   Latnberr,  2 

by  ncgntiating  the  bill  of  lading  with  a  Eden,  7.5,  Anib.  39.     It  has  since  hppn 

ben 'I  fide  indorsee.  repeatedly  discussed  in  courts  of  ci^minoii 

The  right  of  a  vendor  to  stop  in  transitu  law;  and  it  appears  strange,  that  tlioiij^h 

is  bestowed  upon  him  in  order  to  prevent  stoppage  in  transitu  has  been  for  many 

the  injustice  which  would  take  place,  if,  years  one  of  the  most  practically  pM-j.^i 

in  consequence  of  the  vendee's  insolv-  important  branches  *of'  cominer-  ■-         -■ 

ency,  while  the  price  of  the  goods  was  cial  law,  yet  its  precise  effect  upon  the 

yet  unpaiii,  they  were  to  be  seized  upon  contract  of  sale  has  never  as  yet  hnen 

m  satisfaction  of  his  liabilities,  and  so  the  ascertained.     [A  highly  interesting  dis- 


742 


S:MITnS     LEADING    CASES. 


qtiisition  upon  its  history  and  character 
will  be  found  in  Lord  Abinijor's  jud<r- 
inenl  in  Gibson  v.  Carruthers,  8  JMee, 
&  \V.  \i:m.] 

Tlie  question  whether  stoppapfo  in 
transitu  rescind  tlie  contract  of  sale  al- 
together, or  only  puts  the  vendor  in  pos- 
session of  a  lien  on  the  goods  defeasible 
r*4'^9  -I  on  payment*of  the  price  agreed 
L  -■  on,   has  often   been  niatter  of 

controversy,  particularly  in  Clay  v.  Har- 
rison, 10  1?.  &  C.  99,  and  was  said  in 
Stepiiens  v.  Wilkinson, 3  B.  &  Ad.  32:3, 
to  be  still  undetermined.  See  also 
Wilnihurst  v.  Bowker,  5  Bing.  N.  C. 
547;  [in  error,  8  Scott,  N.  R.  570; 
Gibson  V.  Carruthers,  8  Mee.  &  W.  321 ; 
VVentworlh  v.  Outhwaite,  10  Mee.  & 
W.  451;]  and  Edwards  v.  Brewer,  2 
Mee.  &  VV.  375.  Lord  Kenyon  in 
Hodgson  V.  Loy,  7  T.  R.  445,  was  of 
opinion  that  it  was  not  a  rescission  of 
the  sale,  but  was  (to  use  his  lordship's 
own  words)  "an  equitable  lien  adopted 
l)y  the  law  for  the  purpose  of  substantial 
justice,"  whence  it  was  held  to  follow 
tl'.at  part  payment  of  the  price  by  the 
vendee  would  not  destroy  the  right  to 
stop  in  transitu,  but  only  diminish  the 
lien  protanto.  Confusion  has  sometimes 
arisen  on  this  subject,  from  its  being  as- 
sumed that  a  vendor's  right  over  the 
goods  in  respect  of  his  price  is  subject  to 
the  same  rules  as  an  ordinary  lien  which 
cannot  exist  without  both  the  right  and 
the  fact  of  possession,  and  is  lost  and 
cannot  be  resumed,  if  the  party  claiming 
It  abandon  either  the  possession,  or  the 
right  to  possess  the  thing  over  which  it 
is  claimed:  whereas  "the  vendor's  right 
in  respect  of  his  price,"  says  Bayley,  J., 
delivering  judgment  in  Bloxam  v.  Sand- 
ers, 4  B.  &  C.  948,  "  is  not  a  mere  lien 
which  he  will  forfeit  if  he  parts  with  the 
possession,  but  grows  out  of  his  original 
ownership  and  dominion.  If  goods  are 
sold  on  credit,  and  nothing  is  agreed  on  as 
to  the  time  of  delivering  the  goods,  the 
vendee  is  immediately  entitled  to  the 
[)()ssession  ;  and  the  right  of  possession, 
and  the  right  of  property,  vest  at  once 
in  him;  but  his  right  of  possession  is 
not.  absolute,  it  is  liable  to  be  defeated  if 
he  become  insolvent  bofire  he  obtains 
possession,  Tooke  v.  Hollingworlh,  5  T. 
R.  215.  If  the  seller  has  despatched 
the  goods  to  the  buyer,  and  insolvency 
occur,  he  has  a  right  in  virtue  of  his 
original  ownership  to  stop  them  in  tran- 
situ. Mason  v.  Lickbarrow,  I  H.  Bia. 
357;  Ellis  V.  Hunt,  3T.  K.  404  ;  Hodg- 


son V.  Loy,  7  T.  R.  440;  Inglis  v.  Ushcr- 
wood,  1  East,  515;  Bothlingk  v.  Inglis, 
3  East,  381.  Why?  Because  the  ^jro- 
pcrty  is  vested  in  the  buyer,  so  as  to  sub- 
ject him  to  the  risk  of  any  accident,  but 
he  has  not  an  indefeasible  right  to  the 
possession,  and  his  insolvency  without 
payment  of  the  price  defeats  that  right. 
The  buyer,  or  those  who  stand  in  his 
place,  may  still  obtain  the  right  of  pos- 
session, it  they  will  pay  or  tender  the 
price,  or  they  may  still  act  on  their  right 
of  property  if  any  thing  unwarrantable 
is  done  to  that  right.  If,  for  instance, 
the  original  vendor  sell  when  he  ought 
not,  they  may  bring  a  special  action 
against  him  for  the  damage  they  sustain 
by  such  wrongful  sale,  and  recover  dam- 
ages to  the  extent  of  that  in-  r  -^a^o?  -, 
jury;  but  they  can  ^maintain  '-'  '  "  -I 
no  action  in  which  the  right  of  property 
and  right  of  possession  are  both  requisite, 
unless  they  have  both  those  rights,  Gor- 
don v.  Harper,  7  T.  R.  9."  This  lumin- 
ous view  of  the  principles  upon  which 
an  unpaid  vendor's  right  depends,  is,  as 
will  have  been  seen,  totally  inconsistent 
with  the  idea  that  stoppage  in  transitu 
operates  as  a  rescission  of  the  contract 
of  sale,  and  deserves  the  more  attention 
because  it  is  contained  in  the  written 
judgment  of  the  court  delivered  after  a 
curia  aduisari  vull;  see,  too,  Edwards 
V.  Brewer,  2  Mee.  &  W.  375;  [iMartin- 
dale  v.  Smith,  1  G.  &  D.  1 ;  1  Q.  B. 
397,  S.  C.  In  Wentworth  v.  Outhwaite, 
10  Mee.  &  W.  451,  Parke,  B.,  in  deliv- 
ering the  judgment  of  the  Court  of  Ex- 
chequer, stated  that  the  question  dis- 
cussed above,  "  what  the  effect  of  stop- 
page in  transitu  is,  whether  entirely  to 
rescind  the  contract,  or  only  to  replace 
the  vendor  in  the  same  position  as  if  he 
had  not  parted  with  the  possession,  and 
entitle  him  to  hold  the  goods  until  the 
price  be  paid  down,  is  a  point  not  yet 
finally  decided,"  and  that  "  there  are  dif- 
ficulties attending  each  construction." 
In  that  case,  one  of  several  parcels  of 
goods  sold  under  an  entire  contract  had 
reached  the  place  of  destination;  and 
upon  the  stoppage  in  transitu,  the  vendor 
insisted  that  the  eflect  was  to  rescind 
the  contract  of  sale  altogether  and  con- 
sequently to  revest  in  him  the  property 
in  the  part  which  had  reached  the  place 
of  destination.  The  barons  of  the  Ex- 
chequer decided  against  tliat  argument, 
but  tor  different  reasons;  the  majority 
of  the  court,  Parke,  Alderson,  and  Rolfe, 
BB.,  being  strongly  inclined    to  think, 


Lie  KB  ARROW    V.    MASON. 


7ii 


that  upon  the  weight  of  authority  a  stop- 
png-e  in  transitu  must  be  considered,  not 
as  a   rescission  of  tlie  contract,  but  as 
merely  replacing  the  vendor  in  the  same 
position  as  if  he  had  not  parted  with  the 
possession;  from  which  it  followed  that 
the  vendor's  right  of  lien  on   the  part 
stopped    was   revested,   and    no  more; 
whilst  Lord  Abinger  expressed  an  opi- 
nion, to  which  on  consideration  he  ad- 
hered, that   the   effect  of  stoppage  in 
transitu  is  to  rescind  the  contract;  but 
he  did  not  think  that  that  affected  the 
right  of  the  vendee  in  the  case  before 
the  Court,  to  retain  the  portion  of  ihe 
goods  which  had  been  actually  delivered 
to  him  ;  or,  in  other  words,  had  reached 
the  place  of  their  destination ;  more  es- 
pecially when  the  goods  and  the  price 
n)i<Tht  be  apportioned,  and  a  new  contract 
be  iuiplied  from  the  actual  delivery  and 
retention  of  a  part.     The  arguments  in 
Wentworth  v.  Outhwaite    contain    the 
autiiorities  on  either  side  of  the  question, 
to  which  may  be  added,  that  in  the  later 
case  of  Jenkyns  v.  Usborne,  8  Scott,  N. 
R.  5-2-2,  post,  433,  Tindal,  C.  J.,  in  deliv- 
ering a  considered  judgment  of  the  Court 
of  Common  Pleas,  spoke  of  stoppage  in 
transitu  as  a  right  to  rescind  the  con- 
r  M'^9  1  '''^^^ '  ^^^  ^'''^  nature  of  the 
•-      '    ^  J  right  was  not  there  in  question. 
It   is  conceived    (notwithstandmg    the 
weight  of  Lord  Abinger's  opinion  on  a 
subject  in  which  his  practised  and  saga- 
cious mind  was  eminently  calculated  to 
arrive  at  a  correct  conclusion)  that  the 
preponderance  of  reason  and  authority 
is  in  favour  of  the  opinion  expressed  by 
the  majority  of  the  court,  in  Wentworth 
V.  Outhwaite.]     Supposing  the  contract 
of  sale  not  to  be  rescinded,  it  seems  to 
follow,  that  the  goods,  while  detained, 
remain  at  the  risk  of  the  vendee,  and 
that    the    vendor   can    have    no    right 
to  resell  them,  at  all  events  until   the 
period  of  credit  is  expired;  after  that 
period,  indeed,  the  refusal  of  the  vendee 
or   his  representatives   to   receive   the 
rrcioAsand  pay  the  price,  would  probably 
bo  held  to  entitle  the  vendor  to  elect  to 
rc.-ciiid   the  contract,   see    Langford   v. 
'I'ili?r,  Salk.   113.     But  what,  it  will  be 
sni.1,  it  tiie  goods  be  of  so  perishable  a 
iinluro  that  the  vendor  cannot  keep  them 
ti!i  lliu  time  of  credit  has  expired?     In 
such  a  case  it  is  submitted  that  courts  of 
law  having  originally  adopted  this  doc- 
trine of  stoppage  in  transitu  frome(juity, 
would    act   on  efjuitable    principles  by 
holdin'T  the  vendor  invested  with  an  im- 


plied authority  to  make  the  necessary 
sale.  [It  is  hardly  necessary  to  add,  that 
a  wrongful  stoppage  in  transitu  has  not 
the  effect  of  rescinding  the  contract  of 
sale,  or  of  affecting  the  vendor's  right 
to  sue  for  the  price,  acquired  before  the 
stoppage.  In  Re  Humberston,  1  De 
Gex,  262;  and  see  Gillard  v.  Brittain,  8 
Mee.  &  W.  575.] 

The  person    who    stops    in    transitu 
must  be  a  consignor.     A  mere  surety  for 
the  price  of  the  goods  has  no  right  to  do 
so,  Siffkin  v.   Wray,  6  East,  376.     But 
a  person  residing  abroad,  who  purchases 
goods  for  a  correspondent  in  Eng-  r* <qqi 
land,  *whom  he  charges  with  a  '-    *    ^ 
commission   on    the  price,   but    whose 
names  are  unknown  to  those  from  whom 
he  makes  the  purchases,  may  slop  the 
goods   in  transitu   if  his   correspondent 
tail  while  they  are  on  their  passage,  for 
the  Court  thought  that  the  correspondent 
abroad  might  be  considered   as  a  new 
vendor,  selling  the  goods  over  again  to 
the  merchant  in  England,  and  only  add- 
ing to  the  price  the  amount  of  his  com- 
mission.     Feise  v.  Wray,  1  East,  93; 
see  Newsom  v.  Thornton,  6  East,  17, 
where  a  person  who  had  consigned  goods 
to  be  sold  on  the  joint  account  of  him- 
self and  the  consignee,  was  held  entitled 
to  stop  them  in  transitu,  the  consignee 
becoming   insolvent.       [In    Jenkyns    v. 
Usborne,  8  Scott,  N.  R.  522 ;  7  Man.  & 
Gr.  678,  S.  C.,it  was  attempted,  but  with- 
out success,  to  confine  the  right  to  ven- 
dors in  whom  the  property  in  the  goods 
has  actually  vested  at  the  time  of  the 
stoppage,  and  to  exclude  from  it  a  vendor 
in  whom  the  property  in  the  goods  had  not 
vested  at  the  time  of  the  stoppage,  but 
only  an  interest  in  and  right  to  receive  a 
*certain  portion  of  a  cargo  to  r*4«j.)„  i 
be  afterwards  ascertained  and  ■-      '        ^ 
appropriated  to  the  parties  interested  in 
it,  of  whom  he  was  one.     Tind.il,  C.  J., 
in  giving  judgment,  said:  "  We  see  no 
sound  disimction  with  reference  to  the 
right  of  stoppage  in  transitu,  between  the 
sale  of  goods  the  property  of  which  is  in 
the  vendor,  and  the  sale  of  an  interest 
which  he  has  in  a  contract  for  the  deli- 
very of  goods  to  him ;  if  he  may  rescind 
the  contract  in  the  one  case,  for  the  in- 
solvency of  the  purchaser,  he  must,  by 
parity  of  reasoning,  have  the  rigiit  to  re- 
scind it  in  the  other."     As  to  what  is  a  , 
suflicient  authority  from  the   vendor  to 
enable  another  person   on   his  behalf  to 
stop  goods  in  transitu,  see  Whitehead  v. 
AnJei-son,  9  Mee.  &  W.  518.] 


7U 


SMITH    S     LEADING     CASES. 


Stoppage  in  transitu,  as  its  name  im- 
ports, can  only  take  place  while  the 
goods  are  on  their  way ;  it^  they  once  ar- 
rive at  the  termination  of  their  journey, 
and  come  into  the  actual  or  constructive 
possession  of  the  consignee,  there  is  an 
end  of  the  vendor's  right  over  them.  And, 
therefore,  in  most  of  the  cases  the  dis- 
pute has  been  whether  the  goods  had  or 
had  not  arrived  at  the  termination  of 
their  journey.  The  rule  to  be  collected 
from  all  the  cases  is,  that  they  are  in 
transitu  so  long  as  they  are  in  the  hands 
of  the  carrier  as  such,  whether  he  was 
or  was  not  appointed  by  the  consignee, 
and  also  so  long  as  they  remain  in  any 
place  of  deposit  connected  with  their 
transmission.  But  that,  if,  after  their 
arrival  at  their  place  of  destination,  they 
be  warehoused  with  the  carrier,  whose 
store  the  vendee  uses  as  his  own,  or  even 
if  they  be  wai-ehoused  with  the  vendor 
himself,  and  rent  be  paid  to  him  for  them, 
that  puts  an  end  to  the  right  to  stop  in 
transitu.  See  Nicholls  v.  Lefevre,  2 
Bing.  N.  C.  83;  James  v.  Griffin,  1  Mee. 
&.  W.  20;  Edwards  v.  Brewer,  2  Mee. 
Sl  \V.  375 ;  and  James  v.  Griffin,  iterum, 
2  Mee.  &  W.  623;  where  the  Court 
*■  differed  on  the  question  whether  evi- 
dence of  the  vendee's  intention  not  to 
take  possession  uncommunicated  to  the 
wharfinger  was  admissible.  Mills  v. 
Ball,  2  B.  &P.  457;  Hoist  v.  Pown- 
all,  1  Esp.  240;  Northey  v.  Field,  2 
Esp.  613  ;  Hodgson  v.  Loy,  7  T.  R.  440 ; 
Smith  V.  Goss,  1  Camp.  282;  Coates  v. 
Railton,  6  B.  &  C.  422;  Richardson  v. 
Goss,  3  B.  &  P.  127;  Scott  v.  Petit,  3 
B.  &.  P.  469 ;  Foster  v.  Frampton,  6  B. 
&  C.  109;  Allen  v.  Gripper,  2  Tyrw. 
217;  Rose  v.  Pickford,  Hurry  v.  Man- 
gles, 1  Camp.  452;  Stoveld  v.  Hughes, 
13  East,  408.  [The  arrival  of  the  goods 
at  a  place  where  they  are  to  be  at  the 
orders  of  the  buyer,  in  the  hands  of  per- 
sons who  are  to  keep  them  for  him,  is  an 
end  of  the  transilus,  although  the  place 
be  not  that  of  their  ultimate  destination, 
VVentworlh  v.  Outhwaite,  10  Mee.  & 
W.  436  ;  Dodson  v.  Wentvvorth,  5  Scott, 
.\.  R.  821 ;  4  Man.  &  Gr.  1080,  S.  C. ; 
because  in  such  a  case  the  goods  have 
got  into  the  hands  of  agents  for  the  buyer, 
r  *i'^'V  1  "°''  concerned  merely  in  the 
L  -■  *carriage  of  the  goods.     And 

the  same,  as  it  seems,  where  the  goods 
have  got  into  the  hands  of  a  person  em- 
ployed by  the  buyer  to  receive  them  from 
the  first  carrier  or  out  of  the  warehouse 
where  they  were  when  sold,  and  give 


them  a  new  destination,  as  in  Valpy  v. 
Gibson,  4  C.  B.  837,  where  the  goods 
had  been  ordered  for  the  Valparaiso 
market,  and  the  Court  of  Common  Fleas 
expressed  their  opinion  that  the  transit 
was  at  an  end  upon  the  arrival  of  the 
goods  in  the  hands  of  the  vendee's  .«hip- 
ping  agent  at  Liverpool.  In  Cowasjee 
v.  Thompson,  5  Moore  (Privy  Council,) 
165,  the  goods  were  purchased  in  Lon- 
don "free  on  board,"  to  be  paid  for  upon 
delivery  on  board,  in  a  bill  at  six  months, 
or  cash  less  two  and  a  half  per  cent,  dis- 
count, at  the  seller's  option.  The  goods 
were  delivered  by  the  seller  into  a  ves- 
sel indicated  by  the  purchaser,  and  a 
receipt  for  them  was  obtained  from  the 
mate,  which  the  seller  kept.  The  seller 
elected  to  be  paid  by  bill,  which  was  ac- 
cordingly given,  and  the  master,  without 
requiring  the  return  of  the  mate's  re- 
ceipt, signed  bills  of  lading  for  the  goods 
as  shipped  by  the  purchaser.  By  the 
custom  of  the  port,  the  phrase  "  free  on 
board"  imports  that  the  buyer  is  consid- 
ered as  the  shipper,  though  the  seller  is 
to  bear  the  expense  of  shipment.  The 
judicial  committee  held  that  the  transit 
was  at  an  end,  and  the  right  to  stop  gone, 
so  soon  as  the  goods  were  put  on  board 
and  the  bill  given  for  the  price.  Whilst, 
however,  goods  sold  remain  in  the  hands 
of  a  carrier  employed  to  convey  tliem  to 
their  original  destination  as  between  the 
buyer  and  seller,  no  case  of  constructive 
possession  in  the  buyer  arises,  unless 
"  where  the  carrier  enters  expressly  or 
by  implication  into  a  new  agreement 
distinct  from  the  original  contract  for 
carriage,  to  hold  the  goods  for  the  con- 
signee as  his  agent,  not  for  the  purpose 
of  expediting  them  to  the  place  of  ori- 
ginal destination  pursuant  to  that  con- 
tract, but  in  a  new  character,  for  the 
purpose  of  custody  on  his  account,  and 
subject  to  some  new  or  further  order  to 
be  given  to  him,"  Whitehead  v.  Ander- 
son, 9  Mee.  &  W.  518.  And  in  the  ab- 
sence of  such  a  new  agreement,  it  seems 
that  the  mere  acts  of  marking  or  sam- 
pling the  goods,  or  giving  notice  to  the 
carrier  to  hold  the  goods  for  the  buyer, 
though  done  with  the  intention  to  take 
possession,  do  not  establish  a  construc- 
tive possession  in  the  buyer,  or  affect  the 
right  to  stop  in  transitu,  ibid.  ;  and  see 
Di.xon  V.  Yates,  5  B.  &  Ad.  313.  The 
same  law  holds  in  t!ie  case  of  goods 
which,  when  sold,  are  on  a  wharf  or  in 
a  dock,  where  they  are  intended  to  re- 
main until  taken  away  by  the  buyer.  In 


L  I  C  K  B  A  R  11  0  W     V.     M  A  S  0  N. 


745 


such  a  case  the  goods  are  considered  as 
constructively  in  transitu  (see  the  re- 
marks of  Lord  Abincjer  in  Gibson  v. 
r  *d'^'i  1  Carruthers,  8  Mee.  &  VV.  341,) 
L   1CJC5C  J  gj^^j  ^i^g  *rightof  the  vendor  to 

stop  in  transitu  remains  so  long  as  the 
goods  are  not  taken  away,  and  the  ware- 
house keeper  or  dock  owner  has  not  be- 
come the  agent  of  tlie  buver,  see  Dixon 
V.  Yates,  5  B.  &  Ad.  31:3 ;  Taylor  v. 
Scovell,  14  Mee.  &.  W.  23,  where  the 
wharfinger,  upon  orders  received  direct 
from  the  seller,  to  weigh  and  deliver  the 
goods  to  the  buyer,  had  accordingly 
furnished  the  seller  with  the  weights, 
and  delivered  a  portion  of  the  goods  to 
the  buyer's  order  ;  yet,  inasmuch  as  the 
wharfinger  had  not  received  warehou.se 
rent  from  the  buyer,  or  transferred  the 
goods  into  his  name,  or  done  any  other 
act  to  become  his  agent,  the  rest  of  the 
goods,  without  regard  to  whether  the 
property  in  them  had  vested  in  the  buyer 
or  not,  were  considered  subject  to  the 
seller's  right  of  stoppage  in  transitu; 
and  Lackington  v.  Atherton,  8  Scott,  N. 
R.  33  ;  7  Man.  &  Gr.  360,  S.  C,  where 
the  seller,  who  had  himself  bought  the 
goods  of  the  importer  in  whose  name 
they  were  warehoused  in  the  West  In- 
dia Docks,  gave  the  buyer  a  delivery  or- 
der upon  which  the  Dock  Company  re- 
fused to  act,  because  not  given  by  the 
importer;  and  upon  the  subsequent  in- 
solvency of  the  buyer,  the  seller  him- 
self obtained  a  delivery  order  from 
the  importer  and  possessed  himself  of 
the  goods.  The  question  in  all  such 
cases  seems  to  be,  whether  the  ware- 
houseman at  the  time  of  the  stoppage 
held  the  goods  as  agent  for  the  consignor, 
or  as  agent  for  the  consignee.]  If  the 
vendor  allow  the  vendee  to  take  posses- 
sion of  part  of  the  goods  sold  under  an 
entire  contract,  without  intending  to  re- 
tain the  rest,  his  right  to  stop  in  transitu 
is  gone.  Hammond  v.  Anderson,  1  N. 
R.  69.  See  Sluby  v.  Hay  ward,  2  H.  Bl. 
504;  Hanson  v.  Meyer,  6  East,  614. 
But  it  is  otherwise  if  he  do  intend  to  re- 
tain the  remainder,  Bunney  v.  Poyntz, 
4  B.  &  Ad,  570;  [see  Wentworth  v. 
Outhwaite,  10  Mee.  &  W.  451 ;  Tan- 
ner v.  Scovell,  14  Mee.  &  VV.  28.]  Prima 
facie,  however,  [it  has  been  said  that  a] 
delivery  of  part  imports  an  intention  to 
deliver  the  whole.  Per  Taunton,  J., 
Betts  V.  Gibbins,2Ad.  &  Ell.  73.  [That 
dictum,  however,  which  had  been  ques- 
tioned by  the  author  in  his  work  on  mer- 
cantile  law,   (third   edition,  463,   507, 


fourth  edition,  459,  502,)  has  been  over- 
ruled by  the  Court  of  E.xchequer  in  Tan- 
ner V.  Scovell,  14  Mee.  &.  VV.  23,  where 
it  was  laid  down  that  if  the  buyer  takes 
pos-ession  of  part,  not  meaning  thereby 
to  take  possession  of  the  whole,  but  to 
separate  that  part  and  to  take  posses- 
sion of  that  part  only,  it  puts  an  end  to 
the  transitus  only  with  respect  to  that 
part  and  no  more.  In  that  case,  under 
a  general  order  to  deliver  the  goods,  the 
buyer  procured  the  actual  delivery  of 
certain  portions  of  them  which  he  had 
resold,  and  the  delivery  of  those  portions 
was  held  not  to  operate  as  a  delivery  of 
the  whole,  or  to  affect  the  ven-  [■*4gQ^  -i 
dor's    *right   as   to    the    rest.  '-  -• 

And  in  Jones  v.  Jones,  8  Mee.  &  VV.  431, 
the  assignee  of  a  cargo  of  goods  under  a 
trust  deed,  took  possession  of  part  of 
the  cargo  upon  its  arrival,  and  directed 
the  rest  to  be  conveyed  to  a  desig- 
nated place,  with  the  intention  of  obtain- 
ing possession  of  the  whole  for  the  pur- 
poses of  the  trust,  and  it  was  held  that 
such  taking  posssession  of  part  did  put 
an  end  to  the  transit;  but  it  was  in  that 
case  assumed  to  be  clear  law  that  the 
mere  delivery  of  part  to  the  buyer,  if  he 
means  to  separate  that  part  from  the  re- 
mainder, does  not  amount  to  a  delivery 
of  the  whole  so  as  to  defeat  the  right  to 
stop  in  transitu.*  In  Tanner  v.  Scovell, 
supra,  the  whole  question  was  stated  to 
depend  on  the  intention  of  the  buyer; 
but  perhaps  that  statement  was  intended 
to  apply  only  to  cases  like  Tanner  v.  Sco- 
vell, where  it  was  in  the  power  of  the  buy- 
er at  the  time,  if  he  pleased,  to  take  all.] 
However,  though  the  determination 
of  the  transit  puts  an  end  to  the  vendor's 
right  to  stop  the  goods,  [it  has  been 
thought  that]  the  vendee  is  not  allowed 
to  anticipate  its  natural  determination, 
as,  for  instance,  hy  going  to  meet  the 
goods  at  sea.  Hoist  v.  Pownall,  1  Esp. 
240.  Vide  tamen,  the  judgments  in 
Mills  v.  Ball,  2  B.  &  P.  461;  Oppen- 
heim  v.  Russell,  3  B.  &  P.  54;  Foster 
v.  Frampton,  6  B.  &  C.  107;  [and  White- 
head v.  Anderson,  9  Mee.  &  W.  518, 
where  it  was  laid  down  as  indisputable,^ 
that  if  the  vendee  take  the  goods  out  of 
the  possession  of  the  carrier  into  his  own 
before  their  arrival,  the  right  to  stop  in 
transitu  is  at  an  end  ;  though,  if  he  were 
to  take  them  without  the  consent  of  the 
carrier,  it  might  be  a  wrong  to  him  for 
which  he  would  have  a  right  of  action.] 
Nor  can  the  vendor's  right  be  defeated 
by  the  enforcement  of  a  claim  against 


746 


SMITHS     LEADING     CASES. 


the  vendee,  as,  for  instance,  by  process 
of  foreign  attachment  at  the  suit  of  his 
creditor,  or  by  the  carrier's  assertion  of 
a  general  lien  ao:ainst  hiin.  Smith  v. 
Goss,  1  Camp.  SS^ ;  Butler  v.  VVoolcot, 
2  N.  R.  61;  Nicholls  v.  Lefevre,  2 
Binir.  N.  C.  83. 

[To  make  a  notice  effective  as  a  stop- 
page in  transitu,  it  must  be  given  to  the 
person  who  has  the  immediate  custody 
of  the  goods;  or  if  given  to  the  principal 
whose  servant  has  the  custody,  it  must 
be  given  at  such  a  time  and  under  such 
circumstances  that  the  principal,  by  the 
e.xercise  of  reasonable  diligence,  may 
communicate  it  to  his  servant,  in  time  to 
prevent  the  delivery  of  the  goods  to  the 
consignee,  Whitehead  v.  Anderson,  9 
Mee.  &  W.  .518.] 

The  second  vendee  of  a  chattel  can- 
not, generally  speaking,  stand  in  a  bet- 
ter situation  than  his  innnediate  vendor, 
Small  V.  iMoate,  9  Bing.  574.  If,  there- 
fore, the  vendee  sell  the  goods  before 
they  have  been  delivered  to  him,  he  sells 
them,  generally  speaking,  subject  to  the 
vendor's  right  to  stop  in  transitu,  Dixon 
r*d'^'^pi^-  Yates,  5  B.  &  Ad.  313; 
L  ^cioe  J  =f:jg„i^y^j.   y_  Usborne,  8  Scott, 

N.  R.  505;  7  Man.  &  Gr.  678,  S.  C] 
But  on  tliis  rule  the  principal  case  has 
engrafted  an  exception ;  for  the  second 
and  main  point  in  Lickbarrow  v.  Mason 
is,  that  the  vendee  may,  by  negotiating 
the  bill  of  lading  to  a  bona  fide  trans- 
feree, defeat;  the  vendor's  right  to  stop  in 
transitu.  A  succinct  history  of  the  law 
on  this  point  is  given  by  Lord  Tenterden, 
in  his  admirable  work  on  Shipping,  p. 
388,  where  he  remarks,  that  "  the  ear- 
liest mention  of  the  subject  in  our  law 
books  is  the  case  of  Evans  v.  Martlelt,  1 
Lord  Raym.  271, 12  Mod.  1-56;  in  which 
Holt,  C.  J.,  said,  'the  consignee  of  a  bill 
of  lading  has  such  a  property,  that  he 
may  assign  it  over;'  and  Shower  said 
r*i'Ml  '  ^^^^  ^^  ^^^^  been  adjudged  so  in 
L  "^"^  -J  the  ^Exchequer.'  But,  in  that 
case,  the  effect  of  such  an  assignment 
was  not  properly  before  the  Court,  and 
does  not  appear  to  have  been  discussed 
or  argued;  and  the  case  supposed  to  be 
referred  to  by  Shower  has  not  been  found. 
In  the  case  of  Snee  v.  Prescot,  1  Alk. 
240,  the  right  of  the  pawnee  of  the  bill 
of  lading  as  against  the  consignor  was 
not  noticed  or  insisted  upon."  He  then 
proceeds  to  comment  on  the  cases  of 
Wright  V.  Campbell, 4  Burr.  204G,  1  Bl. 
628;  Hibbertv.  Carter,  1  T.  R.  445; 
Caldwell  V.  Ball,  ibid.  2U5;  and  Lick- 


barrow v.  Mason;  and  concludes  by  stat- 
ing that  "  that  cause  was  tried  again, 
and  that  the  Court  of  King's  Bench,  at 
the  head  of  which  Lord  Kenyon  had  in 
the  moan  time  been  placed,  and  who  had, 
in  another  cause,  expressed  his  approba- 
tion of  the  first  judgment  in  this  case,  as 
being  founded  on  principles  of  justice 
and  common  honesty,  again  decided  the 
case  without  argument,  in  conformity  to 
the  first  decision  of  that  Court;  5  T.  R. 
683;  and,  in  order  that  the  question 
might  again  be  carried  to  the  other  tri- 
bunals, another  writ  oferror  was  brought; 
but  it  was  afterwards  abandoned,  and  it 
is  now  the  admitted  doctrine  in  our 
courts  that  the  consignee  may,  under  the 
circumstances  before  stated,  confer  an 
absolute  right  and  property  upon  a  third 
person,  indefeasible  by  any  claim  on  the 
part  of  the  consignor.'^  [That  is  to  sa}'^, 
an  absolute  right  and  property  in  the 
goods  ;  but  the  transfer  of  a  bill  of  lading 
does  not,  like  that  of  a  bill  of  exchange, 
confer  any  right  on  the  assignee  to  sue 
upon  the  contract  expressed  thereby, 
Thompson  v.  Dominy,  14  Mee.  &  VV. 
403.  See  further,  as  to  the  effect  of  a 
bill  of  lading,  Jenkyns  v.  Usborne,  8 
Scott,  N.  R.  505,  7  Man.  &  Gr,  678,  S. 
C,  per  curiam,  Bryans  v.  Nix,  4  Mee.  &. 
W.  775,  Bruce  v.  Wait,  3  Mee.  &.  \V. 
15;  as  to  its  beins:  revocable,  Mitchell 
v.  Ede,  3  P.  &  D.1513,  11  Ad.  &  Ell.  88, 
S.  C. ;  as  to  a  mate's  receipt,  Evans  v. 
Nichol,  4  Scott,  N.  R.  43,  Thompson  v. 
Small,  1  C.  B.  328,  Cowasjee  v.  Thomp- 
son, 5  Moore  (Privy  Council,)  165  ] 

But  if  the  assignee  of  a  bill  r  j^.^^^  -, 
of  *lading  act  mala  fide;  for  in-  '-  "-■ 

stance,  if  he  knew  that  the  consignee  of 
the  goods  was  insolvent,  and  took  the 
assignment  of  the  bill  of  lading  for  the 
purpose  of  defeating  the  right  to  stop  in 
transitu,  and  so  defrauding  the  consignor 
out  of  the  price  ;  he  will  be  held  to  stand 
in  the  same  situation  as  the  consignee  ; 
and  theconsignor  will  preserve  his  right 
of  stoppage.  Per  Lord  Ellenborough, 
delivering  judgment  in  Gumming  v. 
Brown,  9  East.  514.  And  if  the  bill  of 
lading  contain  a  condition,  ex.  gr.,  if  it  be 
indorsed  upon  it,  thal>  the  goods  are  to  be 
delivered,  provided  E^.  F.  pay  a  certain 
draft,  every  indorsee  takes  it,  subject  to 
that  condition,  and  will  have  no  title  to 
the  goods,  unless  it  be  performed.  J5ar- 
row  V.  Coles,  3  Camp.  92. 

A  factor,  however,  to  whom  goods 
were  consigned,  stood  in  a  different  situ- 
ation from  a  vendee  with  respect  to  his 


LICKBARROW     V.    MASON. 


747 


power  to  pass  the  property  therein  by  an 
indor.-ement  of  the  bill  of  lading-.  For, 
thouo-h  he  mioht  bind  his  principal  by  a 
sale  thereof,  he  could  not  by  a  pledge, 
that  not  being  within  the  usual  scope  of 
his  authority.  Martin  v.  Coles,  1  M.  & 
S.  140;  Shipley  v.  Kynier,  ibid.,  484; 
Newsom  v.  Thornton,  6  East,  17.  But 
by  Stat.  4  G.  4,  c.  88,  amended  by  6  G. 
4,  c.  94,  usually  called  the  Factor's  Act, 
the  law  upon  this  subject  was  altered. 
By  that  statute,  sec.  2,  a  person  intrusted 
with,  and  in  possession  of,  any  bill  of 
ladinor,  istobe  deemed  the  true  owner  of 
the  g-oods  described  in  it,  so  far  as  to  give 
validity  to  any  contract  made  by  him, 
for  the  sale  or  disposition  of  the  goods,  or 
any  part  thereof,  or  for  the  deposit  or 
pledge  thereof,  or  any  part  thereof,  as  a 
security  for  any  money,  or  negotiable  in- 
strument, provided  the  buyer,  disponee, 
or  pawnee,  have  no  notice  by  the  bill,  or 
otherwise,  that  he  was  not  the  actual 
bona  fide  owner  ofthe  goods.  (Upon  the 
question,  who  is  to  be  considered  a  per- 
son "  intrusted''''  within  the  ineaning  of 
this  section,  see  Close  v.  Holmes,  2  M. 
&  Rob.  23;  Phillips  v.  Huth,  6  Mee.  & 
VV.  605;  [Hatfield  v.  Phillips,  9  Mee.  & 
W.  647,  14  Mee.  &  W.  665,  12  CI.  & 
Fin.  343,  S.  C. ;  Bonzi  v.  Stewart,  5 
Scott,  N.  R.  1, 4  Man.  &  Gr.  295,  S.  C. ; 
and  as  to  what  is  a  "  disposition'^  see 
Taylor  v.  Kymer,  3  B.  &  Ad.  337.])  But, 
by  sec.  3,  if  the  deposit  or  pledge  be  as  a 
security  for  a  pre-existing  demand,  the 
depositee  or  pawnee  acquires  only  the 
same  interest  in  them  that  was  possessed 
by  the  person  making  the  deposit  or 
pledge.  Sect.  5  enacts,  that  any  person 
may  accepf  any  such  goods  or  document 
as  aforesaid,  on  deposit  or  pledge,  from 
any  factor  or  agent,  notwithstanding  he 
shall  have  notice  that  the  party  is  a  fac- 
tor or  agent;  but  in  such  case  he  shall 
acquire  such  interest,  and  no  further  or 
other,  as  was  possessed  by  the  factor  or 
agent  at  the  time  of  the  deposit  or 
pledge;  and,  therefore,  in  this  last  case, 
r*43461  '^  the  agent's  interest  *be  de- 
L  J  feasible,  so   is   the    pledgee's. 

Flandy  v.  Allen,  Dans.  &  Lloyd,  22; 
Fletcher  v.  Heath,  7  B.  &  C.  517.  A 
fraudulent  sale  cannot  be  upheld  as  a 
pledge  under  thissection.  Thompson  v. 
Farmer,  1  M.  &  M.48.  [As  to  the  plead- 
ings upon  Stat.  5  G.  4,  c.  94,  .«ee  Bonzi 
V.  Stewart,  5  Scott,  N.  R.  1,  4  Man.  & 
Gr.  295,  8  Scott,  N.  R.  52.5. 

The  provisions  of  6  G.  4,  c.  94,  being 
found  insufficient  to  meet  the  wishes  or 


convenience  of  merchants,  stat.  5  &  6 
Vict.  c.  39,  "An  act  to  amend  the  law 
relating  to  advancos  bona  fide  made  to 
agents  intrusted  with  goods,"  was  passed 
(30th  June,  1842). 

The  1st  section,  after  reciting  inter 
alia,  that  by  6  G.  4,  c.  94,  "validity  is 
given,  under  certain  circumstances,  to 
contracts  or  agreements  made  with  per- 
sons intrusted  with  and  in  possession  of 
the  documents  of  title  to  goods  and  mer- 
chandize, and  consignees  making  ad- 
vances to  persons  abroad  who  are  in- 
trusted with  any  goods  and  merchandize 
areentitled,  under  certain  circumstances, 
to  a  lien  thereon,  but  under  the  said  act 
and  the  present  state  of  the  law,  ad- 
vances cannot  safely  be  made  upon  goods 
or  documents  to  persons  known  to  have 
possession  thereof  as  agents  only  ;"  and 
that  advances  on  the  security  of  goods 
and  merchandize  had  become  an  usual 
and  ordinary  course  of  business,  and  it 
was  expedient  and  necessary  that  rea- 
sonable and  safe  facilities  should  be  af- 
forded thereto,  and  that  the  same  pro- 
tection and  validity  should  be  extended 
to  bona  fide  advances  upon  goods  and 
merchandize  as  by  the  6  G.  4,  c.  94,  is 
given  to  sales,  and  that  owners  intrust- 
ing agents  with  the  possession  of  goods 
and  merchandize,  or  of  documents  of 
title  thereto,  should  in  all  cases  where 
such  owners  by  the  6  G.  4,  c.  94, 
or  otherwise  would  be  bound  by  a  con- 
tract or  agreement  of  sale  be  in  like 
manner  bound  by  any  contract  or  agree- 
ment of  pledge  or  lien  for  any  advances 
bona  fide  made  on  the  security  thereof;" 
and  that  "much  litigation  had  arisen  on 
the  construction  of  the  6  G.  4,  c.  94,  that 
it  did  not  extend  to  protect  exchanges 
of  securities  bona  fide  made,  and  so  much 
uncertainty  existed  in  respect  thereof 
that  it  was  expedient  to  alter  and  amend 
the  same,  and  to  extend  the  provisions 
thereof,  and  to  put  the  law  on  a  clear 
and  certain  basis;"  enacts  "that  from 
and  alter  the  passing  of  this  act  any 
agent  who  shall  thereafter  be  intrusted 
with  the  possession  of  goods,  or  of  the 
documents  of  title  to  goods,  shall  be 
deemed  and  taken  to  be  owner  of  such 
goods  and  documents,  so  far  as  to  give 
validity  to  any  contract  or  agreement 
by  way  of  pledge,  lien,  or  security  bona 
fide  made  by  any  person  with  such  agent 
so  intrusted  as  aforesaid,  as  well  for  any 
original  loan,  advance,  or  payment  made 
upon  the  security  of  such  goods  or  docu- 
ments, as  also  for  any  further  or  contiau- 


748 


SMITHS    LEADING    CASES. 


p,o4  1  ingf  ^advance  in  re«pect  there- 
*-  '  ^  of,  and  such  contract  or  agree- 
ment shall  be  binding  upon  and  good 
against  the  owner  of  such  goods,  and  all 
other  persons  interested  tiiorcin,  not- 
withstanding the  person  claiming  such 
pledge  or  lien  may  have  had  notice  tiiat 
the  person  with  whom  su(;li  contract  or 
agreement  is  made  is  only  an  agent." 
This,  as  well  as  the  other  provisions  of 
the  statute,  though  wide  enough  in  terms 
to  include  many  other  cases,  has  been 
limited  in  construction  to  mercantile 
transactions.  So  that  in  Wood  v.  Rovv- 
cliffe,  6  Hare,  191,  where  it  was  con- 
tended that  advances  made  upon  the  se- 
curity of  furniture  in  a  furnished  house, 
not  in  the  way  of  trade,  to  the  apparent 
owner  of  the  furniture,  who  in  fact  was 
an  agent  intrusted  with  the  custody  of  it 
by  the  true  owner,  were  within  the  pro- 
tection of  5  &  6  Vict.  c.  39,  Sir  James 
VVigram,  V.  C,  held  the  contrary,  say- 
ing in  the  course  of  his  judgment :  "  the 
first  act  (6  G.  4,  c.  94)  is  for  the  'pro- 
tection of  the  property  of  merchants  and 
others,'  and  the  property  referred  to  is 
'goods,  wares,  and  merchandize,'  in- 
trusted to  the  agent  '  for  the  purpose  of 
consignment  or  sale,' or  'shipped;'  and 
upon  a  judicial  construction  of  the  act  it 
has  been  held  that  the  generality  of  the 
expressions  must  be  restricted.  Every 
servant  of  the  owner  of  goods  employed 
in  the  care  or  carriage  of  such  goods,  is 
in  one  sensa  'an  agent  intrusted  with 
goods,'  but  still  he  is  not  an  agent 
within  the  meaning  of  the  statute.  Monk 
V.  Whittenbury,  2  B.  &  Ad.  484.  The 
title  of  the  second  act  (5  &  6  Vict.  c. 
39)  is  more  general ;  but  it  appears  to 
me  to  relate  to 'agents,' and  to  'goods  and 
merchandize'  in  a  sense  which  is  not 
applicable  to  the  agency  or  the  property 
in  this  case."  In  Monk  v.  Whittenbury, 
supra,  it  was  considered  that  a  carrier, 
warehouseman,  packer,  or  wharfinger,  is 
not  "an  agent"  within  6  G.  4,  c.  94; 
Sir  James  VVigram,  V.  C,  appears  to 
have  treated  that  decision  as  applicable 
also  to  tlie  construction  of  .5  &  6  V^ict.  c. 
39.  In  Jenkyns  v.  Usborne,  8  Scott,  N. 
R.  .505,  7  Man.  &  Gr.  678,  S.  C,  a  ven- 
dee who  had  received  from  the  vendor  a 
delivery  order  fur  the  goods,  was  consi- 
dered not  to  be  a  person  intrusted  with  a 
delivery  order  within  the  6  G.  4,  c.  94, 
s.  2,  so  as  to  be  capable  of  making  a 
valid  pledge  of  the  delivery  order,  and 
so  defeating  the  right  of  stoppage  in 
transitu  ;  the  act  being  intended  only  to 


apply  to  persons  intrusted  with  such 
documents  as  factors  or  agents;  and  the 
vendee  being  in  possession  of  the  docu- 
ment, not  as  the  agent  of  another,  but 
in  his  own  right.  That  would  a  fortiori 
hold  good  in  a  case  arising  upon  the 
construction  of  5  &.  6  Vict.  c.  29,  s.  1, 
where  the  word  "agent"  is  expressly 
used.  And  therefore,  where  the  per- 
son intrusted  is  not  intrusted  as  agent 
but  as  buyer,  the  right  of  his  assignee 
*is  not  holpen  by  5  &.  6  Vict.  [^404  7-1 
39,  but  must  stand  or  fall  by     '-  -' 

the  rule  laid  down  in  Lickbarrow  v. 
Mason. 

The  2nd  section  authorises  the  sub- 
stitution of  other  goods,  documents  of 
title  or  negotiable  securities  for  those 
first  deposited  in  consideration  of  a  pre- 
vious advance;  but  provides  that  the 
lien  acquired  upon  the  substituted  pro- 
perty shall  not  exceed  the  then  value  of 
the  property  given  up.  The  decision 
which  pointed  out  the  necessity  for  that 
section  was  Bonzi  v.  Stewart,  4  Man.  & 
Gr.  525,  5  Scott,  N.  R.  1,  S.  C. 

Sect.  3  provides  and  enacts  that  the 
act  shall  be  deemed  and  construed  to 
give  validity  to  such  contracts  and  agree- 
ments only,  and  to  protect  only  such 
loans,  advances,  and  exchanges,  as  shall 
be  made  bona  fide,  and  without  notice 
that  the  agent  making  such  contracts 
or  agreements  is  acting  without  autho- 
rity or  mala  fide  against  the  owner; 
that  it  shall  not  be  construed  to  extend 
to  or  protect  any  lien  or  pledge  for  an 
antecedent  debt;  nor  to  authorise  any 
agent  in  deviating  from  any  express  or- 
der or  authority  received  from  the  owner; 
"  but  that,  for  the  purpo.-;e  and  to  the  ex- 
tent of  protecting  all  such  bona  fide 
loans,  advances,  and  exchanges  as  afore- 
said, (though  made  with  notice  of  such 
agent  not  being  the  owner,  but  without 
any  notice  of  the  agent's  acting  without 
authority,)  and  to  no  further  or  other  in- 
tent or  purpose,  such  contract  or  agree- 
ment as  atbresaid  shall  be  binding  on 
the  owner  and  all  other  persons  interest- 
ed in  such  goods." 

By  the  4th  section  "any  bill  of  lading, 
India  warrant,  dock  warrant,  warehouse 
keeper's  certificate,  warrant  or  order  for 
the  delivery  of  goods,  or  any  other  docu- 
ment used  in  theordinary  course  of  busi- 
ness as  proof  of  the  possession  or  control 
of  goods,  or  authorising  or  purporting  to 
authorise,  either  by  indorsement  or  by 
delivery,  the  possessor  of  such  document 
to  transfer  or  receive  goods  thereby  re- 


LICKB  ARROW    V.    MASON. 


749 


presented,  shall  be  deemed  and  taken  to 
be  a  document  of  title  within  the  mean- 
ing of  this  act:  and  any  agent  intrusted 
as  aforesaid,  and  possessed  of  any  such 
document  of  title,  whether  derived  im- 
mediately from  the  owner  of  such  goods, 
or  obtained  by  reason  of  such  agent's 
having  been  intrusted  with  the  posses- 
sion of  the  goods,  or  of  any  other  docu- 
ment of  tiile  thereto,  shall  be  deemed 
and  taken  to  have  been  intrusted  with 
tlie  possession  of  the  goods  represented 
by  such  document  of  title  as  aforesaid  :" 
— (This  legislative  interpretation  of  the 
word  "  intrusted"  was  rendered  neces- 
sary by  tlie  decision  in  Phillips  v.  Ilulh, 
6  M.  <fc  W.  6U5,  and  Hatfield  v.  Phillips, 
9  Alee.  &■  VV.  647,  affirmed  in  the  House 
of  Lords,  14  Mee.  &.  VV.  647,  12  CI.  & 
Fm.  343,  S.  C,  thai  a  factor  intrusted 
with  a  bill  of  lading,  and  who,  by  reason 
of  having  the  bill  of  Jading,  was  enabled 

r*434e  1  *'-°  ^"d  '^'^  (P^^  "ot  in  pursu- 
'■  -■  ance  of  the  instructions  of  his 

principal)  possess  himself  of  a  dock  war- 
rant, was  not  to  be  considered  a  person 
intrusted  with  the  dock  warrant  within 
the  meaning  of  6  G.  4,  c.  94): — And 
"all  contracts  pledging  or  giving    a 
lien  upon  such  document  of  title  as  atbre- 
said  shall  be  deemed  and  taken  to  be  re- 
spectively pledges  of  and  liens  upon  the 
goods   to  which   the  same  relates:" — 
"  And  such  agent  shall  be  deemed  to  be 
possessed  of  such  goods  or  documents, 
wheiher  the  same  shall  be  in  his  actual 
custody,  or  shall  be  held   by  any  other 
person  subject  to  his  control  or  for  him 
or  on  his   behalf;" — And    "  where  any 
loan  or  advance  shall  be  bona  fide  made 
to  any  agent  intrusted  with  and  in  pos- 
session of  any  such  goods  or  documents 
of  title  as  aforesaid,  on  the  faith  of  any 
contract  or  agreement   in  writi.ig   to 
consign,  deposit,  transfer,  or  deliver  such 
goods  or  documents  of  title  as  aforesaid, 
and  such    goods  or  documents  of  title 
shall  actually  be  received  by  the  person 
making  such  loan  or  advance,  without 
notice  that  such  agent  was  not  autho- 
rised to  make  such  pledge  or  security, 
every  such   loan   or  advance   shall    be 
deemed  and  taken   to  be  a  loan  or  ad- 
vance on   the  security  of  such  goods  or 
documents  of  title  within  the  meaning 
of  this  act,  though  such  goods  or  docu- 
ments of  title  shall  not  actually  be  re- 
ceived by  the  person  making  such  loan 
or   advance  till  the  period  subsequent 
thereto:"    (This   enactment   may  have 
sprung  from  the  inclination  of  opinion 


expressed  upon  the  second  point  argued 
but  not  decided,  in  Bonzi  v.  Stewart,  4 
Man.  &.  Gr.  395;  5  Scott,  N.  R.  1):— 
And  "any  contract  or  agreement,  whe- 
ther made  direct  with  such  agent  as  afore- 
said, or  ivith  any  clerk  or  other  person 
on  his  behalf,  shall  be  deemed  a  contract 
or  agreement  with  such  agent  :^^ — And 
"  any  payment  made,  whether  by  money 
or  bills  of  exchange  or  other  negotiable 
security,  shall  be  deemed  and  taken  to 
be  an  advance  within  the   meaning  of 
this     act:" — (^'^  Negotiable     security,'''' 
that  is,  for  the  payment  of  money,  sem- 
ble  Taylor  v.  Kymer,  3  B.  &.  Ad.  320; 
and  although  the  words  are  any  payment, 
yet  with  reference  to  the  object  of  this 
act,  they  must  be  construed  to  mean  any 
payment  by  way  o'iloan  or  advance,  and 
not  to  include  a  case  where  the  real  ob- 
ject of  the  parties  is  not  a  loan  or  ad- 
vance, such  as  was  Learoyd  v.  Robinson, 
12  Mee.  &  W.  74.%  where  the  factor 
being  liable  with  the  defendant  on  a  bill 
of  exchange,  obtained  a  sum  of  money 
from  liie  defendant  to  take  up  the  bill, 
at  the  same  time  depositing  with  him 
the  plaintitTs  goods.     In  that  case  the 
direction  of  the  Judge,  Coltman,  J.,  to 
the  jury,  to  find  for  the  plaiatitf  if  they 
considered  what  was  done  to  be  "only 
a  circuitous  mode  of  paying  the  bill  on 
which   the  defendant  was  liable,"   was 
upheld  by  the  Court  of  Exchequer)  : — 
And    "an   *agent  in  posses-    r-^AOAf-i 
siow  as  aforesaid  of  such  goods    "■        -^  ^ 
or  documents  shall  be  taken,  for  the  pur- 
poses of  this  act,  to  have  been  intrusted 
therewith  by  the  owner  thereof,  unless 
the  contrary  can  be  shown  in  evidence." 
TheSih  section  provides  that  nothing 
in  the  act  contained  siiall  lessen,  vary, 
alter,  or  affect  the  civil  responsibility  of 
an  agent  for  any  breach  of  duty  or  con- 
tract or  non-fullilment  of  his  orders  or 
authority. 

By  the  6th  section  an  agent  exercis- 
ing the  powers  virtually  conferred  upon 
him  by  the  act  mala  fide,  and  without 
the  authority  of  his  principal,  is  render- 
ed subject  to  punishment  by  transporta- 
tion, as  for  a  misdemeanor,  unless  where 
the  property  dealt  with  is  not  made  a 
security  for  or  subject  to  the  payment  of 
any  greater  sum  of  money  than  the 
amount  which  at  the  time  was  justly 
due  and  owing  to  such  agent  from  his 
principal,  together  with  the  amount  of 
any  bills  of  exchange  drawn  by  or  on 
account  of  such  principal,  and  accepted 
by  such  agent:  or  unless  he  shall,  pre- 


750 


SMITHS     LEADIJNO     CASES. 


viously  to  his  being  indicted,  have  dis- 
closed the  oftence  on  oatli,  in  conse- 
quence of  compulsory  process  in  any 
proceeding  bona  fide  instituted  by  any 
party  aggrieved,  or  in  an  examination 
or  deposition  before  a  Commissioner  of 
Bankrupt. 

Sect.  7  preserves  the  right  of  the 
owner  to  redeem,  and  enables  him  to 
prove  under  the  bankruptcy  of  the  agent 
for  the  amount  paid  to  redeem,  or  the 
value  of,  the  goods. 

The  Sth  section  is  the  common  inter- 
pretation clause,  and  the  9th  and  last 
excludes  a  retrospective  application  of 
the  provisions  of  the  act. 

This  act,  5  &  6  Vict  c.  39,  it  may  be 
observed,  relates  to  advances  upon  the 
security  of  goods,  and  it  will  still  be  ne- 
cessary to  resort  to  the  2nd  and  4th  sec- 
tions of  6  G.  4,  c.  94,  in  cases  not  fall- 
ing within  that  category.  But  let  us 
return  to  the  effect  of  tiie  indorsement 
of  a  bill  of  lading  upon  the  right  to  stop 
in  transitu.] 

In  cases  where  a  bill  of  lading  may 
be,  and  has  been,  pledged  by  the  con- 
signee of  the  goods,  as  a  security  for 
his  own  debt,  the  legal  right  to  the  pos- 
session of  the  goods  passes  to  the 
pledgee;  but  the  right  to  stop  them  in 
transitu,  in  case  the  consignee  should 
become  insolvent,  is  not  absolutely  de- 
feated, as  it  is  in  the  case  of  a  sale  of 
r*4.'^"l  ^'^^  ^^''  °^  lading  by  the  *con- 
*■  '  -'  signee ;  for  the  vendor  may  still 
resume  his  interest  in  them,  subject  to 
the  rights  of  tLe  pledgee,  and  will  have 
a  right  at  least  in  equity,  to  the  residue 
which  may  remain,  after  satisfying  the 
pledgee's  claim.  And  further,  if  the 
goods  cotn])rised  within  the  bill  of  lading 
be  pledged  along  with  other  goods  be- 
longing to  the  pledger  hin;self,  the  ven- 
dor will  have  a  right  to  have  all  the 
pledger's  own  goods  appropriated  to  the 
discharge  of  the  pledgee's  claim  before 
any  of  the  goods  comprised  within  the 
bill  of  lading  are  so.  This  was  decided 
In  re  Westzinthus,  5  B.  &,  Ad.  817, 
where  Lapage  &i  Co.  having  purchased 
oil  from  plamtiff  Westzinthus,  paid  for 
it  by  acceptance:  and  being  in  posses- 
sion of  the  bills  of  lading,  pledged  them 
with  Hardman  &,  Co.,  as  a  security  for 
certain  advances.  I>ap;ige&.  Co.  became 
bankrupt,  and  their  acce|)tance  in  the 
plaintiff's  favour  was  dishonoured.  At 
the  time  of  their  bankruptcy  they  owed 
Hardman  &  Co.  9271/.  on  account  of 
advances  ;  as  a  security  for  which  they 


held,  besides  the  bill  of  lading,  goods  to 
the  value  of  996U.  Is.  Id.,  belonging  to 
Lapage  himself.  The  court  held  that 
Westzinthus,  who  had,  upon  the  bank- 
ruptcy of  Lapage  &  Co.,  given  notice 
to  the  master  of  the  ship  that  he  claimed 
to  stop  the  oil  in  transitu,  had  a  right  to 
insist  upon  the  proceeds  of  Lapage's 
own  goods  being  appropriated  to  the  dis- 
charge of  Hardrnan's  lien,  and,  as  they 
proved  sufficient  to  satisfy  it,  had  a  right 
to  receive  the  entire  proceeds  of  hia 
oils. — "  As  Westzinthus,"  said  Lord 
Denman,  delivering  the  judgment  of 
the  Court,  "would  have  had  a  clear 
right  at  law  to  resume  the  possession  of 
the  goods  on  the  insolvency  of  the  ven- 
dee, had  it  not  been  for  the  transfer  of 
the  property  and  right  of  possession,  for 
a  valuable  consideration  to  Hardman,  it 
appears  to  us,  that,  in  a  court  of  equity, 
such  transfer  would  be  considered  as  a 
pledge  or  mortgage  only;  and  Westzin- 
thus would  be  considered  as  having  re- 
sumed his  former  interest  in  the  goods, 
subject  to  that  pledgee  or  mortgagee,  in 
analogy  to  the  common  case  of  a  mort- 
gage of  real  estate,  which  is  considered 
as  a  mere  security,  and  the  mortgagor, 
the  owner  of  the  land.  VVe,  therefore, 
think  that  Westzinthus,  by  his  attempted 
stoppage  in  transitu,  acquired  a  right  to 
the  goods  in  equity  (subject  to  Hard- 
man's  lien  thereon),  as  against  Lapage 
and  his  assignees,  who  are  bound  by  the 
same  equity  that  Lapage  himself  was; 
and  this  view  of  the  case  agrees  with 
the  opinion  of  Mr.  Justice  Duller,  in  his 
comment  on  the  case  of  Snee  v.  Prescot 
in  Lickbarrow  v.  Mason. 

"If  then  Westzinthus  had  an  equita- 
ble right  to  the  oil  subject  to  Hardman's 
lien  thereon  for  his  debt,  he  would,  by 
means  of  his  goods,  liave  become  a 
surety  to  Hardman  for  Lapage's  debt; 
and  would  then  have  a  clear  equity  to 
oblige  Hardman  to  have  recourse  against 
Lapage's  own  goods  deposited  with  him 
to  pay  his  debt  in  ease  of  the  surety. 
And  all  the  goods,  both  of  Lapage  and 
Westzinthus,  having  been  sold,  lie  would 
have  a  right  to  insist  upon  the  proceeds 
of  Lapage's  goods  being  appropriated, 
in  the  first  instance,  to  the  payment  of 
the  debt."  [Spalding  v.  Huding,  6 
Beav.  376,  confirms  Westzinthus's  case, 
and  shows  that  the  goods  cannot  be  re- 
tained as  security  for  a  general  balance 
of  account,  but  only  for  the  specific  ad- 
vance made  upon  security  of  the  bill  of 
lading.] 


L  I  C  K  B  A  R  R  O  W     V.     MASON.  751 

The  case  of  Lickbarrow  v.  Mason,  bas  sometimes  been  supposed  to  decide, 
tbat  iu  tbe  absence  of  tbe  rigbt  of  property,  and  of  authority  to  sell,  a  con- 
signee of  goods  may,  by  an  indorsement  of  the  bill  of  lading,  for  a  valuable 
consideration  to  a  bona  fide  vendee,  give  the  latter  a  title  to  the  goods,  as 
against  the  true  owner.  A  capacity  for  transferring  the  right  of  property 
under  such  circumstances,  implies  that  the  instrument  to  which  it  is  attached, 
is  negotiable;  and  accordingly,  bills  of  lading  have  been  said  to  be  suscep- 
tible of  negotiation,  not  only  in  text-books,  but  even  in  the  dicta  of  judges 
of  no  inconsiderable  authority.  Supra,  51S,  Berkeley  v.  ^Yatling,  7  A.  & 
E.  22 ;  Bell  v.  Moss,  5  Wharton,  189,  205.  But  by  referring  to  the  Eng- 
lish reports  and  statutes,  at  the  period  at  which  promissory  notes  were  intro- 
duced, it  will  be  found,  that  the  authority  of  a  legislative  enactment,  or,  at 
least,  of  an  express  judicial  decision  is  requisite  to  establish  the  negotiability 
of  any  instrument.  In  the  case  of  bills  of  lading,  both  these  sources  of  autho- 
rity are  wanting.  Lickbarrow  v.  Mason,  applies  only  to  those  cases  in  which 
a  previous  sale  of  the  goods  has  been  made  to  the  consignee ;  and  merely 
determines,  that  if  the  vendee  of  goods  re-sell  them,  after  they  have  left  the 
custody  of  the  vendor,  to  a  bona  fide  purchaser  for  value,  the  right  of  pro- 
perty acquired  by  the  latter,  shall  not  be  defeated  by  a  subsequent  stoppage 
in  transitu,  if  he  have  taken  an  assignment  of  the  bill  of  lading.  In  this 
case,  the  property  is  transferred  by  the  sale,  from  the  original  vendor  to  the 
first  vendee,  and  by  the  subsequent  conveyance  from  him  to  the  purchaser, 
and  these  circumstances  would  be  just  as  effectual  in  passing  the  property 
without,  as  with  the  indorsement  of  the  bill  of  lading ;  Ilsley  v.  Stubbs,  9 
Mass.  65;  Gardner  v.  Rowland,  2  Pick.  599;  Stanton  v.  Eager,  16  Pick. 
473;  Nathans  v.  Giles,  5  Taunton,  588;  Meyer  v.  Sharpe,  ib.  74.  The 
only  effect  of  the  bill,  is  due  to  its  being  a  symbol  of  property,  and  even 
when  indorsed  to  the  consignee,  "  its  possession  cannot  confer  on  him  more 
power  over  the  property,  than  would  the  possession  of  the  property  itself." 
"A  bill  of  lading  will  pass  the  property  upon  a  bona  fide  indorsement  and 
delivery,  when  it  is  intended  so  to  operate,  in  the  same  manner  as  a  direct 
delivery  of  the  goods  themselves  would  do,  if  so  intended.  But  it  cannot 
operate  farther:"  per  Grose,  J.,  and  Ellenborough,  C.  J.,  Newsom  v. 
Thornton,  6  East,  41.  <'  The  bill  of  lading  is  functus  ofiicio,"  said  Lord 
Denman,  in  Hatfield  v.  Phillips,  9  M.  &  W.  467,  "  as  soon  as  the  goods 
are  landed  and  warehoused  in  the  name  of  the  holder,  who  then  becomes 
possessed  of  the  goods  themselves  in  the  eye  of  the  law,  and  derives  his 
power,  not  from  the  bill  of  lading,  but  from  such  possession."  But  when 
transferred  to  a  purchaser,  before  the  arrival  of  the  goods,  the  bill  of  lading 
amounts  in  fact  to  a  constructive  delivery,  and  consequently  creates  a  con- 
structive possession  as  it  respects  third  parties,  (Gardner  v.  Howland  ;)  and 
when,  therefore,  received  by  a  party  to  whom  goods  have  been  sold,  or  to 
whom  an  authority  to  sell  goods  has  been  given,  will  enable  him,  in  addition 
to  the  right  of  property  which  he  might  pass,  independently  of  the  bill,  to 
give  by  its  indorsement  a  constructive  possession  to  the  indorsee,  and  thus 
defeat  the  consignor's  equity  to  a  stoppage  in  transitu.  An  equity,  be  it 
observed,  which  must  always  be  somewhat  inequitably  exercised,  when 
directed  against  a  bona  fide  purchaser  for  value,  from  a  vendee  and  con- 
signee, by  a  consignor,  who,  in  addition  to  parting  with  the  property  iu 
goods,  has  so  far  parted  with  the  possession,  as  to  have  put  them  in  transitu 


752  smith's  leading  cases. 

to  a  buyer,  on  the  fiiith  of  Avbosc  property  a  second  purchaser  has  paid  his 
money. 

The  result  of  the  whole  matter  seems  to  be,  that  as  a  delivery  is  necessary, 
to  give  validity  to  a  sale  as  against  subsequent  purchasers  or  execution  cre- 
ditors, when  an  actual  delivery  is  impossible,  it  must  be  made  symbolically, 
and  by  the  symbol  best  fitted  to  prevent  fraud,  and  give  certainty  to  the 
transaction ;  Clark  v.  Chipman,  2  English,  197  j  Lainfair  v.  Sumner,  17 
Mass.  210.  When  the  goods  sold  are  at  sea,  an  indorsement  of  the  bill  of 
lading  is  the  proper  substitute  for  an  actual  delivery,  because  such  an  in- 
dorsement is  the  mode  usually  adopted  among  merchants,  and  most  likely 
to  give  notice  of  the  sale  to  third  persons.  But  when  the  bill  of  lading  is 
not  in  the  hands  of  the  vendor  at  the  time  of  the  sale,  the  invoice  or  any 
other  instrument  which  specifies  and  enumerates  the  property  sold,  may  be 
substituted  for  it;  Gardner  v.  Rowland,  2  Pick.  599.  These  principles 
only  apply  where  the  rights  of  third  persons  are  in  question,  for  as  between 
the  parties  to  a  sale  themselves,  the  right  of  property  will  pass  without  actflal 
or  constructive  delivery;  Holmes  v.  Crane,  2  Pick.  600;  Hooban  v.  Bead- 
well,  16  Ohio,  509;  and  consequently  no  indorsement  of  the  bill  of  lading 
or  other  substitute  for  delivery  is  necessary ;  D' Wolfe  v.  Harris,  4  Mason, 
515.  But  when  a  sale  or  contract  for  the  sale  of  the  same  goods  is  made  to 
or  with  different  persons,  he  who  first  obtains  possession  of  the  goods  or  an 
indorsement  of  the  bill  of  lading  when  actual  possession  is  impossible,  will 
have  the  legal  title ;  Caldwell  v.  Ball,  1  Term,  205 ;  Lanfair  v.  Sumner. 
This  is  a  mere  application  of  a  general  principle,  which  runs  through  the 
law  of  real  and  personal  property.  Thus,  it  is  well  known  that  as  between 
two  grantees  of  a  reversion,  he  who  first  obtained  an  attornment,  acquired 
the  title,  although  the  grant  to  the  other  might  have  been  prior  in  point  of 
time.  And  in  Lanfair  v.  Sumner,  17  Mass.  110;  and  Jewettv.  Lincoln,  16 
Maine,  116,  it  was  decided,  that  when  the  same  chattel  is  sold  to  different 
persons,  priority  of  possession  will  give  the  second  purchaser  superiority  of 
right  to  the  first.  ''The  general  rule,"  said  Jackson  J,,  in  delivering  the 
opinion  of  the  Court  in  Lanfair  v.  Sumner,  "  is  perfectly  well  estab- 
lished, that  delivery  of  possession  is  necessary  in  a  conveyance  of  personal 
chattels,  as  against  every  one  but  the  vendor.  When  the  same  goods  are 
sold  to  two  different  persons,  by  conveyances  equally  valid,  he  who  first  law- 
fully acquires  the  possession,  will  hold  them  against  the  other.  This  prin- 
ciple is  recognised  in  the  case  of  Lamb  &  al.  v.  Duraut,  12  Mass.  Hep.  54, 
and  in  Caldwell  &  al.  v.  Ball,  1  D.  &  E.  205.  The  latter  indeed  was  a 
case,  not  of  actual  delivery  of  goods  to  either  party,  but  of  delivery  of  the 
bill  of  lading.  There  were  two  bills  of  lading,  signed  at  different  times  by 
the  master  of  the  ship;  and  the  party,  who  first  obtained  one  of  them  by  a 
legal  title  from  the  owner  of  the  goods,  was  held  to  have  the  best  right, 
although  the  bill  of  lading,  under  which  he  claimed,  was  made  the  last. 
The  endorsement  and  delivery  of  the  bill  of  lading,  in  such  a  case,  is  equiva- 
lent to  the  actual  delivery  of  the  goods. 

"  This  is  also  the  rule  of  the  civil  law.  When  the  same  thing  is  sold  to  two 
different  persons,  ''  manifesti  juris  est,  eum,  cui  priori  traditum  est,  in  deti- 
nendo  dominio  esse  potiorem."  Cod.  3,  32,  15.  So  Voet  ad  Pand.  lib.  6, 
tit.  1,  §20,  'ad  vindicationem  rei  duobus  separatim  diverso  tempore  dis- 
tractae,  nou  is  cui  priori  vendita,  sed  cui  (pretio  soluto,  vel  fide  de  eo  habita) 


LICK  BARROW     V.     MASON.  753 

prius  est  traclita,  admittendus  est.'  And  Pothier,  in  the  place  cited  in  the 
argument,  Vente  No.  318 — 320,  states  the  same  principle;  and  puts  the 
case  of  a  sale  without  delivery,  and  a  subsequent  attachment  by  the  creditors 
of  the  vendor,  who,  he  says,  would  hold  the  goods  against  such  a  pur- 
chaser." 

In  order,  however,  to  determine  more  fully,  the  real  cflfect  of  the  indorse- 
ment of  a  bill  of  lading,  on  the  transfer  of  title  in  chattels  personal,  it  is 
necessary  to  examine  the  principles  by  which  that  transfer  is  regulated 
under  ordinary  circumstances,  and  when  no  such  endorsement  is  in  question. 
It  is  well  settled,  that  in  the  absence  of  property  and  authority,  a  sale  of 
chattels  confers  no  title,  even  when  the  vendor  is  in  possession  at  the  time 
of  the  sale,  and  the  vendee  purchases  in  good  faith  and  for  value;  Hartop 
V.  Hoare,  1  Wilson,  8,  S.  C.  2  Str.  1187;  Wilkinson  v.  King,  2  Campbell, 
335 ;  Peer  v.  Humphreys,  2  Adol.  &  Ell.  295 ;  Williams  v.  Barton,  3  Biug. 
139;  Cooper  v.  Willomatt,  1  C.  B.  672  ;  Hyde  v.  Noble,  13  New  Hamp- 
shire, 43-4;  Galvin  v.  Bacon,  2  Fairfield,  28;  Andrews  v.  Dietrick,  14 
Wend.  31;  Everett  v.  Saltus,  15  Id.  475;  Cowell  v.  Hill,  4  Denio,  323; 
Stanley  v.  Glaylord,  1  Cushing,  228.  The  only  exception  to  this  rule  at 
common  law,  that  of  a  sale  in  market  overt,  seems  inapplicable  to  the  state 
of  things  in  this  country,  and  has  lost  much  of  its  former  importance  in 
England ;  Wheelright  v.  Depeyster,  1  Johnson,  480 ;  Dame  v.  Baldwin,  8 
Mass.  518;  Griffith  v.  Hawler,  18  Vermont,  480;  Stanley  v.  Gaylord,  1 
Cushing,  536.  There  are,  indeed,  only  two  grounds  on  which  property  can 
be  supposed  to  arise  in  a  vendee,  in  consequence  of  a  sale  made  by  a  vendor 
who  has  no  property  in  himself.  The  first  of  these  supposes  a  transfer  of  the 
former  title  of  the  true  owner,  by  virtue  of  some  express  or  implied  autho- 
rity from  him ;  the  second,  the  creation  of  a  new  and  independent  title, 
growing  out  of  the  circumstances  attendant  upon  the  sale,  such  as  the  pos- 
session of  the  property  by  the  vendor,  the  valuable  consideration  given  by 
the  purchaser,  and  the  bona  fides  of  the  transaction,  so  far  as  he  is  concerned. 
And  it  has  sometimes  been  argued,  that  where  one  of  two  innocent  parties 
must  suffer  from  a  sale  made  under  these  circumstances,  the  loss  should  fall 
upon  the  owner,  who  has  intrusted  the  vendor  with  the  possession  of  the 
goods,  and  enabled  him  to  commit  a  fraud,  rather  than  on  the  vendee,  who  has 
acted  in  good  faith  and  with  proper  caution.  But  if  this  conclusion  could 
follow  in  any  case,  it  would  do  so  iu  those,  where  a  factor  who  has  been 
intrusted  with  the  indicia  of  title  in  chattels,  in  addition  to  the  possession 
of  the  chattels  themselves,  and  with  the  authority  not  only  to  sell  them,  but 
to  sell  them  as  his  own,  and  has  thus  been  enabled  to  hold  himself  out  to 
the  world  as  the  owner,  contracts  with  third  parties,  who  advance  money  on 
the  faith  of  his  apparent  ownership,  and  a  deposit  of  the  goods  in  pawn. 
Yet  it  is  well  settled,  that  such  a  pledge  gives  no  right  whatever  to  the 
goods  as  against  the  real  owner,  not  even  that  of  the  factor ;  Patterson  v. 
Tash,  2  Strange,  1178;  Kinder  v.  Shaw,  2  Mass.  278;  Odiorne  v.  Maxcy, 
13  id.  178;  Newbold  v.  Wright,  4  Bawle,  195;  Van  Amringe  v.  Peabody,  1 
Mason,  466;  Shaw  v.  Stone,  1  Cushing,  228.  These  cases  are  manifestly 
inconsistent  with  the  idea,  that  an  owner  who  permits  chattels  to  be  dealt 
with  by  an  agent,  as  if  they  belonged  to  the  latter,  will  be  bound  by  his 
acts,  for  such  a  rule  would  extend  to  all  contracts  made  in  good  faith,  and  for 
a  valuable  consideration  by  third  parties,  whether  for  transferring  an  abso- 

VoL.  I.— 48 


754  smith's    leading    cases. 

lute  property  by  sale,  or  a  qualified  property  by  pledge.  And  they  can  only 
be  explained  on  the  ground,  that  as  the  power  of  an  agent  is  bounded  in 
!ill  cases  by  the  strict  limits  of  the  authoritj'  received  from  the  principal, 
a  pledge  by  a  factor,  of  goods  which  he  is  authorised  to  sell;  is  necessarily 
invalid. 

The  general  doctrine  that  no  right  can  arise  under  a  contract  of  pledge 
or  sale,  in  the  absence  both  of  property  and  authority  in  the  party  who 
makes  it,  is  strikingly  illustrated  by  the  case  of  3IcCombie  v.  Davis,  6  East, 
538,  7  id.  5,  where  a  broker  who  had  bought  a  quantity  of  tobacco  on 
account  of  the  plaintiiF,  entered  it  in  his  own  name  on  the  books  of  the 
king's  warehouse,  and  subsequently  pledged  it  to  the  defendant,  who  made 
advances  upon  it  in  the  belief  that  he  was  the  real  owner.  It  was  held 
under  these  circumstances,  that  as  the  broker  had  acted  without  authority 
in  making  the  pledge,  it  was  wholly  void,  and  did  not  even  entitle  the  defen- 
dant to  retain  for  the  amount  due  the  broker  on  account  of  the  purchase, 
because  the  lien  of  the  latter  was  divested  by  parting  with  the  possession  of 
the  goods.  The  same  point  was  decided  by  the  court  of  King's  Bench  in 
Barton  v.  Williams,  5  B.  &  Aid.  395,  and  subsequently  in  error  by  the 
Exchequer  Chamber  in  Williams  v.  Barton,  3  Bing.  139,  under  similar  cir- 
cumstances, except  that  the  unauthorised  pledge  was  of  dock  warrants, 
representing  goods,  and  not  of  the  goods  themselves.  It  was  determined  in 
like  manner  in  Guereiro  v.  Peile,  3  Barn.  &  Aid.  610,  that  the  defendants, 
who  had  purchased  a  quantity  of  wine  from  the  parties  to  whom  it  had  been 
consigned  for  sale  by  the  plaintiff,  under  the  belief  that  they  were  the 
owners,  and  paid  for  it  in  rum,  had  no  title  as  against  the  consignors,  because 
the  authority  given  by  the  latter,  only  extended  to  making  a  sale  for  cash, 
and  not  by  way  of  barter.  So  in  Evans  v.  Whittenbury,  2  B.  &  Ad.  484,  a 
sale  by  a  wharfinger,  who  was  in  the  habit  of  acting  as  a  factor,  of  goods  in 
his  possession,  but  which  he  had  no  authority  to  sell,  was  held  to  be  abso- 
lutely void  at  common  law,  and  not  within  the  remedial  clauses  of  the  sta- 
tute 9  Geo.  4.  The  course  of  decision  has  been  the  same  on  this  point,  in 
the  United  States  as  in  England,  and  equally  determines,  that  the  title  to 
chattels  cannot  be  transferred  by  a  sale,  made  without  authority  from  the 
owner,  even  when  he  has  parted  with  the  possession  to  the  vendor,  and  thus 
enabled  him  to  mislead  the  vendee  by  a  false  appearance  of  ownership. 
Thus  in  Andrews  v.  Dietrick,  14  Wendell,  31,  an  auctioneer  who  had  dealt 
with  the  holder  of  a  house  in  which  the  carpets  were  down,  under  the  belief 
that  he  was  the  owner  of  the  carpets,  and  had  advanced  money  on  the  faith 
of  his  ownership,  was  held  to  have  acquired  no  title  as  against  the  true 
owner,  who  had  delivered  them  to  the  party  in  whose  possession  they  were, 
under  a  contract  of  sale,  at  so  much  per  yard.  This  contract  required  nothing 
more  to  make  it  absolute,  and  pass  the  right  of  property,  than  that  the  quan- 
tity of  carpeting  necessary  for  the  house,  which  was  unknown  at  the  time  of 
delivery,  although  since  ascertained,  should  be  communicated  to  the  original 
owner  of  the  carpet;  but  it  was  decided  that  until  this  was  done,  the  title 
remained  in  him,  even  as  against  a  bona  fide  purchaser  from  the  ven- 
dee. A  similar  decision  was  made  in  Everett  v.  Saltus,  15  Wend.  475, 
20  Wend.  268,  with  regard  to  a  sale  by  a  party  in  possession,  not  merely  of 
property,  but  of  the  bill  of  lading,  endorsed  in  blank,  and  other  documen- 
tary indicia  of  property',  who  had  obtained  those  indicia  without  the  consent 


LICKB  ARROW    V.    MASON.  755 

of  the  true  owner.  The  same  point  was  determinod  in  Williams  v.  Merle, 
11  Wendell,  80,  where  a  sale  made  by  a  party  in  possession  of  goods,  and 
of  an  inspector's  certificate  of  their  quality,  which  had  been  fraudulently  pro- 
cured, was  held  to  pass  no  title  to  the  vendor.  A  similar  view  of  the  law  was 
taken  in  Easton  v.  Worthington,  5  S.  &  R.  130 ;  and  it  was  subsequently  de- 
cided in  Leckey  v.  M'Dermott,  8  S.  &  Jx.  500,  that  a  sale  of  personal  property 
will  be  invalid,  even  where  the  vendor  has  obtained  the  possession  of  the  goods 
from  the  owner,  unless  he  has  title  or  authority,  as  well  as  possession.  And 
the  same  point  was  determined  in  the  recent  cases  of  Cowell  v.  Hill,  4 
Denio,  323,  and  Stanley  v.  Gaylord,  2  Gushing,  228. 

It  is  evident,  therefore,  under  all  the  decisions,  that  although  the  posses- 
sion of  chattels  personal,  is  prima  facie  evidence  of  property,  and  conse- 
quently of  the  right  to  sell,  yet  that  when  property  does  not  in  fact  exist, 
possession  confers  no  right,  cither  on  the  holder  himself,  or  on  a  vendee 
under  him,  who  may  have  paid  a  valuable  consideration  on  the  faith  of  such 
possession.  But  the  exigencies  of  commerce  have  called  a  class  of  docu- 
ments into  being,  which  are  substantially  acknowledgments,  by  public  or  pri- 
vate agents,  of  the  custody  or  possession  of  personal  property,  and  of  the 
account  or  right,  in,  or  for  which  that  custody  is  held ;  and  the  usage  of  trade 
has  invested  these  documents,  of  which  the  bill  of  lading  may  be  regarded 
as  the  type,  with  the  power  of  representing  the  property  to  which  they  refer, 
so  that  the  possession  of  the  document,  is,  in  eflPect,  the  possession  of  the 
property  itself.  Thus,  warrants  or  orders,  are  habitually  issued  to  the  per- 
sons entitled  to  the  goods,  deposited  in  the  various  public  warehouses  in 
England,  directing  the  delivery  of  the  goods  to  them  or  to  their  assignees, 
and  it  is  well  settled  that  a  sale,  accompanied  by  a  delivery  of  these  warrants, 
has  the  same  effect  as  if  the  goods  themselves  were  delivei'ed.  This  was 
a  mere  application  of  the  rule  of  law,  which  permits  the  substitution  of  a  sym- 
bolic delivery,  where  actual  delivery  is  inconvenient  or  impossible.  An  effort, 
was  however  made  in  the  earlier  part  of  this  century,  to  give  a  greater  effecfc 
to  the  delivery  of  the  symbol,  than  to  that  of  the  substance  which  it  represented,, 
and  to  treat  the  holder  of  a  dock  or  East  India  warrant  for  goods,  as  entitled 
to  pass  the  right  of  property  in  the  goods  to  third  persons,  in  the  absence  both 
of  title  and  authority  in  himself,  or  in  other  words,  to  render  these  instru- 
ments negotiable,  and  give  them  the  power  of  creating  a  title  by  their  trans- 
fer, in  cases  where  none  existed  before  they  were  transferred.  The  cases  of 
Zwinger  v.  Samuda,  7  Taunton,  265,  and  Lucas  v.  Dorrein,  ib.  278,  seem  to 
have  been  understood  as  determining  this  point  as  to  dock-warrants,  and  the 
principal  case  as  to  bills  of  lading,  (supra).  But  although  the  language  held 
by  the  puisne  judges  of  the  court  of  common  pleas,  in  the  absence  of  the 
Chief  Justice,  in  Zwinger  v.  Samuda,  and  Lucas  v.  Dorrein,  tends  to  justify 
this  conclusion,  yet  it  was  not  necessarily  or  properly  involved  in  the  decision 
of  those  cases,  which  rest  substantially  on  other  grounds,  and  has  not  been 
followed,  either  by  the  courts  or  the  profession,  as  law.  Subsequently  to 
these  decisions,  the  statute  6  Geo.  4,  c.  94,  (which  was  extended  in  England 
by  the  5  &  6  Vict.  c.  39,  and  followed  in  New  York  and  Pennsylvania,  by 
the  act  of  April  14,  1834,  in  one  state,  and  that  of  April,  16,  1830,  in  the 
other,)  provided  that  persons  entrusted  with  the  possession  of  bills  of  lading, 
dock-warrants,  or  other  documents  of  title  to  goods,  should  have  the  power  to 
make  contracts  for  the  sale,  disposition  or  pledge  of  such  goods,  which  should 


75G  smith's  leading   cases. 

be  binding  as  against  the  true  owner.  It  is  evident  from  the  language  of  this 
act,  as  well  as  from  the  decisions  which  have  been  made  under  it,  that  the 
power  thus  given  is  purely  statutory,  and  wholly  unknown  to  tLe  com- 
mon law.  Thus,  in  Evans  v.  Truman,  2  B.  &  A.  886,  and  Taylor  v. 
Kymer,  3  id.  320,  where  advances  were  made  to  a  broker  on  the  faith  of  his 
possession  and  apparent  ownership  of  East  India  warrants  for  indigo,  deli- 
verable to  order,  it  was  held,  that  as  the  case  did  not  come  within  the  remedial 
provisions  of  the  statute,  the  party  who  made  the  advances  acquired  no 
interest,  either  in  the  warrants  themselves,  or  in  the  indigo  which  they 
represented.  The  same  point  has  since  been  decided  in  a  number  of  other 
instances.  Bonzi  v.  Stewart,  4  Manning  &  Granger,  295,  326 ;  Phillips 
T.  Huth,  6  M.  &W.  572 ;  Hatfield  v.  Phillips,  9  id.  647 ;  14  id.  665. 
And  the  true  rule  of  law,  with  regard  to  the  effect  of  the  transfer  of  the 
documentary  evidence  of  title  to  goods,  on  the  goods  themselves,  is  conclu- 
sively shown  by  the  case  of  Newsom  v.  Thornton,  6  East,  17,  where  the 
indorsee  for  value  of  a  bill  of  lading,  was  held  to  acquire  no  interest  under 
the  indorsement,  because  it  was  a  departure  from  the  authority  given  by  the 
owner  to  the  party  who  made  it,  although  the  transaction  would  necessarily 
have  taken  effect  as  a  negotiation,  if  such  instruments  were  really  nego- 
tiable. 

A  sale  either  of  real  or  personal  property  by  a  vendor  without  title,  will 
however,  be  valid  in  all  cases  where  the  true  owner  has  pursued  such  a 
course,  as  to  estop  him  from  asserting  his  title.  Thus  the  owner  may  depart 
with  the  documentary  evidence  of  title  to  chattels,  and  with  the  possession 
of  the  chattels  themselves,  so  far  as  this  is  necessary  for  the  business  of  life, 
or  authorized  by  the  custom  of  trade,  but  if  he  go  beyond  this,  and  take 
any  unusual  or  unnecessary  step  of  a  nature  to  mislead  third  persons,  as  to 
the  true  position  of  the  title,  the  loss  arising  from  any  act  done  under  the 
false  impression,  which  he  has  been  instrumental  in  creating,  will  be  thrown 
upon  him.  Thus,  in  Pickering  v.  Busk,  15  East,  38,  the  owner  of  hemp, 
who  had  directed  it  to  be  entered  on  the  books  of  a  wharfinger,  in  the  name 
of  the  broker  by  whom  it  was  purchased,  was  held  to  be  bound  by  a  sub- 
sequent unauthorised  sale  by  the  broker,  on  the  ground,  that  the  entry 
amounted  to  a  fraud  on  the  purchaser,  unless  it  was  intended  to  authorise 
the  broker,  to  deal  with  the  hemp  as  his  own.  '^  The  hemp,"  said  Lord 
Ellenborough,  "  could  only  have  been  transferred  into  the  name  of  the 
broker  for  the  purposes  of  sale,  and  the  party  who  transferred  it  cannot 
be  allowed  to  rescind  a  contract  which  he  had  authorized.  If  he  intended 
to  retain  the  dominion  over  the  hemp,  he  should  have  placed  it  in  the 
wharfinger's  books  in  his  own  name."  The  distinction  between  this  case 
and  that  of  McCombie  v.  Davies,  seems  to  be,  that  while  the  goods  sold 
were  entered  in  both  in  the  name  of  the  agent,  this  was  done  in  the  one 
by  the  direction  of  the  principal,  while  in  the  other  it  seems  to  have  been 
the  unauthorized  act  of  the  agent.  But  this  is  amply  sufficient,  to  recon- 
cile these  decisions  with  each  other  and  with  principle,  for  while  a  prin- 
cipal is  not  bound  by  the  unauthorized  acts  of  his  agent,  he  is  bound  by 
every  act  on  his  own  part,  which  gives  them  either  a  real  or  an  apparent 
authority.  And  although  the  entry  of  the  hemp  in  the  name  of  the  agent, 
in  Pickering  v.  Busk,  might  not  go  further  towards  enabling  him  to  hold 
himself  out  to  the  world  as  the  owner,  than  the  transfer  of  the  bill  of  lading 


^  L  I  C  K  B  A  R  R  0  W    V.    M  A  S  0  N.  757 

indorsed  in  blank  in  Newsoni  v.  Thornton,  or  of  the  Dock  or  India  warrants 
in  Williams  v.  Barton,  and  Taylor  v.  Kymer,  yet  it  must  be  remembered, 
that  the  transfer  of  these  documents  was  in  accordance  v/ith  the  necessary 
and  usual  course  of  trade,  while  the  entry  was  not,  unless  intended  to 
give  the  broker  all  the  rights  of  an  absolute  owner.  This  distinction  is  still 
further  illustrated  by  the  case  of  Dyer  v.  Pearson,  3  B.  &  C.  38.  In  that 
case  Smith,  a  merchant  residing  in  London,  purchased  a  quantity  of  wool 
for  the  plaintiffs,  and  sent  them  the  invoice,  but  kept  the  wool  and  the  bill 
of  lading  for  it  indorsed  in  blank  in  his  own  hands.  He  subsequently  sold 
the  wool,  and  transferred  the  bill  of  lading  to  the  defendant,  against  whom 
the  plaintiffs  brought  trover.  The  jury  were  told  at  the  trial,  that  if  the 
circumstances  under  which  the  purchase  was  made,  justified  the  defendants 
in  believing  that  Smith  had  authority  to  sell,  the  verdict  ought  to  be  for 
them.  But  the  verdict  was  subsequently  set  aside,  and  a  new  trial  granted, 
on  the  ground  that  the  existence  of  circumstances  justifying  the  belief,  that 
the  vendor  has  authority  to  sell,  will  not  enable  him  to  make  a  good  title 
if  such  authority  does  not  exist  in  fact.  It  was  notwithstanding  intimated 
that  if  the  plaintiffs  had,  by  their  conduct,  enabled  Smith  to  hold  himself 
out  as  the  owner,  they  might  be  precluded  from  recovering  against  the  de- 
fendants, who  had  given  value  on  the  faith  of  such  ownership.  And  although 
the  latter  point  was  not  actually  decided,  it  would  seem  to  be  law,  if  taken 
with  the  qualification  that  the  acts  relied  on  as  precluding  an  owner  from 
asserting  his  right,  must  have  been  out  of  the  usual  and  regular  course  of 
trade,  or  at  least  not  within  it. 

It  would  seem  evident,  from  what  has  been  said,  that  Lickbarrow  v.  Mason 
should  not  be  considered  as- going  beyond  the  only  point  which  it  actually 
determines,  that  the  right  of  a  vendor  to  stop  in  transitu,  maj'  be  defeated 
by  a  sale  made  by  the  vendee,  accompanied  by  a  transfer  of  the  bill  of  lading, 
and  not  treated  as  giving  bills  of  lading  the  character  of  negotiable  instru- 
ments, which  was  wholly  unnecessary  for  the  purposes  of  the  decision.  For, 
as  the  property  passes  under  such  circumstances  by  the  sale,  the  endorsement 
of  the  bill  has  no  other  effect  than  that  of  defeating  the  right  of  the  vendor 
to  reclaim  it,  by  operating  as  a  constructive  and  sj  mbolic  delivery.  The 
utmost,  therefore,  that  this  decision  establishes,  is  an  exception  to  the  rule, 
that  an  unpaid  vendor  has  a  right  to  stop  in  transitu,  an  exception  and  a  rule, 
which  have  nothing  in  common  with  the  negotiability,  either  of  the  bill  of 
lading,  or  of  the  property  which  it  represents.  Nothing  can,  in  fact,  be  a 
greater  departure  from  the  principles  and  analogies  of  the  common  law, 
than  to  treat  bills  of  lading,  or  other  documentary  evidences  of  title  to 
chattels  personal,  as  negotiable  instruments.  Instruments  which  represent 
choses  in  action,  may  be  negotiable,  because  the  right  cannot  be  separated 
from  the  instrument,  and  has  no  distinct  or  actual  physical  existence.  And 
even  there,  negotiability  only  exists  in  the  case  of  absolute  promises  for  the 
payment  of  money,  a  thing  negotiable  in  itself,  and  which  cannot  be  re- 
claimed by  the  true  owner,  from  any  one  who  has  received  it  bona  fide,  and 
in  exchange  for  a  valuable  consideration.  But  chattels  personal  are  wholly 
insusceptible  of  negotiation  in  themselves,  and  it  is  manifestly  inconsistent 
to  give  the  doouracnts  which  represent  them,  a  different  character.  In  Thomp- 
son V.  Dominy,  14  M.  &  W.  402,  the  indorsement  of  a  bill  of  lading,  was 
held  not  to  pass  any  right  in  the  contract  set   forth  on  its  face,  nor  entitle 


758  smith's  leading  cases. 

the  indorsee  to  bring  suit  in  his  own  name,  against  the  owners  of  the  vessel, 
for  their  failure  to  deliver  the  goods  agreeably  to  its  terms.  It  is  difficult 
to  understand,  how  that  which  is  not  negotiable  in  its  direct  and  primary 
sense,  can  be  so  in  its  indirect  and  secondary  operation.  And  in  Warring 
V.  Cox,  1  Campbell,  3G9,  where  the  point  decided  in  Thompson  v.  Dominy, 
had  been  previously  ruled  the  same  way,  Lord  ELLENnoRouGll  declared,  that 
'<  no  case  had  gone  so  far  as  to  decide  that  a  bill  of  lading  is  transferable  like 
a  bill  of  exchange,  or  that  the  mere  signature  of  the  person  entitled  to  the  de- 
livery of  the  goods  prima  facie,  passes  the  property  in  them  to  the  indorsee." 

The  result  of  the  cases,  therefore,  as  a  whole,  seems  to  be  that  while,  on 
the  one  hand  the  possession  of  bills  of  lading  or  other  documents  of  the 
same  nature,  may  be  evidence  of  title  and  equivalent  for  some  purposes  to 
actual  possession,  yet,  that  on  the  other,  it  does  not  constitute  title,  nor  dis- 
pense with  the  rule  nemo  plus  juris  ad  allemim  transferre  potest,  quam  ipse 
hahet.  This  construction  of  the  law,  seems  to  be  the  only  one  consistent  with 
actual  decision,  and  should  therefore  be  adopted,  even  if  inconsistent  with 
some  occasional  dicta.  It  may,  no  doubt,  operate  hardly  in  some  cases  on 
purchasers,  who  have  parted  with  value  on  the  faith  of  an  apparent  ownership, 
which  subsequently  proves  not  to  be  real.  But  the  inconvenience  which  might 
otherwise  arise  from  this  source,  is  very  much  diminished  in  the  case  both  of 
real  and  personal  property,  by  the  well  settled  principle,  that  the  rightful  owner 
will  be  estopped,  whenever  his  negligence  gives  occasion  to  the  fraud  practised 
on  the  purchaser  (supra).  And  when  taken  with  this  limitation  the  rule  that 
the  right  of  property  in  chattels  cannot  be  transferred,  unless  on  the  ground  of 
authority  or  title,  is  just  and  salutary  in  its  operation.  There  may  be  much 
plausibility,  but  there  is  little  force  in  the  argument,  that  when  one  of  two 
innocent  parties  must  suffer,  from  a  fraudulent  or  unauthorized  sale,  the  loss 
shall  fall  upon  him  who  has  entrusted  the  vendor  with  the  possession  of  the 
goods,  and  thus  enabled  him  to  assume  the  appearance  of  owning  that  to 
which  he  has  no  title,  rather  than  on  an  innocent  purchaser,  who  has  bought 
on  the  faith  of  his  ownership.  The  necessities  of  commerce  require,  that 
agents  should  be  entrusted  with  the  possession  of  goods  under  circumstances 
which  render  it  difficult,  or  impossible  to  prove,  that  those  who  claim  under 
them,  were  aware,  that  their  possession  was  fiduciary,  and  not  beneficial. 
To  throw  the  burden  of  proving  notice,  in  such  cases,  on  the  owner,  would 
place  him  at  the  mercy  of  every  fraud  between  the  agent  and  third  persons. 
Moreover,  while  the  vendee  continues  to  be  within  the  danger  of  the  maxim, 
caveat  emptor,  and  is  held  to  ascertaining  at  his  peril,  that  the  party  from 
whom  he  purchases,  has  either  property  or  authority  to  sell,  he  may  be  led 
to  observe,  and  take  advantage  of  a  great  variety  of  circumstances,  which  if 
followed  up,  will  serve  as  clues  to  lead  him  to  a  discovery  of  the  truth, 
but  which  would  be  entirely  disregarded,  under  the  temptation  of  a  good 
bargain,  were  it  once  established,  that  the  title  of  a  purchaser  will  be  good, 
unless  it  be  proved,  that  he  knew  that  of  the  vendor  to  be  bad. 

On  the  whole,  therefore,  it  would  appear,  that  the  best  safeguard  against 
the  frauds  of  agents,  who  are  entrusted  with  the  property  of  others,  is  the 
actual  disability  which  the  common  law  has  attached  to  all  their  transactions, 
stepping  beyond  the  bounds  of  their  authority,  which  enlists  the  interests 
of  those  with  whom  they  deal,  on  the  side  of  discovering  an  intended 
fraud,  before  its  perpetration,  as  the  opposite  principle  of  negotiability,  dis- 


L  I  C  K  B  A  R  R  0  W     V.     MASON.  750 

poses  the  same  interest  to  facilitate  the  fraud  at  the  time,  and  conceal  it 
afterwards. 

It  would  seem,  that  from  the  cases  and  principles  stated  in  this  note,  wo 
may  draw  the  following  conclusions. 

The  bill  of  lading  is  merely,  what  it  professes  to  be  on  its  face,  a  receipt 
for  goods,  given  by  a  common  carrier,  accompanied  with  a  promise  to  rede- 
liver them  to  the  bailor,  or  according  to  his  directions. 

Its  delivery  or  indorsement  have  no  effect  in  passing  property,  except  as 
evidence  of  a  sale,  or  as  amounting  to  a  symbolical  delivery,  and  where  the 
sale  would  have  given  a  good  title  to  the  vendee,  in  the  absence  of  the  bill, 
on  the  delivery  of  any  other  symbol  of  possession;  so  that  in  all  cases, 
where  a  sale  of  property  is  accompanied  by  an  indorsement  of  the  bill  of  lad- 
ing, the  title  passes  by  the  bargain  and  sale,  and  not  by  the  indorsement. 
Gardner  v.  Howland,  2  Pick.  599.  Between  the  original  parties  to  a  sale, 
moreover,  the  indorsement  of  the  bill  is  as  ineffectual  for  all  purposes, 
as  it  is  for  the  transfer  of  the  property,  and  merely  serves  as  evidence  of  the 
relations  between  them,  without  affecting  those  relations  by  its  own  opera- 
tion. Its  receipt  by  the  consignee  and  vendee,  will  not  prevent  the  con- 
signor and  vendor,  from  exercising  his  right  of  stoppage  in  transitu.  And 
the  only  case  in  which  the  indorsement  and  delivery  of  the  bill,  will  confer 
a  greater  right  than  would  be  conferred  without  such  indorsement,  by  a  pro- 
perly executed  assignment  of  the  property  to  which  the  bill  relates,  is  as 
between  consignor  and  consignee  on  the  one  side,  and  third  parties  on  the 
other.  In  such  cas^s,  where  there  has  been  a  sale  by  the  consignee,  which 
would  give  a  title  to  the  vendee,  as  against  the  consignor,  independently  of 
the  indorsement  of  the  bill,  the  indorsement  will  take  away  the  right  of  the 
latter  to  a  stoppage  in  transitu,  when  it  would  otherwise  exist.  In  like 
manner,  where  there  have  been  circumstances  of  fraud,  between  vendor  and 
vendee,  which  would  authorise  the  former  to  resume  possession  of  the 
goods,  and  avoid  the  sale  as  against  the  latter,  the  indorsement  of  the  bill 
of  lading  will  amount  to  a  constructive  delivery,  if  the  position  of  the 
goods  be  such,  that  no  actual  delivery  can  be  made.  On  this  account  a 
purchaser,  who  has  taken  an  indorsement  of  the  bill  under  such  circum- 
stances, may  be  entitled  to  hold  the  goods,  when  otherwise  he  would  not. 
Rowley  v.  Bigelow,  12  Pickering,  307.  From  this  effect  of  the  delivery  of 
the  bill  of  lading,  as  amounting  to  a  constructive  possession,  the  idea  of 
negotiability  has  been  attached  to  the  indorsement  of  a  document,  which,  so 
far  from  giving  a  greater  right  of  property  to  the  indorsee  than  was  held  by 
the  indorser,  transfers  of  itself  no  right  of  property  whatever,  although, 
according  to  circumstances,  it  may  either  be  evidence  of  a  contract  of  sale 
when  the  goods  have  arrived,  or  amount  to  a  constructive  delivery,  in  pur- 
suance of  such  contract,  while  they  ai'c  at  sea.  It  is  true,  a  sale  of  goods 
not  yet  received  by  the  vendee,  is  not  suCBcient  to  divest  the  right  of  stop- 
page in  transitu,  without  an  indorsement  of  the  bill  of  lading.  Craven  v. 
Ryder,  6  Taunton,  433.  This,  however,  depends  upon  reasons,  entirely  un- 
connected with  the  negotiability  of  the  bill.  When  goods,  which  have  been 
sold  and  shipped^  but  which  have  not  been  paid  for,  and  have  not  yet  arrived 
in  port,  are  sold  without  an  indorsement  of  the  bill  of  lading,  the  purchaser 
has  notice,  consti-uctively,  if  not  actually,  that  the  consignee  has  not  been 
entrusted  with  the  bill  by  the  consignor,  and  consequently,  that  the  latter 


760  smith's   leading    cases. 

has  not  given  up  his  control  over  the  property,  or  the  exercise  of  the  right 
of  stoppage  in  transitu.     Craven  v.  llyder,  per  Gibbs,  C.  J. 

The  bill  of  lading  has  been  invested  with  this  character  of  symbolic  pos- 
session, when  transferred  by  the  consignee  for  valuable  consideration,  in 
order  to  clothe  the  latter  with  the  power  of  converting  the  goods  into  cash 
before  they  are  received,  and  thus  carrying  out  the  intentions  of  the  con- 
signor. In  this  manner,  the  parties  to  a  shipment,  by  keeping  the  bill  of 
lading  in  the  hands  of  the  consignor,  or  sending  it  to  the  consignee,  arc 
enabled  to  retain  the  right  of  stoppage  in  transitu  in  the  former  as  against 
all  the  world,  or  to  divest  him  of  that  right  in  favour  of  a  bona  fide  pur- 
chaser from  the  consignee,  who  takes  an  indorsement  of  the  bill  from  the 
latter.  When  the  object  is  the  power  of  realizing  the  value  of  the  goods 
before  their  arrival,  the  latter  course  will  be  pursued ;  and  where  the  sol- 
vency of  the  consignee  is  doubted,  the  former.  In  this  manner,  the  right 
to  stop  in  transitu,  may,  at  the  choice  of  the  parties,  either  be  preserved  in 
full  force,  or  be  reconciled  with  the  power  of  transferring  an  unincumbered 
title  to  property  while  at  sea,  which  would  otherwise  necessarily  be  fettered 
from  the  period  of  the  shipment  of  the  goods  until  that  of  their  arrival. 

It  still  remains  to  consider  the  general  principles,  on  which  the  right  of 
stoppage  is  dependent,  apart  from  the  particular  point  determined  in  Lick- 
barrow  v.  Mason.  The  right  to  stop  in  transitu,  in  the  proper  sense  of  the 
term,  only  exists  as  between  vendor  and  vendee.  In  all  other  cases,  where 
goods  are  consigned  to  agents,  no  matter  how  extensive  their  authority  as 
factors  or  otherwise,  any  subsequent  change  in  their  destination,  is  in  fact  a 
revocation  of  authority,  not  a  stoppage  in  transitu.  The  Merrimack,  8 
Cranch,  317,  353.  Such  a  revocation  may  be  effected  after  the  goods  have 
been  received  by  the  consignee,  as  well  as  before,  except  in  so  far  as  his 
right  of  lien  may  have  attached  for  the  balance  of  his  accounts  as  agent. 
It  can  be  ultimately  defeated,  only  by  some  bona  fide  transaction  between 
the  agent  and  a  third  party,  done  in  pursuance  of  the  authority  from 
the  consignor;  and  only  then,  because,  as  such  an  act  is  that  of  the 
consignor  himself,  it  cannot  be  set  aside  by  him.  Wright  v.  Campbell, 
4  Burrow,  2046.  Nor  does  the  receipt  of  the  bill  of  lading,  alter  the 
rights  and  relations  of  the  shipper  of  goods,  with  regard  to  the  party  to 
whom  they  are  consigned.  As  between  them,  it  does  not  amount  to 
constructive  possession,  and  only  has  that  effect,  as  between  the  consignor 
and  consignee  on  the  one  side,  and  third  parties  on  the  other. 

Thus,  the  receipt  of  a  bill  of  lading  by  a  factor,  to  whom  his  principal  is 
indebted,  will  not  amount  to  a  constructive  possession  of  the  goods,  nor 
give  the  factor  a  lien  for  the  balance  of  accounts.  Ryberg  v.  Snell,  2 
Wash.  C.  C.  Reports,  403 ;  Walter  v.  Ross,  lb.  283  ;  Bonner  v.  Marsh,  10 
Smedes  &  Marshall,  376.  In  order  that  the  lien  should  attach,  the  goods 
themselves  must  come  to  the  factor's  hands ;  and  the  owner  may  prevent  it 
from  attaching,  either  by  selling  the  goods  before  this  occurs,  to  a  third 
party,  or  by  revoking  the  factor's  authority,  and  entrusting  them  to  another 
person.  This  revocation  may  be  effected  whether  the  factor  be  insolvent  or 
not;  which  marks  the  distinction  between  such  a  revocation  and  a  stoppage  in 
transitu,  which  can  only  take  place  in  cases  of  insolvency.  Walter  v.  Ross, 
2  Wash.  C.  C.  Rep.  283. 

It  is  not  necessary,  however,  in  order  to  support  the  right  of  stoppage  in 


.       of 
\     n, 


LICKBARROW    V.     MASON.  761 

transitu,  tli'at  the  consignor  should  be  the  original  owner  of  the  goods,  or 
have  purchased  them  on  his  own  account.  Although  acting  as  an  agent, 
for  a  commission,  and  with  the  view  of  paying  for  them  ultimately,  with 
funds  derived  from  the  consignee,  still,  if  he  have  obtained  them  on  his 
own  risk  and  credit,  he  will  be  entitled  to  stop  them  in  transitu,  on  the  in- 
solvency of  the  latter;  Newhall  v.  Vargas,  13  Maine,  93;  15  Maine,  314; 
Ilsley  V.  Stubbs,  9  Mass.  65 ;  7  Mass.  457 ;  Jeukyns  v.  Usborne,  7  M.  & 
G.  678. 

In  Gribson  v.  Carruthers,  8  M.  &  W.  321,  the  principle  which,  in  cases 
of  insolvency,  justifies  a  resumption  of  the  possession  of  goods,  which  have 
not  reached  the  custody  of  the  vendee,  was  resorted  to  as  a  defence  where 
they  had  never  left  that  of  the  vendor.  An  action  was  brought  by  assignees 
?i  bankruptcy,  to  recover  damages  for  the  fiiilure  of  the  defendants  to  fulfil  a 
contract  to  ship  a  cargo  of  linseed,  on  board  a  vessel  belonging  to  the  bank- 
rupt, taking  bills  of  lading  in  their  own  name,  and  receiving  payment  in 
cash  upon  the  arrival  of  the  linseed  in  London.  It  was  insisted  for  the 
defendants,  that  as  the  bankruptcy  had  intervened  before  the  period  fixed 
for  the  delivery  of  the  cargo,  they  were  entitled  to  retain  possession  of  the 
goods,  as  if  it  had  been  parted  with,  they  would  have  been  entitled  to  regain 
it,  by  a  stoppage  in  transitu.  The  soundness  of  this  reasoning  was  approved 
by  Lord  Abinger,  who  held  that  the  defendants  could  neither  be  bound  to 
part  with  their  goods  without  being  paid  for  them,  nor  to  send  a  cargo  to  a 
distant,  and  perhaps  falling  market,  upon  the  chance  that  the  assignees 
would  provide  means  of  payment  for  it  when  there ;  and  also  expressed  the 
opinion,  that  the  contract  was  one  which  the  defendants  were  not  bound  to  fulfil, 
towards  persons  different  from  those  with  whom  they  originally  contracted, 
although  standing  in  the  position  of  assignees  in  bankruptcy.  But  the  ma- 
jority of  the  court  differed  from  his  lordship,  and  held  that  it  was  the  duty 
of  the  defendants  to  have  sent  on  the  cargo  in  such  a  manner,  as  to  have 
retained  the  control  over  it  on  its  arrival  in  London,  and  then  to  have  been 
guided  by  the  action  of  the  assignees  in  delivering  it  to  the  latter,  or  selling 
it  on  their  own  account. 

Although  the  vendor  may  have  received  part  payment  for  the  goods  in 
cash,  he  may  still  have  recourse  to  a  stoppage" in  transitu  for  the  remainder 
of  the  price ;  Newhall  v.  Vargas.  Nor  will  this  power  be  affected  by  his 
receipt  and  negotiation  of  bills  of  exchange  for  the  whole  amount  of  the 
price,  although  the  period  of  maturity  of  the  bills  has  not  yet  arrived ;  Bell 
v.  Moss,  5  Wharton,.  189;  Newhall  v.  Vargas.  In  order  to  destroy  this 
right  as  between  vendor  and  vendee,  there  must  be  full  payment,  or  final 
delivery  of  the  whole  of  the  goods.  If  part  only  be  delivered,  the  right 
will  survive  as  to  the  rest ;  Tanner  v.  Scovell,  14  M.  &  W.  28 ;  Buckley  v. 
Furniss,  10  Wend.  137 ;  17  Id.  504. 

But  although  an  actual  possession  of  part,  will  not  establish,  it 
will  not  preclude  an  accompanying  constructive  delivery  and  possession  of 
the  whole.  Jones  v.  Jones,  8  "M.  &  W.  431 ;  Slubey  v.  Ileyward,  2  H. 
Blackstone,  204 ;  Hammond  v.  Anderson,  4  Bos.  &  Pul.  09.  And  on  the 
other  hand,  a  valid  stoppage  in  transitu  of  part  of  the  goods  forwarded  under 
an  entire  contract,  will  not  abrogate  the  effect  of  an  actual  or  constructive 
possession  acquired  by  the  consignee  of  the  residue ;  Outhwaite  v.  Weut- 
worth,  10  M.  &  W.  436.  451. 


762  smith's   leading    cases. 

It  was  lickl  in  Dodsou  v.  Wentwortli,  4  M.  &  Gr.  1080,  that  tlie  vendor 
had  no  right  to  resume  possession  of  flax,  which  he  had  despatched  by  a 
vessel,  whence  it  had  been  transferred  to  the  boat  of  a  canal  company,  and 
finally  deposited  in  the  warehouse  of  another  company,  for  the  purpose  of 
safe  keeping ;  it  being  shown,  that  the  purchaser  was  in  the  habit  of  having 
goods  seat  to  him,  conveyed  from  the  place  of  such  deposit,  at  his  own 
charge,  to  his  place  of  residence.  The  case  was  rested  on  the  ground,  that 
the  final  delivery  contemplated  by  the  parties  had  been  attained,  and  that 
the  goods  had  in  effect  come  to  the  hands  of  the  person,  by  whom  they  had 
been  purchased.  The  same  rule  may  also  prevail,  where  the  goods  are  still 
in  the  custody  of  the  carrier  by  whom  they  have  been  forwarded,  if  it  dis- 
tinctly appear,  that  he  has  expressly,  or  by  implication,  agreed  to  hold  them 
as  agent  for  the  vendee,  and  not  on  behalf  of  the  vendor,  for  the  purposes 
of  the  transitus.  In  Wentworth  v.  Outhwaite,  10  M.  &  W.  435,  this  was 
held  to  be  established  by  evidence,  that  it  was  the  custom  of  the  carriers, 
upon  the  arrival  of  the  goods  at  a  town  near  the  residence  of  the  purchaser, 
to  store  them  for  safe  keeping  in  their  warehouse,  until  he  took  them  away 
in  his  carts,  and  that  the  goods  in  question,  were  warehoused  under  these 
circumstances,  at  the  time  when  the  stoppage  was  effected.  So,  where  the 
goods  were  brought  by  the  carrier  to  the  town  where  the  vendee  resided, 
and  deposited  on  the  wharf  until  he  should  be  ready  to  send  for  them,  they 
were  held  to  be  constructively  in  his  possession,  and  beyond  the  reach  of  a 
stoppage  in  transitu;  Sawyer  v.  Joslin,  20  Vermont,  172. 

The  general  rule,  however,  undoubtedly  is,  that  the  transitus  will  not  be 
considered  at  an  end,  so  long  as  any  thing  remains  to  be  done,  to  put  the 
goods  finally  and  actually  in  the  control,  or  at  the  disposition  of  the  vendee. 
Thus,  it  was  held  in  Hitchcock  v.  Cowell,  20  Wendell,  167;  23  id.  611, 
the  deposit  of  the  goods  in  a  warehouse  at  the  end  of  a  line  of  canal, 
along  which  the  carrier  had  agreed  to  transport  them,  but  at  the  distance  of 
thirty  miles  from  the  vendee's  residence,  which  was  their  final  destination, 
for  the  purpose  of  safe  keeping,  until  he  should  send  for  them,  was  not 
such  a  termination  of  the  transitus,  as  would  defeat  the  vendor's  right 
of  reclamation.  Nor  will  the  transitus  be  at  an  end,  even  when  the  goods 
have  reached  their  place  of  destination,  if  they  still  remain  in  the  actual  or 
constructive  possession  of  the  vendor,  nor  unless  they  are  actually  or  con- 
structively in  that  of  the  vendee.  The  arrival  of  the  goods,  and  the  deli- 
very of  part,  under  an  order  for  the  delivery  of  the  whole,  will  not  pre- 
clude the  right  to  stop  the  residue;  Tanner  v.  Scovell,  14  M.  &  W.  28. 
And  it  would  appear,  that  where  an  insolvent  vendee  relies  on  a  constructive 
possession  as  against  the  vendor,  he  must  show  that  he  was  entitled  to  imme- 
diate and  actual  possession.  Thus,  where  the  goods  were  entered  in  the 
wharfinger's  books,  at  the  place  of  destination,  in  the  name  of  the  vendee, 
but  with  instructions  not  to  deliver  them  until  the  freight  was  paid,  the 
transitus  was  held  to  continue  in  favour  of  the  vendor.  And  in  Donath  v. 
Eromhead,  7  Barr,  307,  the  vendor  was  allowed  to  stop  goods  which  had  not 
only  been  landed  at  the  port  of  ultimate  destination,  but  entered  in  the  name 
of  the  vendee  at  the  custom-house,  on  the  ground  that  as  he  had  failed  to 
comply  with  the  provisions  of  the  revenue  laws,  the  goods  were  not  subject 
to  his  control,  and  neither  actually  nor  constructively  in-  his  possession. 


LICKBARROW    V.     MASON.  763 

The  law  was  held  the  same  way  by  the  Court  of  Errors ;  overruling  the 
Supreme  Court,  in  a  case  where  the  goods  had  been  taken  to  the  custom 
house  and  entered  in  the  name  of  the  vendee,  in  consequence  of  his  not 
paying  the  duties ;  Mottram  v.  Heyer,  1  Denio,  483  ;  5  id.  663.  It  was 
said,  that  the  decision  went  on  the  ground,  that  the  goods  were  not  at  the 
disposition  of  the  vendee,  and  that  the  case  would  have  been  different,  had 
they  been  deposited  in  a  government  warehouse,  under  the  system  which 
prevails  in  England,  and  has  recently  been  introduced  into  this  country. 

The  distinction  between  actual  and  constructive  possession,  and  the  ques- 
tion when  possession  should  be  held  to  exist  constructively,  were  much  con- 
sidered in  Whitehead  v.  Anderson,  9  M.  &  W.  518.  In  that  case,  the 
agent  of  the  assignees  of  a  bankrupt  consignee,  went  on  board  the  vessel, 
and  stated  that  he  came  to  take  possession,  of  the  cargo,  which  he  saw  and 
touched.  The  captain  promised  to  deliver  it  to  him,  as  soon  as  he  was 
paid  the  freight  and  other  charges  due  for  the  voyjige.  Before  this  was 
accomplished,  a  person  acting  as  agent  for  the  vendors,  came  on  board  and 
delivered  a  notice  of  stoppage  in  transitu  to  the  mate,,  and  thus  brought  up 
the  question,  whether  a  previous  possession  had  been  taken  for  the  assignees. 
The  judgment  of  the  court  was  delivered  by  Parke,  Baron,  who  held  the 
following  language  :  "  The  law  is  clearly  settled,  that  the  unpaid  vendor  has  a 
right  to  retake  the  goods  before  they  have  arrived  at  the  destination  originally 
contemplated  by  the  purchaser,  unless  in  the  meantime  they  have  come  to 
the  actual  or  constructive  possession  of  the  vendee.  If  the  vendee  take  them 
out  of  the  possession  of  the  carrier  into  his  own  before  their  arrival,  with  or 
without  the  consent  of  the  carrier,  there  seems  to  be  no  doubt,  that  the 
transit  would  be  at  an  end :  though,  in  the  case  of  the  absence  of  the  car- 
rier's consent,  it  may  be  a  wrong  to  him,  for  which  he  would  have  a  right 
of  action.  This  is  a  case  of  actual  possession,  which  certainly  did  not  occur 
in  the  present  instance.  A  case  of  constructive  possession  is,  where  the  car- 
rier enters  expressly,  or  by  implication,  into  a  new  agreement,  distinct  from 
the  original  contract  for  carriage,  to  hold  the  goods  for  the  consignee  as  his 
agent,  not  for  the  purpose  of  expediting  them  to  the  place  of  original  desti- 
nation, pursuant  to  that  contract,  but  in  a  new  character,  for  the  purpose 
of  custody  on  his  account,  and  subject  to  some  new  or  further  order  to  be 
given  to  him. 

('  It  appears  to  us  to  be  very  doubtful,  whether  an  act  of  marking  or  taking 
samples,  or  the  like,  without  any  removal  from  the  possession  of  the  carrier, 
so  as  though  done  with  the  intention  to  take  possession,  would  amount  to  a 
constructive  possession,  unless  accompanied  with  such  circumstances  as  to 
denote  that  the  carrier  was  intended  to  keep,  and  assented  to  keep,  the 
goods  in  the  nature  of  an  agent  for  custody.  In  the  case  of  Foster  v. 
Frampton,  6  B.  &  C.  107  ;  9  D.  &  R.  108,  it  is  clear  that  there  were  such 
circumstances ;  whether  in  that  of  Ellis  v.  Hunt,  7  T.  R.  46,  is  doubtful ; 
but  it  is  unnecessary  to  determine  this  point,  as  there  is  no  finding  in  this 
case  even  of  any  act  done  to  the  timber  tvith  intent  to  take  2Wi<sesswn.. 
It  is  said,  indeed,  that  the  agent  of  the  assignees  touched  the  timber,  but 
whether  by  accident  or  design  is  not  stated.  There  being  then  no  such 
act  of  ownership,  it  seems  to  us  that  unless,  by  contract  with  the  captain, 
express  or  implied,  the  relation  in  which  he  stood  before,  as  a  mere  instru- 
ment of  conveyance  to  an  appointed  place  of  destination,  was  altered,  and 


764  smith's   leading   oases. 

he  became  the  agent  of  the  consignee  for  a  new  purpose,  there  was  no  con- 
structive possession  on  the  part  of  the  vendee. 

«  There  is  no  proof  of  any  such  contract.  A  promise  by  the  captain  to  the 
agent  of  the  assignees  is  stated,  but  it  is  no  more  than  a  promise,  without  a 
new  consideration,  to  fulfil  the  original  contract,  and  deliver  in  due  course 
to  the  consignee,  on  payment  of  freight,  which  leaves  the  captain  in  the 
same  situation  as  before;  after  the  agreement  he  remained  a  mere  agent  for 
expediting  the  cargo  to  its  original  destination. 

"  We  therefore  think  that  the  transaction  on  the  8th  August  did  not 
amount  to  a  constructive  possession  by  the  vendees,  and  therefore  the 
defendants  are  entitled  to  our  judgment." 

The  better  law  would,  therefore  seem  to  be,  that  whether  that  final  deli- 
very has  been  attained  which  determines  the  right  of  stoppage  in  transitu, 
is  to  be  decided  in  each  case,  by  examining  whether  the  parties  contemplated 
any  farther,  and  more  absolute,  reduction  to  possession  on  the  part  of  the 
vendee. 

Although  the  goods  be  delivered  to  an  agent  of  the  vendee,  or  to  a  person 
in  his  employ,  or  although  placed  on  board  his  ship,  or  in  his  warehouse, 
still,  if  this  be  done  with  the  view  of  forwarding  them  to  the  vendee  himself, 
and  the  direction  in  which  they  have  been  moving,  and  are  still  to  move, 
is  the  result  of  the  original  impulse  impressed  upon  them  by  the  vendor  at 
the  beginning  of  the  transitus,  the  power  of  the  latter  to  resume  posses- 
sion of  the  goods  will  still  continue.  And  all  bailments  made  in  pursu- 
ance of  the  original  design  of  the  vendor,  where  that  has  been  to  bring  the 
goods  more  absolutely  to  the  possession  of  the  vendee,  are  in  fact  quoad  the 
completion  of  the  transitus,  bailments  on  the  account  and  to  the  agents  of 
the  vendor;  and  this,  although  made  to  persons  in  the  employ  of  the  vendee, 
and  for  the  purpose  of  transportation  in  his  vessels.  The  transitus  will  there- 
fore, equally  continue,  whether  the  consignor  ship  the  goods  in  a  vessel 
belonging  to  himself,  or  in  one  owned  by  the  consignee,  and  commanded  by 
a  master  in  his  employ.  Stubbs  v.  Lund,  7  Mass.  453 ;  Ilsley  v.  Stubbs, 
9  id.  65;  Newhall  v.  Vargas,  13  Maine,  93;  15  id.  314;  Buckly  v.  Fur- 
niss,  15  Wendell,  137;  17  id.  504;  Stokes  v.  La  Keviere,  3  John.  436. 
Where,  however,  the  shipment  is  made,  not  subject  to  the  direction  of  the 
vendor,  nor  with  the  intent  of  effecting  a  final  delivery  of  the  goods  to  the 
vendee,  but  is  subject  to  his  order,  and  the  only  delivery  to  him  con- 
templated by  the  parties,  there  the  transitus  is  terminated  at  once  by  the 
mere  fact  of  the  shipment,  and  the  vendor  can  have  no  right  to  resume  posses- 
sion of  the  goods.  Rowley  v.  Bigelow,  12  Pick.  307 ;  Dixon  v.  Baldwin,  5 
East,  475;  Valpy  v.  Gibson,  4  C.  B.  837.  And  this  rule  may  apply  where 
the  position  of  the  goods  has  not  been  changed  since  the  sale,  as  where  the 
vendor  gives  an  order  on  the  keeper  of  the  warehouse  in  which  they  are 
stored,  for  their  immediate  delivery  to  the  vendee  or  his  agents.  Frazier  v. 
Hilliard,  2  Strobhart,  309. 

The  law  with  regard  to  what  sort  of  delivery,  will  amount  to  a  termination 
of  the  transitus,  would  seem  to  be  held  differently  in  Pennsylvania.  In 
Bolin  V.  Huffnagle,  1  Rawle,  9,  the  court  decided  that  this  does  not  so 
much  depend  on  what  was  the  ultimate  destination  of  the  goods,  or  the 
final  object  of  the  voyage,  as  on  the  nature  of  the  circumstances  attend- 
ant upon  the  particular  delivery   in  question,  and  the  character  of  the 


L  I  C  K  B  A  R  R  0  W    V.     MASON.  765 

person  to  wliom  it  is  made.  A  delivery,  for  any  object  whatever,  to  the 
possession  of  an  exclusive  agent  of  the  vendee,  was  said  to  be  necessarily 
a  final  delivery.  And  it  was  held  under  the  influence  of  this  principle, 
that  a  shipment  of  goods  made  by  the  plaintiffs  at  Malaga,  on  board  a 
vessel  belonging  to  the  defendants,  and  commanded  by  a  master  in  their 
employ,  although  for  the  purpose  of  transportation  to  their  place  of  resi- 
dence, and  an  actual  delivery  to  them,  determined  the  transitus,  and  divested 
the  right  of  stoppage. 

The  earlier  cases  on  the  subject  of  stoppage  in  transitu,  seem  to  have  re- 
quired that  manual  possession  should  be  taken  of  the  goods,  by  the  party 
acting  on  behalf  of  the  consignor.  A  notice  to  the  carrier  in  possession  of 
the  goods,  whether  actually  in  own  person  or  constructively  through  his 
agents,  was  subsequently  held  to  be  sufficient.  Lett  v.  Cowley,  1  Taunton, 
666,  169.  But  the  further  distinction  w^as  taken  in  Whitehead  v.  Anderson, 
that  a  notice  to  the  principal,  will  not  operate  as  a  stoppage  of  goods  in  the 
hands  of  his  agent,  unless  the  circumstances  are  such  that  it  can  be  com- 
municated to  the  agent,  before  the  termination  of  the  transitus.  Hence,  an 
order  to  the  owners,  not  to  deliver  the  cargo  of  a  vessel  at  sea,  will  be 
insufficient  if  the  goods  reach  the  vendee  before  it  can  be  made  known  to 
the  master.  In  Bell  v.  Moss,  5  Wharton,  189,  this  difficulty  was  ingeni- 
ously obviated,  by  addressing  the  notice  while  the  vessel  was  still  at  sea, 
to  the  assignees  of  the  consignee,  who  had  become  insolvent,  which  was 
held  to  preclude  them  from  taking  possession  of  the  goods  after  their 
arrival.  It  could  not  be  urged,  under  these  circumstances,  that  the  parties 
to  whom  the  notice  was  given,  were  unable  to  give  it  effect,  and  the  case 
was  decided  on  the  ground  that  any  notorious  act  of  reclamation  by  the 
vendor,  addressed  to  the  parties  in  interest,  was  sufficient.  But  in  Mottram 
V.  Heyer,  the  point  was  decided  the  other  way,  and  notice  to  the  carrier 
treated  as  essential  to  a  valid  stoppage  in  transitu. 

Any  agent  of  the  vendor  who  has  power  to  act  for  him,  either  generally 
or  for  the  purposes  of  the  consignment  in  question,  may  stop  in  transitu, 
without  an  authority  especially  directed  to  that  end,  or  empowering  him  to 
adopt  that  particular  measure.  Bell  v.  Moss,  5  Wharton,  189  ;  Newhall 
V.  Vargas;  Whitehead  v.  Anderson,  9  M.  &  W.  But  a  stoppage  cannot 
be  made  by  a  stranger  absolutely  without  authority,  nor,  if  he  makes  it, 
can  his  act  be  rendered  valid  by  a  ratification  on  the  part  of  the  vendor  or 
his  agents,  subsequent  to  the  period  at  which  the  goods  reach  the  hands  of 
the  vendee,  for  although,  in  general,  a  subsequent  ratification  is  equivalent 
to  a  prior  command,  yet  this  does  not  hold  good  where  the  right  by  virtue 
of  which  alone,  ratification  is  possible,  terminates  before  it  is  given.  Bird 
V.  Brown,  4  Exchequer,  786.  And  the  general  principle  that  relation,  like 
other  legal  fictions,  shall  not  operate  to  divest  vested  rights,  or  render  rightful 
acts  wrongful,  applies  emphatically  when  it  is  sought  to  defeat  the  title  of  a 
vendee,  on  the  ground  of  the  subsequent  approval  of  an  act  which  was 
wholly  unauthorized  when  originally  performed.  Buron  v.  Denman,  2  Ex- 
chequer, 166;  Wood  V.  M'Kain,  7  Alabama,  SCO.  But  a  ratification  by 
the  vendor,  before  the  goods  reach  the  hands  of  the  vendee,  would  no  doubt 
give  validity  to  a  prior  stoppage,  although  made  by  a  stranger  wholly  without 
authority. 

We  have  already  seen,  (hat  while  the  goods   remain  unpaid  for,  and  the 


766  smith's  leading  cases. 

transitus  continues,  tlie  right  of  the  vendor  to  stop  them,  upon  the  occur- 
rence of  insolvency  in  the  vendee,  may  be  defeated  by  a  bona  fide  sale,  for 
a  valuable  consideration,  accompanied  with  a  transfer  of  the  bill  of  lading. 
All  these  requisites  must,  however,  concur.  Stanton  v.  Eagei",  16  Pickering, 
473.  An  assignment  for  the  benefit  of  creditors,  or  a  seizure  by  an  execu- 
tion creditor,  or  under  process  of  foreign  attachment  against  the  consignee, 
will  leave  the  goods  as  much  subject  to  the  exercise  of  the  right,  as  they 
were  previously.  Idem.  ibid.  Buckley  v.  Furniss,  15  Wend.  1.37 ;  17  id. 
504.  Naylor  v.  Denuie,  8  Pick.  198.  The  fact  of  an  assignment  for  the 
benefit  of  creditors,  is  of  itself,  notice  to  the  assignee  of  the  insolvency  of  the 
consignee,  and  of  the  consequent  liability  of  the  goods  to  seizure  by  the  con- 
signor. Yet  it  would  seem,  that  if  an  assignee,  for  the  benefit  of  creditors, 
take  actual  possession  of  the  goods  before  they  are  reclaimed  by  the  vendor, 
the  right  of  the  latter  will  be  as  much  defeated,  as  if  they  had  come  to  the 
hands  of  the  assignor  himself.  Jones  v.  Jones,  8  M.  &  W.  431.  And 
the  Court  would  seem  to  have  thought  that,  if  the  deed  of  assignment  con- 
tained a  release  from  the  creditors,  and  was  accompanied  by  an  indorse- 
ment of  the  bill  of  lading,  it  would  be  considered  as  a  transfer  for  a  valuable 
consideration,  and  preclude  any  subsequent  stoppage  in  transitu.  In  this 
case,  however,  the  assignee,  by  whom  the  possession  was  taken,  was  him- 
self one  of  the  creditors  for  whose  benefit  the  deed  of  assignment  was  made. 
Nor  will  a  sale  for  a  valuable  consideration,  unaccompanied  by  a  transfer  of 
a  bill  of  lading,  although  suflBicient  to  pass  the  property  in  the  goods,  (Stan- 
ton V.  Eager,  16  Pick.  473 ;  Gardner  v.  Rowland,  2  Pick.  899,)  afi'ect  the 
power  of  the  consignor,  to  stop  them  in  transitu.  Ilsley  v.  Stubbs,  9  Mass. 
65  ;  Stanton  v.  Eager;  Craven  v.  Rider,  6  Taunton,  433.  The  absence  of 
the  bill  of  lading,  must  be  considered  as  constructive  notice,  that  the  con- 
signee has  not  paid  for  the  goods,  and  that  the  consignor  has  not  waived  his 
right  of  resuming  his  lien  for  the  purchase-money.  Craven  v.  Ryder;  Jen- 
kyns  v.  Usborne,  7  M.  &  Q.  678. 

The  stoppage  of  the  goods  does  not  rescind  the  contract  of  sale.  It  merely 
replaces  the  consignor  in  the  position  in  which  he  was  before  the  transitus 
began,  and  enables  him  to  enforce  the  right  of  lien,  which  arises  in  every 
vendor,  on  the  non-payment  of  the  purchase-money,  and  continues  until  the 
goods  come  to  the  actual  possession  of  the  vendee  or  his  agents.  Newhall 
V.  Vargas,  13  Maine,  93;  Jordan  v.  James,  5  Hammond,  98,  15  id.  314; 
Wcntworth  v.  Outhwaite,  10  M.  &  W.  436,  452.  When  part  of  the 
purchase-money  has  been  paid,  a  tender  of  re-payment  of  such  part  to 
the  consignee,  is  consequently,  not  requisite  to  the  validity  of  the  stoppage ; 
13  Maine,  93.  On  the  other  hand,  the  consignor  becomes  liable  to  pay  the 
freight  on  the  voyage;  for  the  effect  of  the  stoppage  is,  to  revest  his  posses- 
sion, ab  initio,  by  relation  of  law  ;  and  moreover,  the  voyage  becomes  in  fact 
one  performed  for  his  benefit.  This  liability  will  accrue,  though  the  goods 
have  been  transported  on  board  a  ship  belonging  to  the  consignee,  so  that 
no  freight  whatever  would  be  due,  independently  of  the  stoppage.  Newhall 
v.  Vargas,  15  Maine,  314. 

As  the  contract  of  sale  is  not  rescinded  by  the  stoppage,  the  party  who 
has  made  it  may  sue  for  and  recover  the  price  due  on  the  original  contract, 
after  a  new  tender  of  the  goods  stopped.  And  the  necessity  for  a  tender 
may  be  waived,  as  in  other  cases  of  sale,  by  the  conduct  of  the  purchasers. 


L  I  C  K  B  A  11  R  0  W     V.     MASON.  767 

15  Maine,  314.  The  recovery,  moreover,  may  be  for  the  whole  value  of 
the  goods  originally  shipped,  although  part  of  them  may  have  perished  dur- 
ing the  voyage,  before  the  stoppage  was  eifected,  for  the  property  passes  to 
the  vendee,  and  the  risk  becomes  his,  from  the  moment  the  contract  of  sale 
is  complete,  although  the  vendor  should  resume  or  retain  possession  of  the 
goods,  by  virtue  of  his  lien  for  their  price.     Idem.  ibid. 

As  a  vendor  who  has  retained  possession  of  goods  under  his  lien  for  their 
price,  may  sell  them  when  of  a  perishable  nature,  to  prevent  a  total  loss, 
(Sands  V.  Taylor,  5  Johnson,  411,)  so  a  vendor  who  resumes  possession  of 
goods  under  a  stoppage  in  transitu,  may,  perhaps,  exercise  the  same  power, 
without  losing  the  right  to  recover  against  the  vendee,  by  a  subsequent 
suit,  the  difference  between  the  sum  produced  by  the  sale,  and  the  price  fixed 
by  the  original  contract. 

It  may  be  well  to  observe,  in  taking  leave  of  the  point  decided  in  Lick- 
barrow  V.  Mason,  that  the  decisions  will  perhaps  finally  determine,  that 
where  a  bona  fide  sale,  for  value,  of  a  shipment  which  has  not  yet  arrived, 
is  made  by  the  consignee,  and  executed  by  any  constructive  delivciy  of  pos- 
session, the  defeasance  of  the  right  of  stoppage  does  not  necessarili/  so  much 
depend  upon  an  accompanying  indorsement  of  the  bill  of  lading,  by  the 
consignee,  to  the  purchaser,  as  upon  the  question  whether  there  has  been  a 
past  absolute  indorsement  of  such  bill,  by  the  consignor  to  the  consignee. 
It  is  shown  by  the  case  of  Gardner  v.  Howlaud,  that  ip  the  absence  of  the 
bill  of  lading,  any  other  sufficient  constructive  delivery  will  execute  the 
sale  and  transfer  all  the  rights  of  the  consignee  to  the  purchaser,  and  it 
would  therefore  appear,  that  where  the  consignor  transfers  the  bill  of  lading 
to  the  consignee,  and  thus  gives  him  full  power  to  pass  an  indefeasible  title, 
a  subsequent  sale  under  this  power  ought  to  be  valid  as  against  the  per- 
son who  gave  it,  even  if  unattended  by  an  endorsement  of  the  bill ;  at  least 
in  those  cases,  where  the  circumstances  are  such  as  to  excuse  or  explain  the 
failure  to  make  it.  In  Jenkyns  v.  Usborne,  7  M.  &  Gr.  678,  where  the 
owner  of  goods  sold  them  while  yet  at  sea,  without  endorsing  the  bill,  he 
was  held  entitled  to  stop  in  transitu,  as  against  a  subsequent  purchaser  from 
the  vendee.  But  this  decision  is  evidently  not  in  point  in  any  case,  where 
the  vendor  has  parted  with  the  bill  to  the  vendee,  although  the  latter  may 
have  omitted  to  transfer  it  subsequently. 


7G8  smith's    leading   cases. 

[^37]  ===MILLS    V.    AURIOL. 

TRIN.— :)0  G.  3.  in  G.  P.  &  B.  R. 
[reported    1  n.  BLACK.  433;    AND  4  T.  R.    94.] 

The  bunkrnptcy  of  the  defendant  cannot  bo  pleaded  inbarof  an  action  of  covenant 

for  rent. 

This  was  an  action  of  covenant  for  non-payment  of  rent  payable  quarterly. 
The  covenant  on  which  the  breach  was  assigned,  after  the  usual  words, 
'<  yielding  and  paying,  &c.,"  was  as  follows: — <' And  the  said  Peter  James 
(the  defendant)  for  himself,  his  heirs,  executors,  administrators,  and  as.signs, 
did  thereby  covenant,  promise,  and  agree  (amongst  other  things)  to  and  with 
the  said  Benjamin  (the  plaintiff),  his  heirs  and  assigns,  that  he  the  said 
Peter  James,  his  heirs,/executors,  administrators,  or  assigns,  should  and  would, 
during  all  the  rest  of  the  said  term,  thereby  demised,  well  and  truly  pay,  or 
cause  to  be  paid,  unto  the  said  Benjamin,  his  heirs  and  assigns,  the  said  clear 
yearly  rent  of  110?.,  in  manner  and  form  aforesaid,  according  to  the  true 
intent  and  meaning  of  the  said  indenture."  The  breach  was  the  non-pay- 
ment of  27/.  10s,,  for  a  quarter  ending  December  25,  1789. 

The  defendant  pleaded,  1st,  Non  est  factum.  2nd,  Biens  in  arrcre.  3rd, 
"That  after  the  making  of  the  said  indenture  in  the  said  declaration  men- 
tioned, and  before  the  suing  out  of  the  original  writ  of  the  said  Benjamin 
against  the  said  Peter  James,  to  wit,  on  the  first  day  of  January,  in  the 
year  of  our  Lord  1789,  and  from  thence  until  the  day  of  suing  out  the  com- 
mission of  bankruptcy  herein  mentioned  against  the  said  Peter  James,  he  the 
said  Peter  James  was  a  trader  within  the  intent  and  meaning  of  the  several 
statutes  made  and  then  in  force  against  bankrupts;  that  is  to  say,  a  mer- 
chant, dealer  and  chapman,  to  wit,  at  London  aforesaid,  in  the  parish  and 
ward  aforesaid,  and  during  all  that  time  used  and  exercised  the  trade  and 
business  of  a  merchant,  in  buying  and  selling  divers  silks,  and  other  goods, 
wares,  and  merchandizes,  and  receiving  consignments  of  silks,  and  other 
goods,  and  selling  the  same  on  commission,  for  his  correspondents  and  cus- 
tomers, for  profit  and  gain,  and  thereby  sought  and  endeavoured  to  get  his 
living  as  other  persons  of  the  same  trade  usually  do ;  and  the  said  Peter 
James,  so  being  such  trader  as  aforesaid,  within  the  intent  and  meaning  of 
the  said  several  statutes  made  and  then  in  force  concerning  bankrupts,  and 
so  seeking  his  living  by  way  of  buying  and  selling  as  aforesaid,  he  the  said 
Peter  James  afterwards,  and  before  any  of  the  rent  or  money  in  the  said 
declaration  mentioned  became  due  and  payable,  to  wit,  on  the  Sth  day  of 
June,  in  the  year  aforesaid,  at  London  aforesaid,  in  the  parish  and  ward 
aforesaid,  became  and  was  indebted  to  one  George  Tickner  Hardy,  gentle- 
man, then  being  a  subject  of  this  realm,  in  100/.  of  lawful  money  of  Great 


MILLS   V.    AURIOL.  769 

Britain,  for  so  much  money,  before  that  time,  paid,  laid  out,  and  expended 
by  the  said  Gieorge  Tickncr  Hardy,  to  and  for  the  use  of  the  said  Peter 
James,  at  his  special  instance  and  request ;  and  the  said  Peter  James  being 
so  indebted  as  aforesaid,  and  being  a  subject  of  this  realm,  and  so  seeking 
his  living  by  way  of  buying  and  selling  as  aforesaid,  he  the  said  Peter  James, 
afterwards,  to  wit,  on  the  same  day  and  year  last  aforesaid,  at  London  afore- 
said, in  the  parish  and  ward  aforesaid,  (he  the  said  George  Tickner  Hardy 
so  being  a  creditor  of  the  said  Peter  James,  and  being  then  wholly  unsatis- 
fied his  debt,)  manifestly  became  a  bankrupt,  within  the  intent  and  meaning 
of  the  several  statutes  made  and  then  in  force  against  bankrupts  ;  and  the 
said  Peter  James  so  being  and  remaining  a  bankrupt  as  aforesaid,  he  the 
said  George  Tickner  Hardy,  as  well  for  himself  as  for  all  other  creditors  of 
the  said  Peter  James,  afterwards,  to  wit,  on  the  9th  day  of  June,  in  the  year 
aforesaid,  at  Westminster  in  the  county  of  Middlesex,  to  wit,  at  London 
aforesaid,  in  the  parish  and  ward  aforesaid,  exhibited  his  certain  petition  in 
writing  to  the  Right  Honourable  Edward  Lord  Thurlow,  then  Lord  High 
Chancellor  of  Great  Britain,  and  thereby  petitioned  the  said  Lord  Chancel- 
lor, to  grant  to  the  said  George  Tickner  Hardy  *his  majesty's  com-  r^jqoT 
mission,  to  be  directed  to  such  and  so  many  persons  as  he  should  L  -^ 
think  fit  to  give  his  authority  of  and  concerning  the  said  bankrupt,  and  to 
all  other  intents  and  purposes,  according  to  the  provisions  of  the  statutes 
made  and  then  in  force  concerning  bankrupts,  as  by  the  said  petition  remain- 
ing in  the  Court  of  Chancery  of  our  lord  the  now  king  at  Westminster  afore- 
said more  fully  appears ;  and  the  said  Peter  James  further  saith,  that  upon 
the  said  petition  of  the  said  George  Tickner  Hardy  so  exhibited  as  aforesaid, 
on  behalf  of  himself  and  all  other  the  then  creditors  of  the  said  Peter  James, 
according  to  the  form  of  the  statutes  in  such  case  made  and  provided,  for 
giving  them  relief  on  that  behalf,  afterwards  and  before  the  said  sum  of 
money  in  the  said  declaration  mentioned  or  any  part  thereof  became  due, 
and  before  the  said  supposed  breach  of  covenant,  to  wit,  on  the  9th  day  of 
June  in  the  year  aforesaid,  at  Westminster  aforesaid,  to  wit,  at  London 
aforesaid,  in  the  parish  and  ward  aforesaid,  a  certain  commission  of  our 
lord  the  now  king,  founded  upon  the  statutes  made  and  then  in  force  con- 
cerning bankrupts,  in  due  form  of  law  issued,  under  the  great  seal  of  Great 
Britain,  bearing  date  the  same  day  and  year  last  aforesaid,  directed  to 
Michael  Dodson,  Thomas  Plumer,  Edward  Finch  Hatton,  Robert  Comyn, 
and  Charles  Proby,  Esquires,  and  was  then  and  there  to  them  directed, 
by  which  said  commission,  our  said  lord  the  now  king  gave  full  power  and 
authority  to  them  the  said  Michael  Dodsou,  Thomas  Plumer,  Edward  Finch 
Hatton,  Robert  Comyn,  and  Charles  Proby,  four  or  three  of  them,  to  pro- 
ceed, according  to  the  said  statutes,  and  all  other  statutes  then  in  force  con- 
cerning bankrupts,  not  only  concerning  the  aforesaid  bankrupt,  his  body, 
lands,  tenements,  both  freehold  and  copyhold,  goods,  debts,  and  all  other 
matters  whatsoever,  but  also  concerning  all  other  persons,  who  by  conceal- 
ment, claim,  or  otherwise,  should  offend  touching  or  concerning  the  pre- 
mises, or  any  part  thereof,  against  the  true  intent  and  purport  of  the  said 
statutes,  and  to  do  and  execute  all  and  every  thing  and  things  whatsoever, 
as  well  for  and  towards  satisfaction  and  payment  of  the  creditors  of  the  said 
Peter  James,  as  towards  and  for  all  other  intents  and  purposes  whatsoever, 
according  to  the  order  and  provisions  of  the  said  statutes,  as  by  the  said 
Vol.  I.— 49 


770  smith's    leading    cases. 

r*d.RQl  conniiissiou  (umoiig.st  other  things)  more  *fully  appears  :  by  virtue 
L  J  of  which  said  commission,  and  by  force  of  the  statutes  aforesaid,  the 
said  Michael  Dodson,  Edward  Finch  liatton,  and  llobert  Comyn,  three  of 
the  commissioners  named  in  the  said  commission,  afterwards,  to  wit,  on  the 
11th  day  of  June,  in  the  year  aforesaid,  to  wit,  at  Loudon  aforesaid,  in  the 
parish  and  ward  aforesaid,  having  taken  upon  themselves  the  burthen  of  the 
said  commission,  then  and  there  duly  adjudged  and  declared  the  said  Peter 
James  to  have  been,  and  become  on  the  day  of  the  issuing  of  the  said  cora- 
missiou,  and  then  to  be  a  bankrupt,  within  the  true  intent  and  meaning  of 
ihe  said  statutes,  some  or  one  of  them  :  and  the  said  Peter  James  further 
says,  that  afterwards,  to  wit,  on  the  '26th  day  of  June  in  the  year  aforesaid 
at  London  aforesaid,  (the  said  Peter  James  then  remaining  and  continuing  a 
bankrupt  as  aforesaid,)  they  the  said  Michael  Dodson,  Edward  Finch  Hat- 
ton,  and  llobert  Comyn,  in  due  manner  and  according  to  the  form  of  the 
statute  in  such  case  made  and  provided,  by  an  indentui'e  then  and  there  duly 
made,  and  bearing  date  the  same  day  and  year  last  aforesaid,  between  the 
said  Michael  Dodson,  Edward  Finch  Hatton,  and  Robert  Comyn,  of 
the  one  part,  and  llobert  Mendham  of  Walbrook,  London,  merchant, 
G-eorge  Marsh  of  Broad  Street,  London,  silk-broker,  and  the  said  George 
Tickner  Hardy  of  the  other  part,  then  and  there  duly  bargained,  dis- 
posed, assigned,  and  set  over,  amongst  other  things,  the  said  indentures 
of  lease  in  the  said  declaration  mentioned,  and  all  the  estate  and  interest 
of  the  said  Peter  James,  of,  in,  and  to  the  same,  and  of,  in,  and  to  the 
premises  thereby  demised,  to  the  said  llobert  Mendham,  George  Marsh, 
and  George  Tickner  Hardy,  (the  said  llobert  Mendham,  George  Marsh, 
and  George  Tickner  Hardy,  before  the  said  assignment  so  made  to 
them  as  aforesaid,  having  been  duly  chosen  assignees  of  the  debts,  credits, 
goods  and  chattels,  estate  and  effects  of  the  said  Peter  James  the  bankrupt, 
according  to  the  form  of  the  statutes  in  such  case  made  and  provided,)  to 
hold  to  them  the  said  Robert  Mendham,  George  Marsh,  and  George  Tickner 
Hardy,  their  executors,  administrators,  and  assigns,  from  thenceforth  for 
the  residue  of  the  said  demised  term  then  to  come  and  unexpired;  by  virtue 
of  which  said  assignment,  all  the  estate,  interest,  and  term  of  years  then  to 
*j.im  come  and  unexpired,  property,  claim,  and  demand,  of  the  *said  Peter 
L  -  James,  of  and  in  the  said  indenture  of  lease,  and  of  and  in  the  pre- 
mises thereby  demised,  then  and  there  became,  and  was  vested  in  the  said 
Robert  Mendham,  George  Marsh,  and  George  Tickner  Hardy,  as  such  assig- 
nees, and  the  same  from  thence  hitherto  hath  been,  and  still  is  vested  iu 
them  the  said  Robert  Mendham,  George  Marsh,  and  George  Tickner  Hardy 
(the  said  commission  still  remaining  in  full  force  and  effect,  in  no  ways 
superseded,  cancelled,  or  set  aside,)  and  the  said  Robert  Mendham,  George 
Marsh,  and  George  Tickner  Hard}',  then  and  there,  to  tdf,  on  the  same  day 
and  year  last  aforesaid,  at  London  aforesaid,  became,  and  were  for  a  long 
time,  to  wit,  from  thence  hitherto  have  been  possessed  of  and  in  the  said 
demised  premises,  with  the  appurtenances,  and  this  the  said  Peter  James  is 
ready  to  verify,"  &c. 

To  this  plea  there  was  a  general  demurrer,  and  issue  joined  on  the  two 
first. 

The  demurrer  was  argued  in  E.istcr  Term  last  by  Bend,  Serjt.,  for  the 
plaintiff,  and  Le  Blanc,  Serjt.,  for  the  defendant;  and  in  this  term  by  Adair, 


MILLS    V.     AURIOL.  771 

Serjt.,  for  the  plaintiff,  and  Laicrence,  Serjt.,  for  the  defendant.     The  fullow- 
ing  was  the  substance  of  the  arguments  on  the  part  of  the  plaintiff: — 

The  matter  disclosed  in  the  third  plea  affords  no  answer  to  the  demand  of 
the  plaintiff,  because  the  covenant  on  which  the  action  is  brought  being 
express,  personally  bound  the  defendant,  and  was  not  done  away  by  the 
assignment  under  the  commission  of  bankrupt.  In  leases  there  are  two 
sorts  of  covenants,  by  which  tenants  are  liable  either  to  an  action  of  debt 
or  covenant ;  namely,  express  and  implied  covenants.  On  the  latter,  the 
lessee  is  liable  to  either  species  of  action,  unless  there  has  been  a  complete 
assignment  with  the  assent  of  the  lessor,  for  by  such  an  assignment  the 
right  of  action  of  the  lessor  is  certainly  divested.  Walker's  case,  3  Co.  22, 
a.,  where  the  lessee,  having  assigned  his  term  without  the  assent  of  the 
lessor,  was  still  holden  to  be  subject  to  debt  for  the  rent  in  arrear.  So  in 
Wadham  v.  Marlow,(a)  Lord  Mansfield  says  that  the  tenant  shall  not  by  his 

in)  Wadham  v.  Marlow,  B.  R.  Mich.  25  Geo.  .3. 

This  was  an  action  ot  debl(t)  for  rent  due  on  a  lease  which  was  expired.  The  defend- 
ant pleaded  :  1.  Non  est  factum.  2.  As  to  18/.  5s.  one  quarter's  rent,  that  he  btcarne  a 
banl\rn|)t,  and  tliat  the  said  snin  of  18/.  5s.  was  due  before  his  bankruptcy.  3.  As  to  the 
rc>iduc  oftiie  sum  demanded,  tiiat  it  became  due  after  the  bankruptcy.  On  the  first  plea 
issde  was  joined.  On  the  second  the  plaintiff  remitted  the  18/.  5s.  and  demurred  gene- 
rally to  tiie  third. 

ll  was  argued  in  support  of  the  demurrer,  that  where  there  is  an  assignment  by  tlie 
original  lessee,  if  the  Ics^^or  accepts  rent  of  the  assignee,  the  lessee  is  thereby  discharged, 
it  being  an  acceptance  of  the  *assignee  as  tenant.  The  lessor  may  either  resort  rjif^jii 
to  the  lessee  on  the  privity  of  contract,  or  the  assignee  on  the  privity  of  estate.  ^  ^ 
But  having  made  his  election  against  whom  to  proceed,  he  is  bound  by  it.  Walker's  case, 
3  Co.  22;  Devereux  v.  Barlow,  2  Saund.  181.  The  case  of  Coghill  v.  Freelove,  3  Mod. 
325,  goes  farther,  as  there  it  is  said,  that  privity  of  contract  with  the  testator  is  not  dis- 
charged by  his  death.  In  Cantrel  v.  Graham,  Barnes,  69,  the  Court  interposed  on  behalf 
of  liie  liberty  of  the  person.  That  is  like  the  case  of  a  certificated  bankrupt  having  by  a 
su!)scquent  promise  made  himself  liable  to  a  debt  contracted  before  his  bankruptcy,  where 
the  Court  have  permitted  a  common  appearance. 

As  to  the  general  question,  whether  the  plaintiff  can  recover  notwithstanding  the  assign- 
ment ?  the  bankru|)t  may  indeed  say,  that  he  has  parted  with  hia  whole  interest,  and  that 
it  is  hard  he  should  be  called  to  account  on  a  contract  previously  made.  But  if  there  be 
any  hardship,  il  is  for  the  legislature  to  interpose.  Bankruptcy  arises  from  the  act  of  the 
bnnkrupl  himself;  he  therefore  is  liable  as  much  as  any  other  lessee.  The  certificate  can 
discharge  from  no  debt  but  what  is  due  before  the  bankruptcy.  Aylett  v.  James,  C.  B. 
22  G.  3,  which  was  an  action  of  covenant ;  the  defendant  pleaded  his  discharge  under  an 
insolvent  act,  and  on  demurrer  judgment  was  given  for  the  plaintiff.  It  was  there  said, 
that  a  bankrupt  is  liable  tor  covenants  made  before  his  bankruptcy  ;  and  there  seems  to  be 
no  reason  why  he  should  not  also  be  liable  for  3.  debt  accruing  in  consequence  of  a  cove- 
nant made  before  it. 

For  the  defendant  it  was  contended,  that  debt  was  only  brought  on  the  reddendum  of 
the  lease,  Plowd.  132;  Co.  Litt.  142,  a.;  2  Black.  Com.  41.  It  is  payable  out  of  the 
land,  not  on  account  of  the  land.  The  moment  the  lessee  parts  with  the  possession,  the 
action  can  no  longer  be  maintained.  Notice  to  the  lessor  of  the  assignment  by  the  lessee 
is  sufficient  to  discharge  him.  There  is  a  great  difference  between  covenant  and  debt  on 
the  reddendum  ;  the  words  "yielding  and  paying"  create  a  covenant  to  pay,  but  only  on 
condition  that  the  lessee  shall  enjoy.  It  docs  not  hold  after  eviction  or  loss  of  possession. 
But  after  loss  of  possession  the  party  is  still  liable  on  an  express  covenant.  1  &'id.  417  ;  1 
Browiil.  20.  Rent  arises  on  a  contract  executory.  Suppose  the  bankrupt  had  entered  into 
a  contract  to  deliver  goods  at  a  future  day  ;  his  assignees  might  have  affirmed  or  disaffirm- 
ed the  contract.  All  his  personal  engagements  pass  to  them.  If  the  term  be  of  greater 
value  than  the  rent,  it  shall  be  presumed  that  the  assignees  have  accepted  it,  and  the  lessee 
shall  be  exonerated.  The  privily  of  contract  is  destroyed  by  the  assignment.  When  the 
lessee  is  deprived  of  the  land  without  remedy  over,  he  ceases  to  be  liable  for  the  rent.  So 
il  is  on  eviction,  entry,  and  expulsion.  Plowd.  71;  Noy,  75.  So  if  deprived  by  the  act 
of  God,     1  Roll.  Abr.  236.     But  here  the  defendant  is  deprived  by  the  act  of  law.     7  Viri. 

[t)  Cooke's  Bankrupt  Laws,  last  edit.  511. 


772  SMITHS      LEADING     CASES. 

own  act  destroy  the  tenancy  without  the  concurrence  of  the  landlord.  As 
lAOi  ^^^^  ^'^^  '^  *thus  with  regard  to  the  action  of  debt  on  an  implied 
L  *'-'  covenant,  so  also  it  is  with  respect  to  the  action  of  covenant  on  an 
implied  covenant,  in  which  the  general  rule  is,  lliat  without  the  assent  of 
the  lessor,  the  lessee  shall  not  discharge  himself  from  his  covenant  by  an 
assignment  of  the  term. 

Thus  the  law  stands  as  to  implied  covenants.  But  with  regard  to  an  ex- 
press covenant,  though  it  be  true  that  no  action  of  debt  will  lie  on  it  against 
the  lessee  after  an  assignment,  where  the  lessor  has  by  a  direct  act  (such  as 
the  acceptance  of  rent  from  the  assignee)  confirmed  the  assignment,  Cro. 
Jac.  334,  yet  it  is  equally  true,  that  on  an  express  covenant,  an  action 
of  covenant  will  lie  for  the  lessor  against  the  lessee,  notwithstanding  his 
acceptance  of  rent  from  the  assignee.  1  Sid.  402  ;  Cro.  Jac.  309  ;  Cro.  Car. 
188,  580;  Cas.  temp.  Hardwicke,  343  ;  and  in  Cro.  Jac.  522;  1  Sid.  447; 
the  distinction  between  express  and  implied  covenants  is  taken;  that  in  an 
express  covenant,  though  the  lessor  accept  rent  from  the  assignee,  yet  he 
may  have  an  action  of  covenant  against  the  lessee,  but  not  in  case  of  an  im- 
plied covenant,  which,  it  is  said,  is  cancelled  by  the  assignment. 

The  question  then  is,  whether,  in  the  present  case,  the  lease  and  all  the 
bankrupt's  interest  being  vested  in  the  assignees  under  the  commission,  he 
is  discharged  from  an  express  covenant  ?  Now  the  contrary  appears  from 
Thursby  v.  Plant,  I  Saund.  237.      The  assignees  of  a  bankrupt  are  like  any 

Abr.  84  ;  1  Alk.  67.  A  comuiission  of  bankruptcy  is  an  execution  in  the  first  instance, 
not  an  act  of  tlie  party.  Burr.  24:W,  Mayor  v.  Steward.  There  is  a  difference  between 
an  insolvent  person  and  a  bankrupt. 

Lord  Minsjield. — Two  points  were  argued  for  the  pluiniiffs.  Isf,  If  liierc  had  been  no 
bankruptcy  but  the  lessee  had  merely  assigned  lo  another,  he  would  still  remain  liable  in 
debt,  till  the  lessor  had  assented  to  the  assignment.  2nd.  Bankruptcy  being  an  act  done 
by  the  bankrupt  himself,  he  shall  remain  liable  like  any  other  lessee.  As  to  the  first  point, 
it  is  not  necessary  that  there  should  be  an  actual  acceptance  of  rent  by  the  lessor  in  order 
to  discharge  tlie  lessee  (rem  the  action  of  debt  on  the  reddendum  ;  but.  any  assent  is  suffi- 
cient. The  action  on  the  reddendum  is  founded,  not  merely  on  the  terms  of  the  demise, 
but  on  the  enjoyment  of  the  tenant.  In  Warren  v.  Conset,  2  Lord  Raym.  15U0,  it  was 
agreed  that  "levied  by  distress  and  sic  nil  debet"  was  a  good  plea  to  debt  for  rent  on  an 
indenture.  What  shall  be  deemed  an  enjoyment  by  the  tenant  hath  been  much  agitated  as 
a  question  of  law;  but  he  cannot  destroy  the  tenancy  without  tlie  assent  of  the  lessor.  On 
behalf  of  the  defendant  it  was  argued,  that  notice  to  the  lessor  is  a  sufficient  discharge  of 
the  lessee.  But  in  the  cases  in  Brownl.  and  Cro.  Jac.  there  was  an  express  acceptance, 
and  in  Sidcrfin,  though  the  case  is  short  and  confused,  it  must  be  so  understood.  In  2 
Saund,  181,  it  is  said  he  may  sue  either  assignee  or  lessee.  In  the  present  case  there  is 
neither  acceptance  of  rent  nor  assent;  and  it  there  were  nothing  but  notice,  we  are  all  of 
opinion  that  the  lessee  would  be  liable  to  the  action.  This  brings  me  to  the  second  point, 
on  which  there  are  only  two  cases  ;  for  that  of  Aylett  v.  James  does  not  apply.  Those 
cases  are,  IVIayor  v.  Steward  and  ("antrcl  v.  Graham.  The  first  was  determined  on  the 
ground  that  the  covenant  was  collateral ;  but  there  is  a  strong  though  obiter  dictum  of 
Yutes,  J  ,  that  it  would  be  hard  to  leave  the  lessee  liable  to  the  covenants,  when  the  act  of 
law  had  divested  him  of  the  emoluments  and  vested  them  in  his  creditors.  In  Cantrel  v. 
Graham,  the  Court  made  a  direct  determination  on  the  point.  We  have  a  fuller  note  of  it 
than  there  is  in  Barnes.  The  counsel  said  it  was  merely  an  effort  made  to  relieve  the 
defendant  on  account  of  the  hardship  of  the  case.  But  the  court  would  not  hive  discharged 
him  unless  they  had  been  satisfied  that  tlic  action  was  not  founded.  This  case  is  precisely 
in  point,  and  we  agree  with  the  d(,-terminai ion.  The  bnikrupt's  estate  is  vested  in  the 
assignees  by  act  of  parliament.  Every  man's  assent  shall  be  presumed  to  an  act  of  parlia- 
ment. It  was  agreed  that  if  a  man  be  divested  by  act  of  law  without  his  own  defiiult, 
he  is  discharged.  This  is  as  strong,  because,  though  it  was  his  own  act  originally  on 
which  an  assignment  was  founded,  yet  the  immediate  effect  produced  is  by  the  act  of  par- 
liiaient;  et  injure,  non  remola  sid  [Jioxima  sprclanliir 

Judgment  for  the  defendant. 


MILLS     V.     AURIOL.  773 

other  assignees  of  a  lease.  The  assignment  under  the  commission  is  no 
more  than  any  other  assignment  with  the  assent  of  the  lessor,  every  one  hav- 
ing virtually  given  his  assent  to  an  act  of  parliament.  Wadham  v.  Mar- 
low.  A  bankrupt,  though  divested  of  his  property,  is  still  liable  on  his 
express  covenants. 

The  protection  from  debts  which  is  given  to  bankrupts  is  on  condition  of 
a  complete  obedience  to  the  regulations  of  the  several  acts  passed  on  the 
subject.  It  is  therefore  material  to  consider  what  those  regulations  are. 
By  13  Eliz.  c.  7,  bankrupts  were  only  discharged  to  the  extent  of  the  sum 
actually  paid :  and  thus  the  law  remained  till  the  passing  of  4  Anne,  c.  17, 
by  which  a  bankrupt  surrendering,  and  conforming  with  the  terms  pre- 
scribed, was  discharged  from  all  debts  due  at  the  time  he  became  a  bank- 
rupt; the  reasons  of  which  provisions  are  stated  by  Lord  Hardwicke,  1  Atk. 
256.  To  make  the  remedy  complete,  the  statute  *5  Geo.  2,  c.  30,  ^^a4o-\ 
s.  7,  gives  the  defence  of  a  general  plea  of  bankruptcy,  and  allows  L  -^ 
the  certificate  to  be  evidence  in  support  of  it.  Bat  the  bankrupt  is  not  dis- 
charged by  these  statutes  from  contingent  debts,  Tully  v.  Sparkes,  Lord 
Ilaym.  1546,  nor  from  uncertain  damages,  nor  from  debts  accruing  after  the 
act  of  bankruptcy,  though  arising  on  a  cause  preceding  it.  The  certificate 
is  not  a  bar  to  au  action,  founded  on  an  express  collateral  covenant,  which 
does  not  run  with  the  land.  Mayor  v.  Steward,  4  Burr.  2439.  In  that 
case  the  bankrupt  was  holden  liable  on  an  express  covenant,  and  if  he  be 
so  on  one  sort  of  express  covenant,  why  not  on  another  ?  The  reason  why 
in  general  the  creditors  of  a  bankrupt  are  barred  by  the  certificate  is,  that 
they  may  prove  their  debts  under  the  commission.  But  where  the  creditor 
cannot  come  in  under  the  commission,  there  the  certificate  is  not  a  bar; 
and  in  the  present  case  no  debt  could  be  proved  under  the  commission. 
The  defence  here  set  up  is  founded  on  a  mere  obiter  dictum  of  Yates,  J., 
in  Mayor  v.  Steward,  where  he  says,  that  "  as  the  act  divests  the  bank- 
rupt of  his  whole  estate,  and  renders  him  absolutely  incapable  of  perform- 
ing the  covenant,  it  would  be  a  hardship  upon  him,  if  he  should  remain 
still  liable  to  it,  when  he  is  disabled  by  the  act  of  parliament  from  per- 
forming it."  But  whether  there  would  be  a  hardship  or  not,  was  a  mat- 
ter for  the  consideration  of  the  legislature.  In  fact,  the  hardship  would 
not  be  greater  than  in  suing  a  felon  after  attainder  and  forfeiture  of  his 
lands,  yet  a  felon  in  such  a  situation  is  liable  to  an  action.  Bannister  v. 
Trussel,  Cro.  Eliz.  516 ;  Noy,  1 ;  Owen,  09.  But  in  truth  the  hardship 
would  be  greater  on  landlords,  if  the  tenant  b-ecoming  a  bankrupt  were  dis- 
charged from  his  express  covenants.  They  would  be  liable  to  fraud,  and 
might  be  deprived  of  their  rent.  The  assignees  of  the  bankrupt  might 
assign  the  lease  to  an  insolvent  person,  as  in  Stra.  1221,  where  the  former 
assignee  of  a  term  made  a  further  assignment  to  a  prisoner  in  the  Fleet,  and 
by  such  assignment  was  discharged  from  debt  for  rent  by  the  original  lessor; 
it  bv'ing  holden  that  an  assignee  of  a  term  was  no  longer  liable  than  while 
the  privity  of  estate  continued,  and  he  occupied  the  premises;  which  doc- 
trine also  agrees  with  Walker's  case.  By  assignment  therefore  the  landlord 
may  be  left  without  remedy  unless  he  should  resort  to  the  antiquated  pro- 
cess of  cessavit.  *or  to  the  assistance  of  two  justices  under  stat.  11  ^.^aai-, 
G.  2,  c  19,  s.  16.  Although  an  action  of  debt  on  the  reddendum  L  -• 
of  a  lease   is   barred  by  a  bankrui)t's  certificate,  according  to  the  case  of 


77-4  smith's  leading  cases. 

"Wadham  v.  Marlow,  and  although  an  action  of  covenant  on  an  implied 
covenant  is  also  barred  by  an  assignment,  yet  it  does  not  follow  that  an 
action  of  covenant  on  an  express  covenant  is  likewise  barred.  Though  the 
party  be  exonerated  in  debt,  he  is  not  necessarily  so  in  covenant.  Debt 
lies  on  the  reddendum,  because  a  rent  issues  out  of  the  land,  Plowd.  IH'2 ; 
Co.  Litt.  142,  a.  It  is  payable  out  of  the  land,  and  when  the  possession  of 
the  land  is  parted  with,  the  rent,  and  the  action  of  debt  for  the  recovery  of 
it,  arc  gone.  But  an  express  covenant  is  a  solemn  engagement  from  one 
man  to  another;  it  neither  issues  out  of  land  nor  is  done  aM'ay  by  the  loss 
of  possession.  In  1  Salk.  82,  it  is  said  that  the  action  of  debt  is  founded 
on  privity  of  estate,  but  covenant  on  privity  of  contract,  which  seems  to  be 
admitted.  7  Vin.  Abr.  330.  In  the  case  of  Cotterell  v.  Ilooke,  Dougl.  97, 
on  covenant  for  non-payment  of  an  annuity,  it  appeared  on  oyer,  that  there 
was  a  bond  conditioned  for  payment  of  the  annuity,  besides  the  deed  of 
covenant;  it  was  pleaded  that  both  were  given  for  the  same  purpose,  that 
the  bond  was  avoided  and  the  defendant  discharged  under  an  insolvent  act. 
But  the  court  held,  though  the  bond  were  forfeited  before  the  discharge, 
yet  the  defendant  might  be  sued  afterwards  on  the  covenant.  To  the  same 
point  is  Hornby  v.  Houlditch,  And.  40,  the  judgment  of  Lord  Hardwicke, 
which  case  is  more  fully  stated  in  1  Terra  Rep.  B.  B.  93,  which  is  directly  in 
point  to  show,  that  an  assignment  by  an  act  of  parliament  does  not  dis- 
charge a  party  from  an  express  covenant.  So  also  in  Aylett  v.  James, (f^) 
which  was  an  action  of  covenant,  the  defendant  pleaded  his  discharge  under 
an  insolvent  act,  to  which  there  was  a  demurrer,  and  judgment  for  the 
plaintiff,  the  court  saying,  that  a  bankrupt  was  liable  on  an  express  cove- 
nant made  before  the  bankruptcy.  The  case  of  an  eviction  is  totally  differ- 
ent, since  in  that  case  no  rent  is  due,  whether  the  eviction  be  by  the  lessor 
himself,  or  a  person  having  a  superior  title. 

The  following  were  the  arguments  for  the  defendant :  Admitting  the 
authority  of  the  cases  cited  on  the  other  side,  which  shew  that,  where  there 
,  ,  r,  is  a  voluntary  assignment  by  *a  lessee,  such  assignment  does  not 
L  J  excuse  him  from  an  express  covenant;  admitting,  also,  that  the  ac- 
ceptance of  rent  by  the  lessor  from  the  assignee  would  not  discharge  the 
lessee  from  an  express  covenant;  yet  there  is  a  clear  distinction  to  be  made 
between  an  assignment  by  virtue  of  the  bankrupt  laws,  and  a  voluntary 
assignment  by  the  lessee.  By  the  former,  the  bankrupt  is  divested  by  act 
of  law  of  all  the  property,  out  of  which,  and  in  respect  of  which,  the  cove- 
nant was  made.  A  covenant  for  payment  of  rent  runs  with  the  land  ; 
when  thorefoi'e  the  tenant  is  evicted  by  a  superior  title,  he  is  released  from 
his  covenant.  When  he  is  prevented  from  enjoying  the  land  in  respect  of 
which  he  entered  into  the  covenant,  he  is  no  longer  liable  on  the  covenant. 
Bent  is  defined  to  be  a  certain  profit  issuing  yearly  out  of  lands  and  tene- 
ments corporeal;  Plowd.  71;  2  Black.  Com.  41;  when  therefore  the  hind 
is  gone,  there  is  an  end  of  the  profits;  and  it  is  on  account  of  the  profits 
that  covenants  of  this  kind  are  made.  When  the  consideration  is  gone,  the 
rent  fails.  1  Boll.  Abr.  454,  pi.  8.  Where  the  lessee  makes  a  voluntary 
assignment  of  his  term,  he  has  it  in  his  power  to  make  what  stipulations  he 
pleases  with  the  assignee;   he   may  receive   a  consideration,  may  covenant 

(o)  C.  B.  -22  G.  3. 


MILLS    V.     A  U  R  I  0  L.  775 

for  rent,  for  iuJeiunity,  and  the  like.  But  in  case  of  bankruptcy,  tlie  bank- 
rupt can  make  no  stipulation,  nor  receive  himself  any  valuable  considera- 
tion. There  is  no  analogy  therefore  between  the  assignment  under  a  com- 
mission of  bankrupt  and  a  voluntary  assignment  by  the  lessee  himself.  But 
it  is  admitted  on  the  other  side,  that  a  voluntary  assignment  will  bar  a  cove- 
nant arising  from  the  words  "yielding  and  paying,"  &c.,  which  it  is  said  is 
only  an  implied  covenant;  but  in  Style,  387  &  40G,  those  words  were  holdcn 
to  make  an  express  covenant.  As  to  the  hardship  which  is  supposed  to  be 
brought  upon  the  landlord,  he  may  re-enter  on  non-payment  of  rent,  may 
distrain,  and  resort  to  the  land  itself  for  satisfiiction.  But  the  lessee,  if  he 
be  evicted,  can  have  no  such  remedy:  he  might  therefore  suffer  a  greater 
hardship.  In  case  of  a  lawful  eviction,  the  lessee  is  discharged  from  his 
covenants ;  and  where  he  is  divested  of  his  property  by  an  act  of  parlia- 
ment, it  operates  as  an  eviction,  and  he  ought  in  justice  to  be  equally  dis- 
charged. Though  the  act  of  bankruptcy  was  originally  his  own  act,  yet 
the  statute  is  an  act  of  law,  and  according  to  *Lord  Mansfield's  doc-  r^^.  (  i  p-i 
trine  in  Wadham  v.  Marlow,  in  jure,  non  remota  scd  j^roxima  L 
spectantur.  The  case  of  Mayor  v.  Steward  is  clearly  in  favour  of  the 
defendant,  to  show  the  analogy  between  an  eviction  of  the  tenant  by  the 
landlord,  and  an  eviction  under  an  act  of  parliament:  there  also  the  distinc- 
tion is  taken  between  collateral  covenants,  and  those  which  run  with  the 
land.  As  to  Bannister  v.  Trussel,  there  was  no  question  in  that  case  of 
rent  reserved  on  a  demise,  and  the  particular  enjoyment  of  certain  land  : 
the  point  was,  whether  an  attainted  person  was  freed  generally  from  all  his 
debts?  which  the  court  very  properly  held  he  was  not.  In  Wadham  v. 
Marlow,  Lord  Mansfield  says,  ''  There  is  a  strong  though  obiter  dictum  of 
Yates,  J.,  that  it  would  be  hard  to  leave  the  lessee  liable  to  the  covenants, 
when  the  act  of  law  has  divested  him  of  the  emoluments  and  vested  them 
in  his  creditors;''  and  his  lordship  also  says,  that  ''in  Cantrel  v.  Graham 
the  court  would  not  have  discharged  the  defendant  unless  they  had  been  sat- 
isfied that  the  action  was  not  founded."  In  Ludfurd  v.  Barber,  though  the 
point  was  not  directly  decided,  yet  the  opinion  of  the  court  seems  to  be 
plainly  intimated,  that  if  it  had  been  a  question  like  the  present,  the  rule 
laid  down  in  Wadham  v.  Marlow  would  have  guided  their  determination. 
As  to  Hornby  v.  Houlditch,  there  was  no  bankruptcy  in  that  case,  but  a 
South-sea  Director  was  for  his  misconduct  deprived  of  his  property  by  a 
bill  in  the  nature  of  pains  and  penalties ;  there  was  no  act  of  law  operating 
for  the  benefit  of  an  unfortunate  tradesman;  besides,  there  was  a  large  sum 
reserved  for  the  maintenance  of  the  person  who  was  the  object  of  the  pun- 
ishment;  that  case  therefore  cannot  be  applied  to  the  present.  Here  the 
lessor  himself  has  taken  away  the  obligation  to  pay  the  rent,  by  taking 
away  the  land  which  was  the  consideration  of  the  covenant;  since  it  was 
assigned  by  virtue  of  an  act  of  parliament,  to  which,  according  to  Wadhara 
v.  Marlow,  the  lessor  was  himself  a  party. 

Lord  Louglihorougli. — There  is  no  degree  of  doubt  but  that  the  law  is 
established,  that  an  action  of  covenant  may  be  brought  on  a  covenant  to 
pay  rent,  though  the  lessee  be  not  in  possession  of  the  land,  and  after 
acceptance  of  rent  from  the  assignee  by  the  lessor.  This  is  by  privity  of 
contract;  but   the  distinction  is  clear  between  debt  and  covenant.     Then 


776  smith's   leading   cases. 

r»4i.~l  ^^^^^  ^^^^  term  is  taken  under  the  assignment  *of  commissioners  of 
*-  -I  b;inkrupt,  the  question  is,  whetbcr  it  is  not  by  the  act  of  the  bank- 
rupt himself?  It  is  taken  from  lim  because  he  has  contracted  debts,  and 
instead  of  any  single  creditor  suing  out  a  fieri  facias,  the  common  law  exe- 
cution, there  being  many  creditors  they  join  in  taking  out  a  commission  of 
bankruptcy,  which  is  in  the  nature  of  a  statute  execution.  By  this  the 
property  is  A'estcd  in  the  assignees,  but  not  so  absolutely  as  in  the  vendee 
by  a  sale  under  a  fieri  facias  made  by  the  sherifi";  because  if  the  efi"ects 
were  sufficient  without  it,  the  term  would  remain  to  the  lessee.  Covenant 
then  may  well  be  brought  against  him.  Though  he  is  out  of  possession, 
yet  he  is  placed  in  that  situation  by  his  own  act.  I  am  therefore  of  opinion 
that  the  demurrer  ought  to  be  overruled. 

Gould,  J.,  of  the  same  opinion. 

Ileath,  J.,  of  the  same  opinion. 

Wilson,  J. — The  plea  of  the  defendant  is  not  supported  by  any  adjudged 
case.  It  has  never  yet  been  decided  that  an  action  of  covenant  would  not 
lie  upon  a  covenant  by  a  lessee  which  runs  with  the  land,  and  which  was 
entered  into  before,  but  broken  after,  the  bankruptcy  of  the  covenantor.  I 
entertained  no  doubt  on  this  question  except  what  arose  from  the  hints  thrown 
out  by  some  of  the  judges  of  the  Court  of  King's  Bench  whenever  the 
question  has  come  before  them,  on  account  of  the  dictum  of  Yates,  J.,  in 
Mayor  v.  Steward,  that  as  the  bankrupt  is  divested  of  his  whole  estate,  and 
rendered  incapable  of  performing  the  covenants,  it  would  be  a  hardship 
upon  him  if  he  should  still  remain  liable  to  it,  when  he  is  disabled  by  the 
act  of  parliament  from  performing  it.  But  this  opinion  was  clearly  extra- 
judicial, for,  under  the  circumstances  of  that  case,  the  Court  held  the  plea 
to  be  bad.  In  Wadham  v.  Marlow,  Lord  Mansfield  spoke  of  the  opinion  of 
Yates,  J.,  as  deserving  great  weight,  though  it  was  extra-judicial.  But  in 
that  case  it  was  not  stated  that  the  plaintiff  had  accepted  rent  from  the 
assignee  as  his  tenant,  and  it  was  contended  that  debt  as  well  as  covenant 
would  lie  against  the  lessee,  because  the  lessor  had  done  no  act  to  show  his 
assent  to  the  assignment.  But  the  Court  decided,  on  the  ground  that  the 
plaintiff  had  vii'tually  assented  to  the  assignment,  every  man's  assent  being 
P  .  .Q,  implied  to  an  act  of  parliament,  and  not  on  the  ground  that  an 
L  J  action  of  debt  would  not  lie.      And  *in  Ludford  v.  Barber  the  Court 

gave  judgment  for  the  defendant,  because  the  covenant  declared  upon  had 
never  been  entered  into  by  him  with  the  plaintiff.  Thus  the  Ci[uestion  stands 
with  respect  to  judicial  decisions.  The  several  statutes  relating  to  bankrupts 
prior  to  the  4  Anne,  c.  17,  left  the  bankrupt  not  only  liable  to  all  contin- 
gent debts,  but  to  the  remainder  of  the  debts  which  his  effects  had  been 
unable  to  satisfy.  The  hardship  was  the  same,  for  the  bankrupt  was  deprived 
of  his  all,  and  yet  left  without  any  protection  against  his  creditors.  The 
statutes  previous  to  that  time  meant  to  give  an  execution  for  the  equal 
benefit  of  all  the  creditors,  and,  if  they  were  not  fully  satisfied  by  it,  to 
leave  them  for  what  was  unsatisfied  to  every  remedy  against  the  bankrupt 
which  they  had  before.  Neither  that  statute,  nor  the  now  existing  statutes 
upon  the  subject,  extend  to  this  case.  The  34  Hen.  8,  c.  4, (a)  directs  that 
the  Lord  Chancellor  and  other  great  officers   shall   have  power  to  sell  and 

(a)  Sect.  1. 


AURIOL    V.    MILLS.  777 

dispose  of  the  lands  and  goods  of  bankrupts  in  as  full  a  manner  as  the  bank- 
rupt himself  might  have  done.  Subsequent  statutes  have  empowered  the 
assignees  to  make  the  same  disposition.  The  intent  of  the  several  statutes 
was,  that  the  act  of  the  assignees  should  do  no  more  than  the  act  of  the 
bankrupt  himself.  I  therefore  do  not  see  how  the  maxim  "  in  jure,  nan 
remota  sed proxima  spcciantur"  is  applicable.  The  act  of  parliament  only 
assigns  the  interest  of  the  bankrupt  in  the  land,  but  does  not  destroy  the 
privity  of  contract  between  lessor  and  lessee.  A71  action  of  covenant 
remains  after  the  estate  is  gone  ;  hut  generally  speaking,  even  when  the  land 
is  gone,  the  action  of  debt  is  also  gone,  debt  being  maintainable  because  the 
land  is  debtor. "^  Covenant  is  founded  on  a  privity  collateral  to  the  land. 
A  covenant  of  this  kind  is  mixed  ;  it  is  partly  personal  and  partly  depcadeut 
on  the  land;  it  binds  both  the  person  and  the  land.  This  brings  the  case 
within  the  principle  of  Mayor  v.  Steward. 

Judgment  for  the  plaintiff. 


AURIOL   V.    MILLS,    IN    ERROR. 

Covenant  in  the  Common  Pleas  for  rent.  Pleas,  non  est  factum;  riens 
in  arrere ;  and  the  bankruptcy  of  the  plaintiff  in  error,  before  the  p^jj^q-i 
rent  became  due  :  in  which  plea  it  was  *stated,  that  the  commissioners  L  J 
assigned  the  lease,  in  which  the  covenant  was  inserted,  to  the  assignees  for 
the  residue  of  the  term ;  and  that  by  virtue  of  such  assignment,  all  the 
estate,  interest,  and  term  of  years  then  to  come,  &c.,  of  the  plaintiff  in  error 
in  the  lease,  was  and  still  is  vested  in  the  assignees.  To  the  latter  plea  there 
was  a  gei\eral  demurrer  and  joinder  ;  and,  after  two  arguments  in  the  Court 
of  Common  Pleas,  judgment  was  given  for  the  plaintiff  below.  The  record 
having  been  removed  into  this  court  by  writ  of  error, 

Park,  for  the  plaintiff  in  error,  contended,  that  the  bankrupt  was  dis- 
charged from  his  covenant  to  pay  rent  by  the  assignment  of  all  his  property 
by  the  commissioners.  The  cases  principally  relied  on  in  the  Court  of 
Common  Pleas,  1  Sid.  401,  447;  1  Saund.  240;  Cro.  Jac.  309,  521;  Cro. 
Car.  188,  580 ;  and  Cas.  temp.  Hardw.  343,  only  prove  that  the  lessee 
cannot,  by  his  own  act,  discharge  himself  from  his  express  covenant,  and 
are,  therefore,  not  applicable  to  the  present  case ;  because  here  the  bankrupt 
does  not  endeavour,  by  his  own  act,  to  discharge  himself,  but  the  estate,  in 
respect  of  which  he  entered  into  the  covenant,  is  taken  from  him  by  law. 
Now,  the  general  principle  of  law,  which  holds  a  party  liable  on  his  express 
covenant,  although  the  estate,  in  respect  of  which  it  was  entered  into,  is 
gone,  is  founded  on  the  presumption  that  the  party  voluntarily,  and  by  his 
own  act,  assigned  over  the  estate  to  a  person  in  whom  he  has  confidence, 
and  against  whom  he  has  a  counter  remedy,  if  he  himself  be  sued  by  the 
lessor.  Eut  here  is  no  privity  of  contract  between  the  bankrupt  and  the 
assignee  under  the  commission ;  and,  therefore,  the  reason  for  the  upholding 

t  See  Webb  v.  Jiggs,  4  M.  &  S.  411  ;  Randall  v.  Rigby,  4  Mee.  &  W.  134  ;  where  it 
was  held  on  this  principle  that  debt  will  not  lie  against  a  person  who  covenants  to  secure 
an  annuity  payable  out  of  land. 


778  smith's  leading   cases. 

the  privity  of  contract  between  the  bankrupt  and  his  lessor  falls  to  the 
ground,  especially  too  as  the  bankrupt  could  maintain  no  action  against  the 
lessor  on  any  of  his  covenants.  ^  p^irty  who  enters  into  a  covenant  is  only 
liable  in  two  respects  ;  either  in  respect  of  the  estate  which  he  enjoys,  or  on 
his  personal  contract.  But  in  this  case  the  first  is  assigned  over,  and  is 
taken  from  the  lessee  by  act  of  law,  by  a  compulsory  power  which  he  cannot 
resist :  and,  as  to  the  other,  the  law  has  taken  away  the  means  by  which  he 
was  enabled  to  perform  the  contract;  and  he  cannot  remain  liable  on  the 
covenant  for  himself  and  his  assigns,  for  that  means  voluntary  assigns;  but 
r-^Arn-]  ^cre  it  appears  by  the  *rccord  that  the  estate  is  vested  in  the 
L  -^  assignees  under  the  commission,  who  are  not  (legally  speaking)  the 
assignees  of  the  bankrupt,  but  of  the  creditors  or  commissioners;  the  bank- 
rupt himself  does  not  even  assign  in  point  of  fact;  he  is  no  party  to  the 
deed  of  assignment.  It  was  contended  in  the  Court  of  Common  Pleas,  that 
a  bankrupt  remains  liable  on  his  express  covenants,  because  there  are  no 
express  words  in  the  statutes  concerning  bankrupts  to  discharge  them  :  but 
they  are  by  no  means  necessary;  for  in  Brewster  v.  Kitchell,(a)  Holt,  C. 
J.,  said,  "  If  H.  covenant  to  do  a  thing  which  is  lawful,  and  an  act  of  par- 
liament come  in  and  hinder  him  from  doing  it,  the  covenant  is  repealed ;" 
for  which  was  cited  By.  27,  pi.  278.  In  this  case,  the  bankrupt  is  disabled 
from  performing  the  covenant,  which  is  the  same  thing;  and  the  rule  of  law 
applies,  lex  tion  cogit  ad  imposdhilia.  A  bankrupt  is  discharged  by  the 
bankrupt  laws  from  such  obligations  as  arise  in  respect  of  any  property 
vested  in  the  assignees  by  virtue  of  those  statutes.  In  Mayor  v.  Steward, (i) 
Yates,  J.,  said,  ''as  the  act  divests  him  of  his  whole  estate,  and  renders  him 
absolutely  incapable  of  performing  the  covenant,  it  would  be  a  hardship 
upon  him  if  he  should  remain  still  liable  to  it,  when  he  is  disabled  by  the 
act  of  parliament  from  performing  it."  And  the  Court  (^though  they  held 
that  the  party  was  liable  in  that  case,  which  was  on  a  collateral  covenant), 
nearly  adopted  the  language  of  Yates,  J.  In  Cantrel  v.  Graham(c),  that 
point  was  determined;  and  the  authority  of  that  case,  as  well  as  the  opinion 
of  Yates,  J.,  were  afterwards  expressly  recognized  by  this  Court  in  Wad- 
ham  V.  Marlow((:Z),  in  which  Lord  Mansfield,  after  noticing  those  cases,  and 
speaking  of  the  eflfect  of  the  assignment  of  the  commissioners  of  bankrupts, 
concluded  thus :  "  It  was  argued,  that  if  a  man  be  divested  by  act  of  law, 
without  his  own  default,  he  is  discharged;  this  is  as  strong;  because,  though  it 
were  his  own  act  originally  on  which  the  assignment  was  founded,  yet  the  im- 
mediate effect  produced  is  by  the  act  of  parliament ;  et  in  jure,  non  remota  sed 
jyroxima  spectantur."  When  this  case  was  determined  in  the  Common  Pleas, 
it  was  thrown  out  by  one  of  the  judges,  that  the  maxim  was  not  applicable  to 
a  case  like  this  :  but  on  examination  it  will  be  found  to  apply  with  peculiar 
r*i'ill  ^*^^^^-  T^^^  objection  is,  that  the  bankrupt  is  divested  of  his  estate 
L  -"by  his  own  *act :  but  according  to  Lord  Bacon's  illustration  of  the 
rule,(e)  though  the  act  of  bankruptcy  be  the  primary  cause  on  which  the 
bankrupt  laws  attach,  yet  the  immediate  cause  of  his  being  divested  of  his 
estate  is  the  assignment  by  the  commissioners,  beyond  which  the  Court  are 
not  to  look.     For  he  says,  "  It  were  infinite  for  the  law  to  judge  the  causes  of 

(n)  Salk.  198.  {h)  4  Burr.  2443.  (c)  Barnes,  G9,  4to  edition. 

{d)  H.  Bl.  Rep.  437,  and  Cook's  Bank.  Laws,  518,  2d  edition, 
(c)  Bac.  Law  Tr.  35. 


A  U  R  I  0  L    V.     MILLS.  779 

causes,  and  their  impulsions  one  of  another ;  therefore  it  contcnteth  itself  with 
the  immediate  cause,  and  judgeth  of  acts  by  that,  without  looking  to  any  far- 
ther degree."  And  he  puts  this  case  :  "  If  an  annuity  be  granted  pro  consilio 
im^'icnso  et  impendcndo,  and  the  grantee  commit  treason,  whereby  he  is  im- 
prisoned, so  that  the  grantor  cannot  have  access  to  him  for  his  counsel, 
nevertheless  the  annuity  is  not  determined  by  this  non-feasance  ;  yet  it  was 
the  grantee's  act  and  default  to  commit  the  treason  whereby  the  imprison- 
ment grew  :  but  the  law  looketh  not  so  far,  but  excuseth  him,  because  the 
not  giving  counsel  was  compulsory,  and  not  voluntary,  in  regard  to  the  im- 
prisonment." Now  that  is  a  much  stronger  instance  than  the  present  5  for 
that  proceeded  on  the  express  crime  of  the  grantee.  With  respect  to  the 
case  of  Hornby  v.  Houlditch,(/)  which  was  relied  on  in  favour  of  the  plain- 
tiff below :  it  is  to  be  observed  in  the  first  place  that  it  does  not  appear  by  a 
MS.  note  of  that  case,  taken  by  Lee,  C.  J.,  that  Lord  Hardwicke  concurred 
in  opinion  wdth  the  Court :  and,  even  if  he  did,  that  case  is  clearly  distin- 
guishable from  the  present.  The  question  there  depended  on  an  act  of  par- 
liament, a  bill  of  pains  and  penalties,  which  was  passed  on  account  of  the 
crimes  of  the  South  Sea  Directors;  and  even  there  the  Directors  had  a  cer- 
tain sum  (and  that  too  a  considerable  one)  reserved  to  them  for  the  payment 
of  their  private  debts  :  but  bankrupts  are  considered  as  unfortunate  traders 
rather  than  as  criminals ;  the  allowance  to  them  when  made,  is  very  incon- 
siderable, and  it  is  contingent  whether  or  not  they  are  to  receive  any  allow- 
ance. Neither  is  this  case  like  the  one  to  which  it  was  compared  below,  of 
a  common  law  execution,  where  it  is  said  that  the  tenant,  whose  term  is  thus 
taken  from  him,  is  liable  on  his  covenant;  because  there  the  privity  of  con- 
tract is  not  at  an  end ;  the  lessee  has  his  remedy  over  against  the  vendee  of 
the  sheriff:  whereas  in  this  case  the  bankrupt  has  no  control  whatever  over 
the  assignees  in  whom  the  term  is  now  *vested.  The  argument  ab  i-^  <  kq-i 
inconvenienti  may  fairly  be  urged  in  construing  the  statutes  relating  L 
to  bankrupts  :  by  determining  that  the  bankrupt  is  discharged  in  this  case, 
the  lessor  will  not  suffer,  because  he  always  has  his  remedy  against  the 
tenant  in  possession :  whereas  to  hold  that  the  bankrupt  continues  liable 
after  his  bankruptcy,  is  to  decide  that  he  is  bound  by  his  covenant  to  pay 
rent  for  an  estate  which  is  absolutely  taken  from  him  by  the  compulsory 
power  of  the  law,  and  in  the  expectation  of  enjojang  which  only  he  entered 
into  the  covenant. 

Bond,  Serjt.,  contra. — It  appears  from  all  the  authorities  on  this  subject, 
that  nothing  can  discharge  a  person  from  his  express  covenant  but  the  ex- 
press words  of  an  act  of  parliament,  or  the  release  of  the  covenantee.  The 
cases  of  Wadhara  v.  Marlow,  and  Cantrel  v.  Graham,  are  not  applicable 
to  the  present;  for  they  were  bothr^)  actions  of  debt.  That  species  of 
action  is  founded  on  the  possession  of  the  tenant;  and  when  the  lessor 
consents  that  the  lessee  shall  assign  to  another  person,  the  lessee  is 
discharged.  But  this  action  is  founded  on  the  express  covenant  of  the 
lessee;  and  the  case  of  Hornby  v.  Houlditch  clearly  proves  that  he 
remains  liable  on  that  covenant,  notwithstanding  his  bankruptcy.      That  was 

(/)  Andr.  40,  and  1  T.  R.  93,  n.  a. 

Ig)  It  does  not  appear  clearly  from  the  report  of  the  case  of  Cantrel  v.  Graham,  whe- 
ther it  were  an  action  of  debt  or  covenant ;  thougli,  from  some  expressions  used  by  tiie 
Court  in  determining  it,  it  rather  appears  to  be  the  former. 


780  smith's  leading  cases. 

a  kind  of  statute  execution  like  the  present :  and  Lord  Hardwicke,  in  giving 
his  opinion  on  the  case,  alluded  to  the  instance  of  a  bankrupt.  From  the 
reign  of  Queen  Elizabeth,  -when  the  first  statute  relating  to  bankrupts  was 
passed,  down  to  that  of  Queen  Anne,  bankrupts  continued  liable  for  their 
debts  contracted  before  their  bankruptcy,  and  the  dividends  under  the  com- 
missions were  only  considered  as  a  payment  pro  tanto  :  the  statute  4  Anne 
(the  reasons  for  making  which  provisions  are  stated  by  Lord  Hardwicke  ia 
1  Atk.  255-6)  for  the  first  time  discharged  them  from  their  debts  in  toto  j 
but  that  act  only  gives  a  discharge  from  debts  due  at  the  time  of  the  bank- 
ruptcy. Now  the  demand  made  by  the  defendant  in  error  in  this  case,  was 
not  a  debt  due  at  the  time  of  the  bankruptcy,  and  therefore  the  plaintiiF 
in  error  is  not  discharged  from  it.  What  fell  from  Yates,  J.,  in  Mayor  v. 
Steward,  was  merely  an  extrajudicial  opinion,  not  necessary  to  be  given  on 
the  case  then  before  the  Court ;  and  it  was  only  an  observation  on  the  hard- 
r*4.^m  ^^'P  °^  *^®  ciise,  without  saying  what  the  law  was  upon  the  subject. 
L  -J  But  if  it  be  a  case  of  ^hardship,  it  can  only  be  remedied  by  the 
legislature,  and  not  by  the  courts  of  law.  A  statute  execution  is  analogous, 
in  this  respect,  to  a  common  law  execution ;  in  that,  if  a  term  be  taken  un- 
der a  fieri  facias,  the  lessee  still  continues  liable  on  his  covenant.  So  if  a 
person  be  divested  of  all  his  property  by  attainder  in  felony,  he  is  liable  for 
Lis  debts  contracted  before,  though  deprived  by  law  of  the  means  of  paying 
them.  Cro.  Eliz.  516.  There  may  possibly  be  some  hardship  on  the  lessee 
in  particular  cases :  but  it  would  also  be  extremely  hard  on  the  landlord,  if 
he  were  deprived  of  his  remedy  on  the  covenant  of  the  lessee;  for  though 
he  may  always  bring  an  action  of  debt  against  the  tenant  in  possession,  yet 
the  term  may  be  assigned  over  to  an  insolvent,  as  was  done  in  the  case,  2 
Str.  1221.  It  seems  therefore  in  point  of  reason  and  justiae,  as  well  as  of 
strict  law,  that  the  defendant  in  error  is  entitled  to  the  judgment  given  in 
his  favour  by  the  Court  of  Common  Pleas. 

Buller,  J.,  observed,  that  in  arguing  the  case  of  Wadham  v.  Marlow,  a 
case  was  cited  from  Hob.  82  :  and  he  asked  the  counsel  whether  that  case 
affected  the  present.     No  answer  being  given, 

The  Court  said  it  would  be  proper,  before  they  gave  judgment,  to  look 
into  the  cases  that  had  been  mentioned. 

Lord  Kenyan,  C.  J.,  on  the  next  day  delivered  the  opinion  of  the  Court. 

It  was  not  owing  to  any  doubt  that  we  entertained  on  this  question  that 
we  did  not  pronounce  judgment  when  the  case  was  argued  :  but  as  a  case 
was  alluded  to  in  Ilobart,  which  was  not  argued  upon  at  the  bar,  we  wished 
to  have  an  opportunity  of  examining  that  case  before  we  gave  our  opinion. 
But,  on  looking  into  it,  we  think  that  it  does  not  press  upon  the  present 
case  ;  and  we  are  all  of  opinion  (in  which  Buller,  J.,  who  is  now  absent, 
concurs)  that  the  judgment  of  the  Court  of  Common  Pleas  must  be  afiirmed. 
It  is  extremely  clear,  that  a  person  who  enters  into  an  express  covenant  in 
a  lease,  continues  liable  on  his  covenant  notwithstanding  the  lease  be  assign- 
ed over.  The  distinction  between  the  actions  of  debt  and  covenant  which 
was  taken  in  early  times,  is  equally  clear  :  if  the  lessee  assign  over  the  lease, 
and  the  lessor  accept  the  assignee  as  his  lessee,  either  tacitly  or  expressly, 
r*4^n  '^^  appears  by  the  authorities  that  an  action  of  debt  will  not  lie  against 
L  -^  *the  original  lessee;  but  all  those  cases  with  one  voice  declare,  that 
if  there  be  an  express  covenant,  the  obligation  on  such  covenant  still  con- 


A  U  R  I  0  L    V.     MILLS.  YSl 

tinues.  And  this  is  founded  not  on  precedents  only,  but  on  reason  ;  for  when 
a  landlord  grants  a  lease,  he  selects  his  tenant;  he  trusts  to  the  skill  and 
responsibility  of  that  tenant;  and  it  cannot  be  endured  that  he  should  after- 
wards be  deprived  of  his  action  on  the  covenant  to  Avhich  he  trusted  by  an 
act  to  which  he  cannot  object,  as  in  the  case  of  an  execution.  In  such  a 
case  the  lessor  has  no  choice  of  the  under-tenant :  so  here  the  assignees  are 
bound  to  sell  the  term,  and  perhaps  they  may  assign  to  a  person  in  whom 
the  lessor  has  no  confidence. 

Then  it  remains  to  be  considered  whether  any  exception  to  that  general 
rule  has  taken  place  in  the  case  of  a  bankruptcy.  It  seemed  admitted  in  the 
argument,  and  indeed  it  cannot  be  disputed,  that,  where  a  disposition  of  the 
lease  has  been  made  by  virtue  of  a  fieri  facias,  or  an  elegit,  the  lessee  con- 
tinues liable  on  his  covenant,  notwithstanding  the  estate  be  taken  from  him 
against  his  consent.  On  the  same  principle  the  South  Sea  Director  was  held 
liable,  although  he  was  divested  of  his  property  by  the  act  of  confiscation. 
So  in  the  case  of  an  attainder,  and  other  cases,  which  it  is  not  necessary  to 
mention  particularly,  as  they  are  all  collected  in  the  report  of  this  case  in 
the  Common  Pleas.  Then  what  is  there  peculiar  in  the  case  of  a  bankrupt, 
which  should  difi'er  it  from  those  cases  ?  No  act  of  parliament  has  said  that 
he  shall  be  discharged  from  his  covenants;  neither  is  there  any  resolution 
in  either  of  the  courts  of  law  to  that  effect :  but,  on  the  contrary,  it  has 
been  uniformly  determined  in  all  the  various  cases  on  the  subject,  that,  for 
all  contracts  which  are  not  to  be  performed  till  a  period  subsequent  to  the 
bankruptcy,  the  bankrupt  shall  still  be  liable,  notwithstanding  he  is  stripped 
of  all  his  property  ;  as  in  the  case  of  Goddard  v.  Vandcrheyden,(a)  and 
many  others.  So,  in  this  case,  the  defendant's  liability  to  pay  happened 
after  the  bankruptcy ;  and  therefore,  on  the  principle  of  those  cases,  he 
remains  liable,  notwithstanding  the  conmiission  of  bankrupt  divested  him  of 
all  his  property;  for  a  certificate  would  only  have  made  him  a  new  man 
from  the  time  when  the  act  of  bankruptcy  was  committed.  But  instances 
have  occurred  where  persons,  who  have  been  declared  bankrupts,  have  been 
possessed  of  *considerable  property  after  paying  all  their  debts;  as  (-^(---i 
iu  that  of  Sir  S.  Evans.  Then,  in  reason,  why  should  a  person  not  L 
continue  liable  on  his  covenant,  when  his  affairs  are  arranged  ?  Then  it 
was  contended  that  the  bankrupt  put  an  end  to  the  privity  of  contract :  but 
that  argument  is  not  well  founded;  for  it  was  asked  by  Lord  Hardwicke,  in 
the  case  of  Hornby  v.  Houlditch,  as  it  is  reported  in  the  reports(i)  of  this 
Court,  <'  what  is  there  here  to  discharge  the  privity  of  contract  or  estate 
between  the  lessor  and  lessee  ?  or,  what  is  there  to  discharge  an  express 
covenant  ?"  In  the  language  of  Lord  Hardwicke,  I  may  ask  the  same  ques- 
tions in  this  case.  Has  the  landlord  done  any  act  to  discharge  the  lessee? 
Even  in  cases  where  the  landlord  has  expressly  consented  to  receive  the 
assignee  as  his  tenant,  the  original  lessee  has  always  been  held  liable  on  his 
covenant ;  and  those  are,  in  my  opinion,  much  stronger  cases  than  the  pre- 
sent, where  the  assignees  are  forced  upon  the  landlord  without  his  consent. 
This  is  like  the  case  of  an  execution,  and,  indeed,  in  some  of  the  books  it  is 
called  a  statute-execution.     In  every  view  of  the  question,   therefore,  I  am 

(a)  3  Wils.  2G-2.  (b)  ]  T.  R.  93,  n.  a. 


782 


SMITHS     LEADING     CASES. 


clearly  of  opinion,  that  this  case  was  properly  decided  in  the  Court  of  Com- 
mon Pleas,  and  that  that  judgment  ought  to  be  affirmed. 

Judgment  affirmed. fo) 


It  appears   to  have   been    taken    for 
granted,    llirougln)ut   the   argument   in 
both  courts,  that  the  baiikrnpi's  term  had 
become  properly  vested  in  his  assignees; 
and   tiiat  the  tact  sufficiently  appeared 
upon  the  pleadings.     However,  the  case 
of  Copchuid   V.  Stephens,  1  B.  tfc   Ad. 
593,  has  since  decided  that  the  general 
at^signment  of  a  bankrupt's  personal  es- 
tate under  the  fiat,  does  not  vest  a  term 
of  years  in  the  assignees,  unle.-s  they  do 
some  act  to  manifest  their  assent  to  the 
assignment,  as   regards   the    term,  and 
their  acceptance  of  the  estate.     For  "  an 
assignment  by  commissioners  of  bank- 
rupt  is   the   execution  of  a   statutable 
power  given  to  them  for  a  particular  pur- 
pose,  viz.,    payment  of  the   bankrupt's 
debts.     iNothing    passes  from  them,  for 
nothing  was  previously  vested   in  them. 
Whatever  passes,  passes  by  force  of  the 
statute,  for  the  purpose  of  effecting  the 
object  of  the  statute  ;  and,  therefore,  the 
a.-jsiguees  of  a  bankrupt  are  not  bound  to 
accept  a  term  of  years  that  belonged  to 
the   bankrupt,  subject  to  the  rent  and 
covenants;  lor,  the  object  of  the  statute 
and  of  the  assignment  being  the  payment 
of  the  bankrupt's  debts,  and  the  assig- 
nees under  the  commission  being  trus- 
tees for  that  purpose,  the  acceptance  of 
a  term  which,  instead  of  furnishing  the 
means  of  such  a  payment,  would  dimin- 
ish the  fund  arising  from  other  sources, 
cannot  be  within  tlie  scope  of  their  trust 
or  duty.     And,  in  this   respect,  such  a 
term  differs  from  the  debts  of  the  bank- 
rupt, and  his  unincumbered   etlects  and 
chattels.     The  whole  estate   remains  in 
the  bankrupt  until  acceptance  by  the  as- 
signees, subject  to  their  right  to  have  the 
land  by  their  acceptance."    Per  Lord  El- 
lenborough,  C.  J.,  ib.     [See    Ringer  v. 
r*j."fi  ^-^3'"i>  3  Mee.  &  \V.  343,  per  cur.] 
L  "*'^"-l  And  *although  st.  1  &2  \V.  4,  c. 
56,  s.  25,  has  now  abolished  the  assign- 
ment,and  rendered  theappoinlmentoflhe 
assignees  equivalent  thereto;  still,  as  it 
has  given   to  the  appointment  an   effect 
precisely  co-e.vtensive  with  that  of  the 


assignment,  the  doctrine  of  Copelnnd  v. 
Stephens  remains,  as  far  as  that  statute 
is  concerned,  in  full  force.  So  that,  if 
the  law  now  rested  on  the  decisions  in 
Mills  v.  Anriol,  and  Copeland  v.  Ste- 
phens, a  bankrupt  lessee  would  be  liable 
exactly  as  if  no  bankruptcy  had  taken 
place,  until  acceptance  of  the  lease  by 
his  assignees;  and,  after  their  accep- 
tance of  it,  he  would  continue  liable  on 
his  express  covenants  in  the  same  man- 
ner as  if  the  lease  had  passed  into  the 
hands  of  an  ordinary  assignee.  And  this 
it  is  important  to  remember,  because, 
though  the  enactment  now  about  to  be 
cited  improves  the  situation  of  the  bank- 
rupt in  some  respects,  yet  there  are  very 
many  cases  to  which  it  does  not  extend, 
and  to  those  cases  the  above  doctrines 
continue  to  apply  in  full  force. 

Stat.  G  G.  4,  c.  16,  which  extends  the 
relief  afforded  by  a  previous  enactment 
in  49  G.  3,  c.  121,  sect.  19,  enacts,  in 
section  75,  "  that  any  bankrupt  enti- 
tled to  any  lease,  or  agreement  for  a 
lease,  if  the  assignees  accept  the  same, 
shall  not  be  liable  to  pay  any  rent 
accruing  after  the  date  ot  the  commis- 
sion, or  to  be  sued  in  respect  of  any  sub- 
sequent non-observance  or  non- perform- 
ance of  the  conditions,  covenants,  or 
agreements  therein  contained  : — And  if 
the  assignees  decline  the  same,  shall  not 
be  liable  as  aforesaid,  in  case  he  deliver 
vp  such  lease  or  agreement  to  the  lessor 
or  such  person  agreeing  to  grant  a 
lease,  within  fourteen  days  after  he 
shall  have  had  notice  that  the  assignees 
shall  have  declared  as  aforesaid;  and 
if  the  assignees  shall  not  (upon  being 
thereto  required)  elect  whether  they 
will  accept  or  decline  such  lease  or 
agreement  for  a  lease, — the  lessor  or 
person  so  agreeing  as  aforesaid,  or  any 
person  entitled  under  such  lessor  or  per- 
son so  agreeing,  shall  be  entitled  to 
apply  by  petition  to  the  Lord  Chancellor, 
who  may  oiuler  them  so  to  elect,  and  to 
deliver  up  such  lease  or  agreement  in 
case  they  shall  decline  the  same,  or  may 


(a)  Sec  Marks  v.  Upton,  7  T.  R.  3U5. 


A  U  R  I  O  L    V.     MILLS. 


'83 


make  such  other  order  therein  as  he  shall 
think  fit." 

It  has  been  held  that  parol  leases  fall 
within  this  section,  the  offer  to  deliver 
possession  being  equivalent  to  the  deli- 
very up  of  the  lease,  (Slack  v.  Sharpe,  8 
Ad.  &  Ell,  366.  [Accord.  E.xparte 
Hopton,  2  iM.  D.  &  D.  347,  but  see 
Brigg-s  V.  Sowry,  8  Mee.  &  VV.  729,  per 
cur.  obiter.] 

Thi^  statute  applies  only  to  cases 
arising  between  lessor  and  lessee,  it 
does  not  apply  to  the  case  of  the  assignee 
of  a  lease  becoming  bankrupt:  Manning 
V.  Flight,  3  B.  &  Ad.  211.  Taylor  v. 
Young,  Ibid.  521.  In  the  former  case 
the  plaintiffs,  as  devisees  of  John  Man- 
ning, brought  covenant  for  rent  against 
the  defendants  as  lessees,  who  pleaded 
that  they  assigned  to  one  W.  P.  B.,  who 
afterwards  became  a  bankrupt;  that  the 
arrears  of  rent  sued  for  fell  due  after  the 
date  of  his  commission ;  that  the  assignees 
declined  the  lease,  and  that  the  bank- 
rupt within  fourteen  days  delivered  it  up 
to  the  plaintiffs.  The  plaintiffs  replied, 
that  they  did  not  accept  it,  and,  upon 
demurrer,  the  court  held,  that  the  plea 
was  bad. — "If,"  said  Littledale,  J.,  "be- 
fore the  statute,  there  had  been  an  as- 
signment of  the  lease,  and  the  lessors 
had  accepted  rent  from  the  assignee, 
they  might,  notwithstanding,  have  pro- 
ceeded by  covenant  against  the  lessees, 
the  privity  of  contract  n(;t  being  destroy- 
ed. The  6  G.  4,  c.  16,  s.  75,  makes  no 
difference  in  this  respect:  it  contem- 
plates the  case  of  a  bankrupt  lessee  only, 
not  of  an  assignee  of  the  term.  The 
statute  operates  only  as  a  personal  dis- 
charge of  the  bankrupt,  for  it  does  nut 
say  that  the  lease  and  covenants  sliall 
be  at  an  end,  but  merely  that  the  bank- 
rupt lessee  shall  not  be  liable  to  be  sued 
in  respect  of  any  subsequent  non-obser- 
vance of  the  covenants."  [In  Exparte 
Vardy,  3  M.  D.  &  D.  345,  the  statute 
was  applied  by  Knight  Bruce,  V.  C,  to 
a  case  where  the  lease  was  in  the  hands 
of  an  equitable  mortgagee;  and  in  E.x- 
parte Norton,  Ibid.  312,  to  a  case  where 
one  of  two  lessors  was  in  partnership 
with  the  tenant,  and  by  the  partnership 
articles  the  lease  was  agreed  to  be  part- 
nership property.] 

There  can  be  no  apportionment  of 
rent  under  the  section,  so  as  to  make  the 
bankrupt  liable  to  what  accrued  previous 
to  the  bankruptcy,  Slack  v.  JSharpe,  8 
Ad.  &  Ell.  366. 

When  the  assignees  accept  the  lease, 


the  discharge  of  the  bankrupt  is  so  com- 
plete, that,  even  tho\igli  he  .should  after- 
wards come  in  as  the  assignee  of  his 
own  assignees,  he  will  incur  no  greater 
liabilities  than  any  other  person  would 
in  the  same  character.  Doe  d.  Cheere 
V.  Smith,  5  Taunt.  800.  But  a  surety 
for  a  lessee  is  liable  for  breaches  of  cove- 
nant wh'ch  occurred  alter  the  date  of  a 
commission  of  bankruptcy  against  the 
lessee,  but  before  the  delivery  up  of  the 
lease  by  the  bankrupt  to  the  lessor  under 
6  G.  4,  c.  16,  s.  75: — for  even  assuming 
that  delivery  up  to  opr^rale  us  a  surren- 
der, still  the  surrender  of  the  lease  can- 
not be  iiold  to  relate  back  to  the  date  of 
the  fiat  or  commission.  Tuck  v.  Fyson, 
6  Bing.  3:n. 

Wherever  the  provisions  of  the  6  G. 
4,  c.  16,  s.  75,  do  not  apply,  (and  there 
are  *several  cases  besides  that  ^^  r^-Ar^-r^ 
the  assignee  of  a  lease  to  which  *-  "  -' 
they  would  probably  be  held  inapplica- 
ble; for  instance,  they  would  probably 
be  held  not  to  inckule  the  case  of  a 
lessee  becoming  bankrupt  after  having 
made  an  under-lease),  in  all  such  cases 
recourse  must  be  had  to  the  doctrines 
established  in  Mills  v.  Auriol,  and  Cope- 
land  V.  Stephens,  in  order  to  ascertain 
the  e.xtent  of  the  bankrupt's  liability. 

In  cases  where  the  provisions  of  the 
act  apply,  the  course  to  he  pursued  by 
the  bankrupt,  in  order  to  obtain  his  dis- 
chargi',  depends  upon  the  adoption  or 
non-adoption  of  the  lease  by  his  as- 
signees; since,  if  they  adopt  it,  he  has 
merely  to  remain  quiescent:  but  if  tliey 
decline  it,  he  must  then,  within  14  days 
after  he  has  had  notice  of  iheir  election, 
deliver  the  lease  up  to  the  lessor; — and, 
in  cases  where  the  provisions  of  the  act 
do  not  apply,  the  extent  of  the  bank- 
rupt's liability  also  depends  upon  the 
adoption  or  rejection  of  the  lease  by  the 
assignees.  It  has  frequently,  therefore, 
become  important  to  inquire  what  acts 
on  the  part  of  the  assignees  amount  to 
an  adoption  of  the  lease;  and  the  gene- 
ral rule  upon  this  subject  i.s,  that  any 
intermeddling  with  the  estate  in  the  ca- 
pacity of  owner,  amounts  to  an  adoption 
of  it ;  but  that  a  mere  cxppriment  to-as- 
certain  its  value  has  not  such  an  effect. 
Thus,  where  the  assignees  put  up  the 
lease  to  sale,  and  accepted  a  deposit  from 
the  purchaser,  they  were  held  to  have 
adopted  it.  lIa^tings  v.  Wilson,  Ilolt, 
290.  See  also  Hanson  v.  Stevenson,  1 
B  &  Ad.  208 ;  Welsh  v.  Myers,  4  Camp. 
363;  Hancock  v.  Welsh,  1  Camp.  347; 


784 


SMITHS     LEADING    CASES. 


Thnmns  v.  Pembprton,  7  Taunt.  206; 
Clarke  v.  Hmno,  1  K.  &  M.  207  ;  Page 
V.  Godder,  2  Stark.  :i()9  ;  Gibson  v.  Cour- 
thnrpe,  1  D.  &  R.  205.  But  in  the  case 
ofTurner  v.  Hicliard.son,  7  East,  o35,  the 
assignees  never  entered  on  the  premises : 
and  the  question  was,  whether  the 
putting  up  the  lease  to  sale  by  auction, 
was  a  taking  possession  ;  the  Court  held 
tiiat  it  was  not  .so,  it  being  a  mode  used 
by  the  assignees  for  ascertaining  whether 
it  was  advisable  for  them  to  take  posses- 
sion or  no.  See  Wheeler  v.  Bratnah,  3 
Camp. 340;  Hill  v.  Dobie,8  Taunt,.3i5; 
[Lindsay  v.  Linibert,  12  Moore,  209.] 

If  the  assignees  adopt  the  lease,  they 
may  exonerate  themselves  from  all  lia- 
biliiies  by  assigning  it  over,  in  the  same 
wny  as  an  ordinary  assignee  may.  0ns- 
]o\v  V.  Corrio,  2  Mod.  330. 

[There  are  provisions  in  the  insolvent 


acts,  1  &  2  Vict.  c.  110,  s.  50,  and  7  & 
8  Vict.  c.  96,  s.  12,  similar  to  tliose  of  the 
bankrupt  law  regarding  leases;  and  it 
was  held  upon  the  construction  of  1  G. 
4,  c.  119,  one  of  the  old  insolvent  acts, 
that  where  the  assignee  had  accepted  the 
lease,  and  acted  as  tenant,  his  executor 
(no  new  assignee  having  been  appointed) 
was  liable  for  breaches  subsequent  to  the 
testator's  death,  Abercrombie  v.  Hick- 
man, 8  Ad.  &  Ell.  687.  See  as  to  the 
effect  of  an  assignment  under  the  insol- 
vent act,  Lindsay  v.  Limbert,  12  Moore, 
209,  2  C.  &,  P.  526,  S.  C. ;  Doe  d.  Pal- 
mer v.  Andrews,  12  Moore,  601,  4  Bing. 
348,  S.  C;  Topham  v.  Dent,  6  Bing. 
515.  4  Moo.  &  P.  264,  S.  C,  which  sug- 
gest a  possible  distinction  between  the 
effect  of  a  bankruptcy  and  an  insolvency, 
upon  terms  of  years  belonging  to  the 
bankrupt  or  insolvent.] 


Whether  a  demand  which  originated  before  bankruptcy,  continues  in  force 
afterward.?,  depends  in  general  on  whether  it  could  have  been  proved  under 
the  commission,  or  before  the  tribunal  authorized  to  make  distribution  of  the 
bankrupt's  estate,  in  payment  of  his  debts.  For  there  would  be  a  manifest 
injustice,  in  depriving  the  creditor  of  the  power  of  subsequent  recourse  against 
the  person  of  the  bankrupt,  without  any  present  equivalent  from  the  estate. 
Under  the  former  bankrupt  laws  of  England  and  this  country,  no  demand 
could  be  admitted  to  proof,  which  was  not  a  present  debt,  although  debts 
payable  in  future  might  be  proved,  if  due  in  pra3senti;  Lansing  v.  Prende- 
gast,  9  Mass.  128 ;  Selfridge  v.  Gill,  4  id.  96  ;  Rathbone  v.  Murray,  1 
Caines,  588  ;  and  even  when  uncertain  in  amount,  if  susceptible  of  being 
reduced  to  certainty  ;  Fowles  v.  Treadwell,  24  Maine,  347.  To  give  aeon- 
tract  for  the  payment  of  money  the  character  of  a  debt,  the  consiJeration 
must  be  executed,  and  the  obligation  of  the  contract  absolute ;  and  hence, 
when  the  one  was  contingent  or  the  other  executory,  the  demand  could  not 
be  proved  under  the  commission,  and  the  liability  of  the  bankrupt  con- 
tinued, notwithstanding  his  discharge.  Thus  in  Sparhawk  v.  Broome,  G  Bin- 
ney,  256,  a  bankrupt  was  held  liable  on  the  endorsement  of  a  note,  between 
the  issuing  of  the  commission  and  the  date  of  the  certificate,  because  the 
obligation  imposed  by  the  endorsement,  did  not  become  absolute  until  the  sub- 
sequent default  of  the  maker.  The  same  rule  was  applied  in  Murray  v.  De 
Rottenhara,  6  Johns.  Ch.  52,  by  Chancellor  Kent,  who  held  the  bankrupt 
answerable  after  his  discharge,  upon  a  previous  covenant  to  pay  the  taxes  on 
land,  which  he  had  conveyed  to  a  trustee  for  the  benefit  of  his  creditors. 

The  obligation  of  a  tenant  to  pay  the  future  rent  reserved  on  a  lease,  as 
it  shall  accrue  in  futuro,  comes  within  the  scope  of  these  decisions.  For 
although  the  obligation  to  pay  the  rent  throughout  the  whole  of  the  term,  is 
so  far  absolute,  from  the  moment  at  which  the  lease  is  executed,  that  it  can- 


MILLS   V.    AURIOL.  785 

not  be  thrown  off  by  any  act  of  the  tenant,  yet  it  is  not  a  debt  in  the  proper 
sense  of  the  term,  because  it  is  not  founded  upon  an  executed  consideration. 
A  lease  is  essentially  an  executory  contract,  in  which  the  right  of  the  land- 
lord to  the  rent,  is  a  correllative  of  that  of  the  tenant  to  the  possession  and 
enjoyment  of  the  premises;  and  anything  which  defeats  or  impairs  the  one, 
necessarily  suspends  or  extinguishes  the  other.  It  is  accordingly  well  set- 
tled on  the  one  hand,  that  the  creditor  cannot  claim  a  dividend  from  the 
estate  of  a  bankrupt  lessee,  on  account  of  rent  which  has  not  yet  accrued ; 
and  on  the  other,  that  his  right  of  personal  recourse  against  the  lessee  him- 
self, is  not  impaired  by  the  discharge  of  the  latter  under  the  certificate.  The 
law  was  so  held  in  the  principal  case,  as  to  a  discharge  in  bankruptcy,  and 
has  been  repeatedly  applied  in  this  country  with  regard  to  proceedings  in 
insolvency,  as  well  as  bankruptcy.  Lansing  v.  Prendergast,  9  Johnson,  27; 
Hamilton  v.  Atherton,  1  Ashmead,  67  ;  Warder  v.  Simpson,  2  Wharton's 
Digest,  63.     Bosler  v.  Kuhn,  8  W.  &  S.  183. 

But  although  a  lessee  cannot  set  up  his  discharge  as  a  bankrupt,  as  a 
release  from  the  obligation  of  future  and  accruing  rent,  yet  there  are  other 
grounds  on  which  he  may  rely  for  protection  in  certain  cases,  and  to  a  lim- 
ited extent,  irrespectively  of  the  discharge ;  and  whether  he  be  discharged 
or  not.  Nothing  is  better  settled,  than  that  the  assignment  of  a  term  with 
the  assent  of  the  lessor,  not  only  casts  the  burden  of  the  rent  on  the  assig- 
nee, but  completely  exonerates  the  lessee,  unless  he  has  given  an  express 
covenant  for  its  payment.  And  it  was  held  in  Wadham  v.  Marlow,  supra, 
that  where  the  liability  of  the  lessee  is  founded  on  the  acceptance  of  the 
premises,  subject  to  the  reddendum,  and  not  on  an  express  covenant,  he  may 
set  up  the  transfer  of  the  term  to  the  assignees  under  the  commission,  as  a 
bar  to  an  action  for  future  rent,  without  proving  any  actual  assent  on  the 
part  of  the  lessor,  because  every  man's  assent  is  to  be  presumed  to  the  pas- 
sage of  an  estate  by  operation  of  law,  and  by  virtue  of  a  legislative  enactment. 
But  the  further  distinction  was  subsequently  taken,  both  in  England  and 
this  country,  that  although  the  assent  of  the  lessor  is  to  be  presumed  under 
these  circumstances,  that  of  the  assignees  is  not,  for  as  the  object  of  the 
assignment  is  to  pass  a  beneficial  interest  in  the  bankrupt's  property,  with  a 
view  to  the  payment  of  his  debts,  and  as  the  rights  and  obligations  of  a 
lease  are  inseparably  connected,  the  law  will  not  cast  them  upon  the  assignees, 
unless  they  show  their  willingness  to  accept  the  burden  with  the  benefit. 
It  is  accordingly  held,  that  unless  the  assignees  enter  on  the  demised  pre- 
mises, or  take  some  other  step  to  evince  their  assent  to  the  passage  of  the 
term,  under  the  general  operation  of  the  assignment,  and  authorize  the  land- 
lord to  treat  them  as  his  tenants,  the  liability  of  the  lessee  will  con- 
tinue on  the  same  footing  after,  as  before  the  bankruptcy.  And  even 
when  the  interest  of  the  lessee  in  the  lease  passes  to  the  assignees,  he  will 
still  be  bound  by  his  express  covenants,  and  only  exonerated  from  those 
which  are  implied  by  the  law.     Supra. 

The  principles  which  govern  the  operation  of  the  bankrupt  laws,  on  the 
liability  of  the  bankrupt,  apply  in  general  to  the  insolvent  laws  passed  at  dif- 
ferent periods,  by  the  states  of  this  country.  As  a  general  rule,  no  demands 
are  barred  by  a  discharge  under  these  laws,  which  are  contingent  and  execu- 
tory, or  which  have  not  the  character  of  present  debts ;  Frost  v.  Carter,  1 
Johnson's  Cases,  73  ;  Buel  v.  Gordon,  6  Johnson,   126;  The  Mechanics' 

Vol.  I.— 50 


786  smith's   leading   cases. 

Bank  V.  Capron,  15  id.  367.  It  necessarily  follows,  that  tlie  discharge  of 
a  lessee  as  an  insolvent,  will  not  exonerate  his  person  or  estate  from  future 
rent,  except  in  so  far  as  he  can  bring  his  case  withia  the  operation  of  the 
doctrine  laid  down  in  Wadham  v.  Marlow,  and  set  up  the  transfer  of  his 
interest  in  the  term,  to  the  insolvent  assignee,  as  a  bar  to  the  implied  obli- 
tion  of  the  lease. 

The  bearing  of  the  doctrine  held  in  Auriol  v.  Mills,  in  cases  of  bank- 
ruptcy, is  necessarily  dependent  upon  the  purport  and  provisions  of  the  par- 
ticular bankrupt  act  under  which  each  case  arises,  for  as  the  operation  of 
every  such  law  on  tlie  contract  of  the  parties  is  purely  arbitrary,  and 
dependent  upon  the  will  of  the  legislature  by  which  it  is  enacted, 
it  may  be  so  worded  as  to  discharge  executory  or  contingent  obligations, 
as  well  as  those  which  are  certain  and  executed.  Thus,  the  system  of 
bankruptcy  which  now  prevails  in  England,  under  the  statute  6  Geo.  4, 
varies  from  that  which  existed  at  the  period  of  the  decision  in  Auriol  v. 
Mills,  and  entitles  the  creditor  to  prove  future  and  uncertain  claims  against 
the  estate,  while  it  exonerates  the  bankrupt  from  liability,  for  all  demands 
which  are  thus  open  to  proof.  The  fifth  section  of  the  recent  bankrupt  act 
this  country,  passed  August  19,  1811,  followed  the  provisions  of  the  English 
statute,  by  declaring  that  <'all  creditors  whose  debts  are  not  due  and  payable 
until  a  future  day,  all  annuitants,  holders  of  bottomry  and  respondentia  bonds, 
holders  of  policies  of  insurance,  sureties,  endorsers,  bail,  or  other  persons, 
having  uncertain  or  contingent  demands  against  such  bankrupt,  should  be 
permitted  to  come  in  and  prove  such  debts  or  claims,  under  the  act,  and 
should  have  a  right,  when  their  debts  and  claims  became  absolute,  to  have 
the  same  allowed  them."  And  it  was  further  provided,  by  another  section  of 
the  same  act,  that  the  certificate  of  the  bankrupt  should  be  a  bar  to  all  debts 
which  were  provable. 

There  can  be  little  doubt  that  the  object  of  the  legislature  in  passing  this 
act,  was  to  give  the  same  full  and  liberal  relief  to  the  bankrupt,  as  had  been 
given  by  the  6  G-eo.  4.  Agreeably  to  the  construction  given  to  the  English 
statute,  all  demands  which  can  by  possibility  be  proved  under  the  commis- 
sion, will  be  barred  by  the  certificate  ;  and  a  surety  cannot  recover,  for  a  pay- 
ment made  after  the  bankruptcy  of  the  principal  when  the  debt  was  due 
before ;  Filbey  v.  Lawford,  3  M.  &  G.  468 ;  Jackson  v.  Magee,  3  Q.  B.  48; 
or  even  when  it  was  not,  if  it  could  notwithstanding  have  been  proved  by  the 
creditor.  It  was  held  accordingly,  in  Spalding  v.  Dixon,  21  Vermont,  45, 
and  Stilton  v.  Pease,  10  Missouri,  473,  that  the  true  construction  of  the 
act  of  Congress  is,  that  future  and  contingent  demands,  of  every  descrip- 
tion, are  provable  against  the  estate  of  the  bankrupt,  and  barred  by  the 
grant  of  the  certificate.  A  similar  construction  was  adopted  in  Hardy  v. 
Carter,  8  Humphreys,  153,  and  a  surety  refused  permission  to  recover 
against  a  bankrupt  principal,  for  'payments  made  subsequently  to  the  dis- 
charge of  the  latter.  But  it  has  at  the  same  time  been  decided  both  here 
and  in  England,  that  although  a  contingent  demand  may  be  proved  by  the 
creditor,  and  will  consequently  be  extinguished,  yet  that  this  does  not  hold 
good,  unless  the  demand  is  actually  in  existence,  and  that  a  distinction  must 
be  taken  between  a  contingent  demand,  and  a  contingency,  whether  a  demand 
will  exist;  Woodard  v.  Herbert,  24  Maine,  358.     It  was  accordingly  de- 


MILLS     V.     AURIOL.  787 

cided  in  this  case,  that  a  surety  might  recover  against  a  bankrupt  principal, 
for  the  default  of  the  latter  in  not  appearing  agreeably  to  the  condition  of  a 
bond,  given  by  the  surety  for  his  appearance,  although  the  default  did  not 
happen  until  after  bankruptcy,  because  until  default,  the  demand  was  not  only 
contingent,  but  it  was  a  contingency,  whether  there  would  ever  be  a  demand. 
The  same  principles  were  applied  in  M'Dougal  v.  Paton,  8  Taunt.  584,  where 
the  liability  against  which  the  surety  sought  to  be  protected,  grew  out  of  a 
stipulation  for  the  performance  of  collateral  covenants,  which  were  not  broken 
at  the  time  of  the  bankruptcy.  Nor  will  a  claim  against  a  co-surety  for  con- 
tribution, be  barred  by  his  discharge  as  a  bankrupt,  before  the  debt  becomes 
due  by  the  principal,  for  until  then,  there  is  no  legal  or  equitable  demand 
on  which  the  discharge  can  operate,  and  it  is  wholly  uncertain  whether  one 
will  ever  come  into  existence.  As  soon,  however,  as  such  a  debt  becomes 
due,  an  equitable  obligation  attaches  to  all  the  sureties  to  contribute  to  its 
payment,  which  may  well  be  barred  by  a  discharge  in  bankruptcy.  An 
opposite  determination  in  Goss  v.  Gibson,  8  Humphreys,  197,  seems  incon- 
sistent with  principle,  and  can  only  be  reconciled  with  the  decision  of  the 
same  court,  in  Hardy  v.  Carter,  on  the  ground  of  a  distinction  between  the 
equitable  rights  of  sureties  against  each  other,  and  against  the  principal, 
which  has  no  real  or  well  founded  existence. 

Although  no  express  provision  was  made  in  the  recent  bankrupt  act  of 
the  United  States,  with  reference  to  future  and  accruing  rent,  corresponding 
to  the  provisions  of  the  English  act,  or  which  could  take  it  out  of  the  terms 
of  the  general  provision,  that  all  future  and  contingent  demands  may  be 
proved  by  the  creditor,  yet  it  has  been  repeatedly  held,  not  to  be  within  the 
scope  of  the  act,  either  as  it  regards  proof  or  discharge.  Thus,  it  was  de- 
cided in  Steinmetz  v.  Ainslie,  4  Denio,  573 ;  Bosler  v.  Kuhn,  8  W.  &  S. 
183;  and  Prentiss  v.  Kingley,  10  Barr,  120,  that  rent,  whether  reserved  on 
a  grant  in  fee,  or  for  years,  and  whether  secured  by  an  express  covenant,  or 
dependent  merely  on  the  reddendum,  is  wholly  without  the  terms  of  the 
fifth  section  of  the  act,  and  will  not  be  barred  by  the  discharge  of  the  lessee 
as  a  bankrupt.  No  doubt  can  be  entertained  of  the  soundness  of  these  deci- 
sions :  for  apart  from  the  unreasonableness  of  supposing  that  the  legisla- 
ture intended  to  abrogate  one  side  of  an  executory  contract,  while  leaving 
the  other  in  full  force,  the  case  does  not  fall  within  the  terms  of  the  act. 
Kent  is,  it  is  true,  so  far  a  demand,  that  a  release  of  all  deifiands  will  extin- 
guish a  rent,  but  it  is  more  than  a  demand,  it  is  an  accruing  profit  issuing 
out  of  the  realty,  and  cannot  be  regarded  as  a  present  demand,  in  the  strict 
legal  sense  of  the  term,  even  when  there  is  an  express  covenant  for  its  pay- 
ment as  it  falls  due.  "  A  rent  service,"  said  Gibson,  C.  J.,  in  Bosler  v. 
Kuhn,  "  is  not  a  debt ;  and  a  covenant  to  pay  it  is  not  a  covenant  to  pay  a 
debt :  it  is  a  security  for  the  performance  of  a  collateral  act.  The  annual 
payments  spring  into  existence  and  for  the  first  time  become  debts  when 
they  are  demandable ;  for  while  they  are  growing  due  the  landlord  has  no 
property  in  any  thing  distinct  from  the  corpus  of  the  rent,  or  the  realty  of 
which  they  are  the  produce;  and  the  fruit  must  be  severed  from  the  tree 
which  bears  it,  before  it  can  become  personal  property  and  a  chose  in  action. 
A  debt  is  an  entire  thing,  though  it  be  payable  by  instalments;  and  to 
admit  it  to  be  proved,  when  thus  constituted,  would  require  the  instalment 


788  smith's  leading   cases. 

to  be  combined  by  a  penalty,  such  as  formerly  was  called  in  aid  of  an 
annuitant ;  or  else  to  be  consolidated  by  the  contract."  It  is,  therefore,  evi- 
dent, that  the  construction  put  on  the  former  English  bankrupt  act,  in  the 
principal  case,  is  equally  applicable  to  that  which  existed  recently  in  this 
country,  and  that  future  rent  is  not  such  a  debt  or  demand,  as  can  be 
proved  by  the  creditor  or  extinguished  by  the  certificate  of  discharge  of  the 
bankrupt,  within  the  meaning  of  either  of  these  acts. 

A  much  narrower  construction  has  been  given  in  some  of  the  cases,  to 
the  provisions  of  the  act  of  August  19,  1841,  which  declare  that  the  claims 
of  sureties,  endorsers,  and  all  other  holders  of  future  and  contingent  demands 
may  be  admitted  to  proof,  and  that  all  demands  which  can  be  proved,  shall  be 
barred,  than  that  stated  above;  and  it  has  been  held,  in  some  instances,  that  a 
surety  cannot  prove  his  demand  against  the  principal,  until  he  has  reduced 
it  to  certainty  by  payment,  and  in  others,  that  if  he  can,  it  is  still  optional 
with  him  to  do  so,  and  that  it  will  not  be  barred  unless  actually  proved.  The 
latter  construction  was  adopted  in  Wells  v.  Mann,  17  Vermont,  503 ;  and 
the  former  in  McMullin  v.  The  Bank  of  Penn  Township,  2  Barr,  343 ;  Cake 
V.  Lewis,  8  id.  498,  and  Pogue  v.  Joyner,  1  English,  241.  Both  construc- 
tions, however,  seem  equally  inadmissible ;  the  one,  because  the  act  ex- 
pressly declares,  that  all  debts  which  may  be  proved,  shall  be  barred;  and 
the  other,  because  it  renders  the  act  unmeaning,  by  making  a  provision  for 
the  proof  of  contingent  debts  inapplicable  until  they  become  certain,  and  is, 
moreover,  founded  upon  an  interpretation  of  the  act  of  6  Geo.  4,  which  has 
been  rejected  by  the  English  Courts. 

It  is  well  settled,  that  when  a  cause  of  action  is  laid  in  tort,  although 
founded  in  contract,  it  will  not  be  barred  by  a  certificate  in  bankruptcy,  and 
this,  although  the  plaintiff  had  an  election  to  proceed  either  in  tort  or  con- 
tract ;  Hughes  v.  Oliver,  8  Barr,  426 ;  Williamson  v.  Dickens,  5  Iredell, 
289.  When,  however,  a  demand  founded  in  tort,  has  once  passed  into  a 
judgment,  it  acquires  the  character  of  a  debt,  and  as  such,  may  be  discharged. 
But  to  produce  this  effect,  the  judgment  must  actually  have  been  entered 
before  the  bankruptcy,  and  a  mere  liquidation  of  the  damages  by  a  verdict 
or  award  of  arbitrators,  will  not  be  sufficient.  Crouch  v.  Grridley,  6  Hill, 
250. 

H. 


MASTER    V.    MILLER.  789 


='=M  ASTER   V.   MILLER.  [*458] 

TRINITY.— 31  GE0.3.— K.  B.  &  CAM.  SCACC. 

[reported  4.  T.  R.  320,  and  2  hen.  bl.  140.] 

An  unauthorized  alteration  of  the  date  of  a  bill  of  exchange,  after  acceptance, 
whereby  the  payment  would  be  accelerated,  avoids  the  instrument,  and  no  action 
can  be  afterwards  brought  upon  it,  even  by  an  innocent  holder  for  a  valuable  con- 
sideration.f 

The  first  count  in  this  declaratioa  was  in  the  usual  form,  by  the  iadorsees 
of  a  bill  of  exchange  against  the  acceptor;  it  stated  that  Peel  and  Co.,  on 
the  20th  of  March,  1788,  drew  a  bill  for  974/.  10s.  on  the  defendant,  pay. 
able  three  months  after  date  to  Wilkinson  and  Cooke,  who  indorsed  to  the 
plaintiffs.  The  second  count  stated  the  bill  to  have  been  drawn  on  the  26th 
of  March.  There  were  also  four  other  counts  :  for  money  paid,  laid  out, 
and  expended ;  money  lent  and  advanced  ;  money  had  and  received ;  and 
on  an  account  stated.  The  defendant  pleaded  the  general  issue  ;  on  the 
trial  of  which  a  special  verdict  was  found. 

It  stated,  that  Peel  and  Co.,  on  the  26th  March,  1788,  drew  their  bill  on 
the  defendant,  payable  three  months  after  date  to  Wilkinson  and  Cooke, 
for  974/.  10s.,  "  which  said  bill  of  exchange,  made  by  the  said  Peel  and 
Co.,  as  the  same  hath  been  altered,  accepted,  and  written  upon,  as  here- 
after mentioned,  is  now  produced,  and  read  in  evidence  to  the  said  jurors, 
and  is  now  expressed  in  the  words  and  figures  following;  to  wit,  'June 
23rd,  974/.  10s.,  Manchester,  March  20,  1788,  three  months  after  date 
pay  to  the  order  of  Messrs.  Wilkinson  and  Cooke  974/.  10s.,  received, 
as  advised.  Peel,  Yates,  and  Co.  To  Mr.  Cha.  Miller,  C.  M.,  23rd 
June,  1788.'  That  Peel  and  Co.  delivered  the  said  bill  to  Wilkinson 
and  Cooke,  which  the  defendant  afterwards  and  before  the  alteration  of  the 
bill  hereinafter  mentioned  accepted,  that  Wilkinson  and  Cooke  afterwards 
indorsed  the  said  bill  to  the  plaintiffs,  for  a  valuable  consideration  r-^  irni 
*before  that  time  given,  and  paid  by  them  to  Wilkinson  and  Cooke  L  J 
for  the  same.  That  the  said  bill  of  exchange,  at  the  time  of  making  thereof 
and  at  the  time  of  the  acceptance,  and  when  it  came  to  the  hands  of  Wilkin- 
son and  Cooke  as  aforesaid,  bore  date  on  the  20th  day  of  March,  1788,  the  day 
of  making  the  same  ;  and  that  after  it  so  came  to  and  whilst  it  remained  in  the 
hands  of  Wilkinson  and  Cooke,  the  said  date  of  the  said  bill,  without  the  au- 
thority or  privity  of  defendant,  was  altered  by  some  person  or  persons  to  the 
jurors  aforesaid  unknown,  from  the  20th  day  of  March,  1788,  to  the  20th  day 

t  See  Hutchins  v.  Scott,  2  Mee.  &  W.  809,  where  an  agreement  which  had  been 
altered  wliile  in  the  custody  of  the  person  producing  it,  was  held  admissible  in  evidence 
for  some  purposes. 


790  smith's  leading  cases. 

of  March,  1788.  That  the  words  '  June  23/  at  the  top  of  the  bill,  were  there 
iuscrted  to  mark  that  it  would  become  due  and  payable  on  the  23d  of  June, 
next  after  the  date ;  and  that  the  alteration  hereinbefore  mentioned,  and 
the  blot  upon  the  date  of  the  bill  of  exchange,  now  produced  and  read  in 
evidence,  were  on  the  bill  of  exchange,  when  it  was  carried  to  and  came  into 
the  hands  and  possession  of  the  plaintiffs.  That  the  bill  of  exchange  was 
on  the  23d  of  Juno,  and  also  on  the  28th  of  June,  1788,  presented  to  the 
defendant  for  payment;  on  each  of  which  days  respectively  he  refused  to 
pay."  The  verdict  also  stated  that  the  bill  so  produced  to  the  jury  and 
read  in  evidence  was  the  same  bill  upon  which  the  plaintiffs  declared,  &c. 

This  ease  was  argued  in  Hilary  term  last,  by  Wood  for  the  plaintiffs,  and 
Mingay  for  the  defendant ;  and  again  on  this  day  by  Chambers  for  the 
plaintiffs,  and  Erskine  for  the  defendant. 

For  the  plaintiffs  it  was  contended,  that  they  were  entitled,  notwithstand- 
ing the  alteration  in  the  bill  of  exchange,  to  recover,  according  to  the  truth 
of  the  case,  which  is  set  forth  in  the  second  count  of  the  declaration,  namely, 
upon  a  bill  dated  the  26th  March ;  which  the  special  verdict  finds  was  in 
point  of  fact  accepted  by  the  defendant.  More  especially  as  it  is  clear  that 
the  plaintiffs  are  holders  for  a  valuable  consideration,  and  had  no  concern 
whatever  in  the  fraud  that  was  meditated,  supposing  any  such  appeared. 
The  only  ground  of  objection  which  can  be  suggested  is  upon  the  rule  of 
law  relative  to  deeds,  by  which  they  are  absolutely  avoided,  if  altered  even 
by  a  stranger  in  any  material  part,  and  upon  a  supposed  analogy  between 
r*irm  ^^^°^^  instruments  and  bills  of  exchange  ;  but  upon  investigating 
L  -I  *the  grounds  on  which  the  rule  stands  as  applied  to  deeds,  it  will 
be  found  altogether  inapplicable  to  bills  :  and  if  that  be  shown,  the  objection 
founded  on  the  supposed  analogy  between  them  must  fall  with  it.  The 
general  rule  respecting  deeds  is  laid  down  in  Pigot's  case, (a)  where  most  of 
the  authorities  are  collected ;  from  thence  it  appears,  that  if  a  deed  be 
altered  in  a  material  point,  even  by  a  stranger,  without  the  privity  of  the 
obligee,  it  is  thereby  avoided ;  and  if  the  alteration  be  made  by  the  obligee, 
or  with  his  privity,  even  in  an  immaterial  part,  it  will  also  avoid  the  deed. 
Now  that  is  confined  merely  to  the  case  of  deeds,  and  does  not  in  the  terms 
or  principle  of  it  apply  to  any  other  instruments  not  executed  with  the  same 
solemnity.  There  arc  many  forms  requisite  to  the  validity  of  a  deed,  which 
were  originally  of  great  importance  to  mark  the  solemnity  and  notoriety  of 
the  transaction  ;  and  on  that  account  the  grantees  always  were,  and  still  are, 
entitled  to  many  privileges  over  the  holders  of  other  instruments.  It  was 
therefore  reasonable  enough  that  the  party  in  whose  possession  it  was  lodged, 
should,  on  account  of  its  superior  authenticity,  be  bound  to  preserve  it  entire 
with  the  strictest  attention,  and  at  the  peril  of  losing  the  benefit  of  it  in 
the  case  of  any  material  alteration  even  by  a  stranger ;  and  that  he  is  the 
better  enabled  to  do  from  the  nature  of  the  instrument  itself,  which,  not 
being  of  a  negotiable  nature,  is  not  likely  to  meet  with  any  mutilation,  unless 
through  the  fraud  or  negligence  of  the  owner;  whereas  bills  of  exchange  are 
negotiable  instruments,  and  are  perpetually  liable  to  accidents  in  the  course 
of  changing  hands,  from  the  inadvertence  of  those  by  whom  they  are  nego- 
tiated, without  any  possibility  of  their  being  discovered  by  innocent  indorsees, 

(a)  1 1  Co.  27. 


MASTER    V.     MILLER.  791 

who  are  ignorant  of  the  form  in  which  they  were  originally  drawn  or  accept- 
ed;  and  the  present  is  a  strong  instance  of  that;  for  the  plaintiffs  cannot 
be  said  to  be  guilty  of  negligence  in  not  inquiring  how  the  blot  came  on  the 
bill,  which  mere  accident  might  have  occasioned.  That  the  same  reasons, 
upon  which  the  decisions  of  the  courts  upon  deeds  have  been  grounded,  will 
not  support  such  judgments  upon  bills,  will  best  appear  by  referring  to  the 
authorities  themselves.  When  a  deed  is  pleaded,  there  must  be  a  iwofcrt 
in  curiam,  unless,  as  in  Read  v.  Brookman,(/>)  it  be  lost  or  destroyed  by 


accident,  which  must  however  be  stated  in  *the  pleadings.  The  rea- 


[*461] 


son  of  which  is,  that  anciently  the  deed  was  actually  brought  into 
court  for  the  purpose  of  inspection ;  and  if,  as  is  said  in  10  Co.  92,  b.  the 
judges  found  that  it  had  been  rased  or  interlined  in  any  material  part,  they 
adjudged  it  to  be  void.  Now  as  that  was  the  reason  why  a  deed  was 
required  to  be  pleaded  with  a  profert,  and  as  it  never  was  necessary  to  make 
a  profert  of  a  bill  of  exchange  in  pleading,  it  furnishes  a  strong  argument 
that  the  reason  applied  solely  to  the  case  of  deeds.  So  deeds,  in  which  were 
erasures,  were  held  void,  because  they  appeared  on  the  fJice  of  them  to  be 
suspicious.  13  Vin.  Abr.  tit.  Faits,  37,  38  ;  Bro.  Abr.  Faits,  pi.  11,  refer- 
ring to  44  Edw.  3,  42.  Nor  could  the  supposition  of  fraud  have  been  the 
ground  on  which  that  rule  was  founded  with  respect  to  deeds ;  for  in  Moor, 
35,  pi.  116,  a  deed  which  had  been  rased  was  held  void,  although  the  party 
himself  who  made  it  had  made  the  erasure ;  which  was  permitting  a  party 
to  avail  himself  of  his  own  fraud  :  but  it  is  impossible  to  contend  that  the 
rule  can  be  carried  to  the  same  extent  as  to  bills  ;  nor  is  it  denied  but  that 
if  the  blot  here  had  been  made  by  the  acceptor  himself,  he  would  still  have 
been  bound.  In  Keilw.  162,  it  is  said  that  if  A.  be  bound  to  B.  in  20?. 
and  B.  rase  out  101.  all  the  bond  is  void,  although  it  is  for  the  advantage 
of  the  obligor;  and  even  where  an  alteration  in  a  deed  was  made  by  the 
consent  of  both  the  parties,  still  it  was  held  to  avoid  it.  2  Rol.  Abr.  29, 
letter  U.  pi.  5.  (Lord  Kcnyon  observed  that  there  had  been  decisions  to 
the  contrary  since.)  Fraud  could  not  be  the  principle  on  which  those  cases 
were  determined  ;  whereas  it  is  the  only  principle  on  which  the  rule  con- 
tended for  can  be  held  to  extend  to  bills  of  exchange,  but  which  is  rebutted 
in  the  present  case  by  the  facts  found  in  the  special  verdict.  According  to 
the  same  strictness,  where  a  mere  mistake  was  corrected  in  a  deed,  and  not 
known  by  whom,  it  was  held  to  avoid  it.  2  Rol.  Abr.  29,  pi.  6  ;  and  it 
does  not  abate  the  force  of  the  argument  that  the  law  is  relaxed  in  these 
respects,  even  as  to  deeds,  for  the  question  still  remains,  whether  at  any 
time  bills  of  exchange  were  construed  with  the  same  rigour  as  deeds  ?  The 
principle  upon  which  all  these  cases  relative  to  deeds  were  founded  was, 
that  nothing  could  work  any  alteration  in  a  deed,  except  another  deed  of 
equal  authenticity;  and  as  the  party  who  had  possession  of  *the  ^^Hp.^-i 
deed  was  bound  to  keep  it  securely,  it  might  well  be  presumed  that  >-  ^J 
any  material  alteration  even  by  a  stranger  was  with  his  connivance,  or  at 
least  through  his  culpable  neglect.  In  many  of  the  cases  upon  the  altera- 
tion of  deeds,  the  form  of  the  issue  has  weighed  with  the  Court ;  as  in  1 
Rol.  Rep.  40,  (which  is  also  cited  in  Figot's  case,  11  Co.  27,)  and  Michael 
V.   Scockwith,  Cro.  El.  120,  in  both  wliich  cases  the  alteration  was  after 

(t)  .3T.  R.  151. 


792  smith's    leading  cases. 

plea  pleaded ;  and  on  that  ground  the  Court  held  it  was  still  to  be  consid- 
ered as  the  deed  of  the  party  on  non  est  factum.  Now  the  form  of  the 
issue  in  actions  upon  deeds  and  those  upon  bills  is  very  different :  in  the 
one  case,  the  issue  simply  is,  ichcther  it  is  the  deed  of  tlie  party ^  which  goes 
to  the  time  of  the  plea  pleaded  ?  as  appears  from  the  case  before  cited,  and 
from  5  Co.  119,  b.  and  Dy.  59  ;  but  here  the  issue  is,  tohether  the  defendant 
promised,  at  the  time  of  the  acceptance,  to  -pay  the  contents  ?  The  form  of 
the  issue  is  upon  his  promise,  arising  by  implication  of  law  from  the  act  of 
acceptance,  which  is  found  as  a  fact  by  the  special  verdict  agreeable  to  the 
bill  declared  on  in  the  second  count ;  and  in  no  instance,  where  an 
agreement  is  proved  merely  as  evidence  of  a  promise,  is  the  party  pre- 
cluded from  showing  the  truth  of  the  case.  Not  only  therefore  the 
forms  of  pleading  are  different  in  the  two  cases,  but  the  decisions  which 
have  been  made  upon  deeds,  from  whence  the  rule  contended  for 
as  to  erasures  and  alterations  is  extracted,  are  altogether  inapplicable  to 
bills.  The  reasons  for  such  rigorous  strictness  in  the  one  case,  do  not  exist 
in  the  other.  On  the  contrary,  all  the  cases  upon  bills  have  proceeded 
upon  the  most  liberal  and  equitable  principles  with  respect  to  innocent 
holders  for  a  valuable  consideration.  The  case  of  Minet  v.  Gibson(a)  goes 
much  farther  than  the  present :  for  there  this  court,  and  afterwards  the 
House  of  Lords,  held  that  it  was  competent  to  inquire  into  circumstances 
extraneous  to  the  bill,  in  order  to  arrive  at  the  truth  of  the  transaction 
between  the  parties ;  although  such  circumstances  operated  to  establish  a 
different  contract  from  that  which  appeared  upon  the  face  of  the  bill  itself  j 
whereas  the  evidence  given  in  this  case,  and  the  facts  found  by  the  special 
verdict,  are  in  order  to  show  what  the  bill  really  was ;  which  it  is  compe- 
tent for  these  parties  to  do  against  whom  no  fraud  can  be  imputed,  if  any 
*zirQi  6xist.  If  the  blot  had  fallen  on  the  paper  *by  mere  accident,  it 
L  -'  cannot  be  pretended  that  it  would  have  avoided  the  bill ;  and  -non 
constat  upon  this  finding  that  it  did  not  so  happen.  Even  if  felony  were 
committed  by  a  third  person,  through  whose  hands  the  bill  passed,  although 
that  party  could  not  recover  upon  it  himself,  yet  his  crime  shall  not  affect  an 
innocent  party,  to  whom  the  bill  is  endorsed  or  delivered  for  a  valuable  con- 
sideration. In  Miller  v.  Race,(i)  where  a  bank-note  had  been  stolen,  and 
afterwards  passed  bona  fide  to  the  plaintiff,  it  was  held  that  he  might  reco- 
ver it  in  trover  against  the  person  who  had  stopped  it  for  the  real  owner. 
And  the  same  point  was  held  in  Peacock  v.  Rhodes,(c)  where  the  bill  was 
payable  to  order.  Again,  in  Price  v.  Neale,(f7)  it  was  held  that  an  acceptor, 
who  had  paid  a  forged  bill  to  an  innocent  indorsee,  could  not  recover  back 
the  money  from  him.  Now  if  it  be  no  answer  to  an  action  upon  a  bill 
against  the  acceptor  to  show  that  it  was  a  forgery  in  its  original  making  by 
a  third  person's  having  feigned  the  hand-writing  of  the  drawer,  still  less 
ought  any  subsequent  attempt  at  forgery,  even  if  that  had  been  found  which 
is  not,  to  weigh  against  an  innocent  holder.  But  it  would  have  been  im- 
possible to  have  recovered  in  any  of  these  cases  if  the  deed  had  been  forged 
in  any  respect,  even  by  strangers  to  it ;  which  shows  that  these  several  in- 
struments cannot  be  governed  by  the  same  rules.     And  so  little  have  the 

(n)  3  T.  R.  481,  in  B.  R.,  and  1  H.  Bl.  569,  in  Dom.  Proc.  (6)  1  Burr.  452. 

(c)  Dougl.  633.  {(1)  3  Burr.  1354. 


MASTER    V.     MILLER.  793 

forms  of  bills  of  exchange  and  notes  been  observed,  when  put  in  opposition 
to  the  truth  of  the  transaction,  that  in  Russell  v.  Langstaffe(c)  the  court 
held,  in  order  to  get  at  the  justice  of  the  case,  that  a  person,  who  had 
indorsed  his  name  on  blank  checks  which  he  had  entrusted  to  another,  was 
liable  to  an  indorsee  for  the  sums  of  which  the  notes  were  afterwards  drawn  j 
and  yet  the  form  of  pleading  supposes  the  note  to  have  been  a  perfect  in- 
strument, and  drawn  before  the  indorsement.  But  the  case  which  is  most 
immediately  in  point  to  the  present,  is  that  of  Price  v.  Shute,  E.  33  Car.  2, 
in  B.  R. ;(/)  there  a  bill  was  drawn  payable  the  1st  of  January;  the  person 
upon  whom  it  was  drawn  accepted  it  to  be  paid  the  1st  of  March ;  the 
holder,  upon  the  bill's  being  brought  back  to  him,  perceiving  this  enlarged 
acceptance,  struck  out  the  1st  of  March,  and  put  in  the  1st  of  January  j 
and  then  sent  the  bill  to  be  paid,  which  the  acceptor  refused ;  whereupon 
the  payee  struck  out  the  1st  of  January,  and  put  in  *the  1st  of  j-^tnAn 
March  again :  and  in  an  action  brought  on  this  bill,  the  question  L  -' 
was,  whether  these  alterations  did  not  destroy  it  ?  and  it  was  ruled  they  did 
not.  This  case  therefore  has  settled  the  doubt ;  and  having  never  been  im- 
peached, but  on  the  contrary  recognised,  as  far  as  general  opinion  goes,  by 
having  been  inserted  in  every  subsequent  treatise  upon  the  subject,  it  seems 
to  have  been  acted  on  ever  since.  And  it  would  be  highly  mischievous  if 
the  law  were  otherwise :  for  however  negligent  the  owner  of  a  deed  may  be 
supposed  to  be,  who  lets  it  out  of  his  possession,  the  holder  of  a  bill  of 
exchange  is  by  the  ordinary  course  of  such  transactions  obliged  to  trust  it, 
even  in  the  hands  of  those  whose  interest  it  is  to  avail  themselves  of  this 
sort  of  objection.  For  it  is  most  usual  for  the  bill  to  be  left  for  acceptance, 
and  afterwards  for  payment,  in  the  hands  of  the  acceptor,  who  may  be 
tempted  to  put  such  a  blot  on  the  date  as  may  not  be  observed  at  the  time, 
through  the  confidence  of  the  parties.  But  even  if  the  alteration  should 
be  considered  as  having  destroyed  the  bill,  why  may  not  evidence  be  given 
of  its  contents,  upon  the  same  principle  as  governed  the  case  of  Read  v. 
Brokman  ?(f/)  where  it  was  held  that  pleading  that  a  deed  is  lost  by  time 
and  accident,  supersedes  the  necessity  of  a  profert.  But  at  any  rate  the 
plaintifi"3  are  entitled  to  recover  on  the  general  counts  for  money  paid,  and 
money  had  and  received,  on  the  authority  of  Tatlock  v.  Harris  ;(7i)  for 
though  it  is  not  expressly  stated  that  so  much  money  was  received  by  the 
defendant,  yet  that  is  a  necessary  inference  from  the  fact  of  acceptance 
which  is  found. 

For  the  defendant  it  was  contended,  that  the  broad  principle  of  law  was, 
that  any  alteration  of  a  written  instrument  in  a  material  part  thereof, 
avoided  such  instrument;  and  that  the  rule  was  not  merely  confined  to 
deeds,  though  it  happened  that  the  illustration  of  it  was  to  be  found  among 
the  old  cases  upon  deeds  only  because  formerly  most  written  undertakings 
and  obligations  were  in  that  form.  This  principle  of  law  was  founded  in 
sound  sense;  it  was  calculated  to  prevent  fraud,  and  deter  men  from  tam- 
pering with  written  securities  :  and  it  would  be  directly  repugnant  to  the 
policy  of  such  a  law  to  permit  the  holder  of  a  bill  to  attempt  a  fraud  of 
this  kind  with  impunity;  which  would  be  the  case,  if,  after  being  detected 

(e)  Dougl.  514.  (/)  2  Moll.  c.  10,  s.  28.  i,g)  3  T.  R.  151. 

(A)  3  T.  R.  174. 


794  smith's   leading    cases. 

r^SCi  ^°  ^^^^  attempt,  he  were  *not  to  be  in  a  worse  situation  than  he  was 
•-  J  before.  If  any  difference  were  to  be  made  between  bills  of  exchange 
and  deeds,  it  should  rather  be  to  enforce  the  rule  with  greater  strictness  as 
to  the  former;  for  it  would  be  strange  that,  because  they  were  more  open 
to  fraud  from  the  circumstance  of  passing  through  many  hands,  the  law 
should  relax  and  open  a  wider  door  to  it  than  in  the  case  of  deeds,  where 
fraud  was  not  so  likely  to  be  practised.  The  principle  laid  down  in  Pigot's 
case(<)  is  not  disputed  as  applied  to  deeds.  But  the  first  answer  attempted 
to  be  given  is,  that  the  rule  as  to  deeds  is  sui  generis,  and  does  not  extend 
to  other  instruments  of  an  inferior  nature,  because  it  arises  from  the  solemn 
sanction  attending  the  execution  of  instruments  under  seal.  As  to  this,  it 
is  sufficient  to  say  that  no  such  reason  is  suggested  in  any  of  the  books; 
but  the  rule  stands  upon  the  broad  ground  of  policy,  which  applies  at  least 
as  strongly  to  bills  as  to  deeds,  for  the  reason  above  given.  Then  it  is  said 
that  there  is  a  material  distinction  between  the  several  issues  in  the  two 
cases.  But  the  difference  is  more  in  words  than  in  sense;  the  substance  of 
the  issue  in  both  cases  is,  whether  in  point  of  law  the  party  be  liable  to 
answer  upon  the  instrument  declared  on  ?  and  therefore  any  matter  which 
either  avoids  it  ab  initio,  or  goes  in  discharge  of  it,  may  be  shown  as  much 
in  the  one  case  as  in  the  other.  Upon  non  est  factum  the  question  is, 
whether  in  law  the  deed  produced  in  evidence  be  the  deed  of  the  party  ?  so 
on  non  assumpsit  the  question  is,  whether  the  bill  given  in  evidence  be  in 
point  of  law  the  bill  accepted  by  the  defendant?  because  the  promise  only 
arises  by  implication  of  law  upon  proof  of  the  acceptance  of  the  identical 
bill  accepted,  and  given  in  evidence.  Now  neither  of  the  counts  in  the 
declaration  was  proved  by  the  facts  found.  For  in  the  first  count  the  bill  is 
dated  the  20th  of  March ;  but,  as  there  is  no  evidence  of  the  defendant's 
having  accepted  such  a  bill,  of  course  the  plaintiffs  are  not  entitled  to  reco- 
ver on  that  count.  Neither  can  they  recover  on  the  second,  because  though 
it  is  found  that  he  accepted  a  bill  dated  the  26th  of  March,  as  there  stated, 
yet  inasmuch  as  the  bill  stated  to  have  been  produced  in  evidence  to  the 
jury  is  dated  the  20th,  of  course  the  evidence  did  not  support  the  count. 
With  respect  to  the  cases  cited  of  bills  of  exchange  having  been  always 
fifdfifil  "construed  by  the  most  liberal  *principles,  and  particularly  in  the 
■-  -■  case  of  Minet  v.  Gibson,  the  same  answer  may  be  given  to  all  of 
them,  which  is,  that  so  far  from  the  original  contracts  having  been  attempted 
to  be  altered,  all  those  actions  were  brought  in  order  to  enforce  the  observ- 
ance of  them  in  their  genuine  meaning  against  the  party  who,  in  the  latter 
case  particularly,  endeavoured  by  a  trick  to  evade  the  contract :  whereas 
here  the  contract  has  been  substantially  altered  by  the  parties  who  endeavour 
to  enforce  it;  or  at  least  by  those  whom  they  represent,  and  from  whom 
they  derive  title.  Then  the  ease  in  Molloy,  of  Price  v.  Shute,  is  chiefly 
relied  on  by  the  plaintiffs ;  to  which  several  answers  may  be  given.  First, 
the  authenticity  of  it  may  be  questioned ;  for  it  is  not  to  be  found  in  any 
reports,  although  there  are  several  contemporaneous  reporters  of  that  period. 
In  the  next  place,  the  bill,  as  originally  drawn,  was  not  altered  upon  the 
face  of  it;  and  therefore,  as  against  all  other  persons  at  least  than  the 
acceptor,  it  might  still  be  enforced.      But  principally  it  does  not  appear  but 

(i)  11  Co.  27. 


MASTER     V.     MILLER.  795 

that  the  action  was  brought  against  the  drawer,  who,  as  the  acceptor  had 
not  accepted  it  according  to  the  tenor  of  the  bill,  was  clearly  liable  j  as  the 
payee  was  not  bound  to  abide  by  the  enlarged  acceptance,  but  might  consi- 
der it  as  no  acceptance  at  all.  Then  if  this  bill  be  void  for  this  fraud,  no 
evidence  could  be  given  to  prove  its  contents,  as  in  the  case  of  a  deed  lost ; 
because  in  that  there  is  no  fraud.  But  even  if  any  other  evidence  might 
have  been  given,  it  is  sufficient  to  say  that  in  this  case  there  was  none.  And 
as  to  the  common  counts,  if  the  general  principle  of  law  contended  for 
applies  to  bills  of  exchange,  it  will  prevent  the  plaintiffs  from  recovering  in 
any  other  shape.  Besides  which,  it  is  not  stated  that  the  defendant  has 
received  any  consideration;  upon  which  ground  the  case  of  Tatlock  v.  Har- 
ris was  decided. 

In  reply  it  was  urged,  that  the  issue  was  not  whether  the  defendant  had 
accepted  this  bill  in  the  state  in  which  it  was  shown  the  jurj^,  but  whether 
he  had  promised  to  pay  in  consequence  of  having  accepted  a  bill  dated  the 
2Gth  March,  drawn  by  ?  &c. ;  and  those  facts  being  found,  the  promise 
necessarily  arises.  It  is  said  that  the  policy  of  the  law  will  extend  the  same 
rule  to  the  avoidance  of  bills  of  exchange  which  have  been  altered,  as  to 
deeds;  because  there  is  even  greater  reason  to  guard  against  fraudulent 
*alterations  in  the  former  than  in  the  latter  case.  To  which  it  may  ^  ,  p--. 
be  answered  that  the  foundation  of  the  rule  fails  in  this  case ;  for  no  L  -^ 
fraud  is  found,  and  none  can  be  presumed;  and  it  is  admitted,  that  if  the 
blot  bad  been  made  by  accident,  it  would  not  have  avoided  the  bill;  and 
nothing  is  stated  to  show  that  it  was  not  done  by  accident.  Besides,  the 
policy  of  the  law  is  equally  m'gent  in  favour  of  the  plaintiffs,  it  being  equally 
politic  to  compel  a  performance  of  honest  engagements.  Here  the  defend- 
ant is  only  required  to  do  that  which  in  fact  and  in  law  he  has  promised  to 
do.  And  if  he  be  not  liable  on  this  contract,  he  will  be  protected  in  with- 
holding payment  of  that  money  which  he  has  received,  and  which  by  the 
nature  of  his  engagement  he  undertook  to  repay.  No  answer  has  been  given 
to  the  case  cited  from  Molloy ;  for  though  the  case  is  not  reported  in  any 
other  book,  it  bears  every  mark  of  authenticity,  by  noting  the  names  of  the 
parties,  the  court  in  which  it  is  determined,  and  the  time  of  the  decision  : 
and  it  has  been  adopted  by  subsequent  writers  on  the  same  subject.  Again, 
the  alteration  there  was  full  as  important  as  this,  for  it  equally  tended  to 
accelerate  the  day  of  payment;  and,  lastly,  it  is  not  denied  but  that  the 
action  might  have  been  maintained  on  the  bill  against  any  other  person  than 
the  acceptor ;  which  is  an  admission  that  the  policy  of  the  law  does  not 
attach  so  as  to  avoid  such  instruments  upon  any  alteration,  for  otherwise  it 
would  have  avoided  the  bill  against  all  parties. 

Lord  Kenyon,  C.  J. — The  question  is  not  whether  or  not  another  action 
may  not  be  framed  to  give  the  plaintiffs  some  remedy,  but  whether  this 
action  can  be  sustained  by  these  parties  on  this  instrument  ? — for  the  instru- 
ment is  the  only  mean  by  which  they  can  derive  a  right  of  action.  The 
right  of  action  which  subsisted  in  favour  of  Wilkinson  and  Cooke,  could 
not  be  transferred  to  the  plaintiffs  in  any  other  mode  than  this,  inasmuch  as 
a  chose  in  action  is  not  assignable  at  law.  No  case,  it  is  true,  has  been  cited 
either  on  one  side  or  the  other,  except  that  in  Molloy,  of  which  I  shall  take 
notice  hereafter,  that  decides  the  question  before  us  in  the  identical  case 
.      of  a  bill  of  exchange.     But  cases  and  principles  have  been  cited  at  the  bar. 


796  smith's   leading  cases. 

•which,  in  point  of  hiw  as  well  as  policy,  ought  to  be  applied  to  this  case. 
r*4.fmn  That  the  alteration  in  this  instrument  would  have  avoided  *it,  if  it 
L  J  had  been  a  deed,  no  person  can  doubt.  And  why  in  point  of  policy, 
would  it  have  had  that  effect  in  a  deed  ?  Because  no  man  shall  be  permitted 
to  take  the  chance  of  committing  a  fraud,  without  running  any  risk  of  losing 
by  the  event,  when  it  is  detected.  At  the  time  when  the  cases  cited,  of  deeds, 
were  determined,  forgery  was  only  a  misdemeanor :  now  the  punishment 
of  the  law  might  well  have  been  considered  as  too  little,  unless  the  deed 
also  were  avoided;  and  therefore  the  penalty  for  committing  such  an  offence 
was  compounded  of  those  two  circumstances,  the  punishment  for  the  mis- 
demeanor, and  the  avoidance  of  the  deed.  And  though  the  punishment 
has  been  since  increased,  the  principle  still  remains  the  same.  I  lay  out  of 
my  consideration  all  the  cases  where  the  alteration  was  made  by  accident: 
for  here  it  is  stated  that  this  alteration  was  made  while  the  bill  was  in  the 
possession  of  Wilkinson  and  Cooke,  who  were  then  entitled  to  the  amount 
of  it ;  and  from  whom  the  plaintiffs  derive  title  :  and  it  was  for  their  advantage 
(whether  more  or  less  is  immaterial  here)  to  accelerate  the  day  of  payment, 
which  in  this  commercial  country  is  of  the  utmost  importance.  The  cases 
cited,  which  were  all  of  deeds,  were  decisions  which  applied  to  and  embraced 
the  simplicity  of  all  the  transactions  at  that  time :  for  at  that  time  almost 
all  written  engagements  were  by  deed  only.  Therefore  those  decisions, 
which  were  indeed  confined  to  deeds,  applied  to  the  then  state  of  affairs  :  but 
they  establish  this  principle,  that  all  written  instruments  which  were  altered 
or  erased  should  be  thereby  avoided.  Then  let  us  see  whether  the  policy 
of  the  law,  and  some  later  cases,  do  not  extend  this  doctrine  farther  than 
to  the  case  of  deeds.  It  is  of  the  greatest  importance  that  these  instru- 
ments, which  are  circulated  throughout  Europe,  should  be  kept  with  the 
utmost  purity,  and  that  the  sanctions  to  preserve  them  from  fraud  should 
not  be  lessened.  It  was  doubted  so  lately  as  in  the  reign  of  George  the 
First,  in  Ward's  case(a),  whether  forgery  could  be  committed  in  any  instru- 
ment less  than  a  deed,  or  other  instrument  of  the  like  authentic  nature;  and 
it  might  equally  have  been  decided  there  that,  as  none  of  the  preceding 
determinations  extended  to  that  case,  the  policy  of  the  law  should  not  be 
extended  to  it.  But  it  was  there  held  that  the  principle  extended  to  other 
r*4.rQl  instruments  as  well  as  to  deeds;  and  that  *the  law  went  as  far  as 
L  -'  the  policy.  It  is  on  the  same  reasoning  that  I  have  formed  my  opi- 
nion in  the  present  case.  The  case  cited  from  Molloy  indeed,  at  first  made 
a  different  impression  on  my  mind ;  but  on  looking  over  it  with  great  atten- 
tion, I  think  it  is  not  applicable  to  this  case-  No  alteration  was  there  made 
on  the  bill  itself;  but  the  party  to  whom  it  was  directed,  accepted  it  as 
payable  at  a  different  time,  and  afterwards  the  payee  struck  out  the  enlarged 
acceptance;  and,  on  the  acceptor  refusing  to  pay,  it  is  said  that  an  action 
was  maintained  on  the  bill.  But  it  does  not  say  against  whom  the  action 
was  brought;  and  it  could  not  have  been  brought  against  the  acceptor, 
whose  acceptance  was  struck  out  by  the  party  himself  who  brought  the 
action.  Taking  that  case  in  the  words  of  it,  "  that  the  alterations  did  not 
destroy  the  bill,"  it  does  not  affect  this  case  :  not  an  iota  of  the  bill  itself 
was  altered ;  but  on  the  person  to  whom  the  bill  was  directed  refusing  to 

(a)  2  Str.  747,  and  2  Lord  Raym.  14G1. 


MASTER    V.    MILLER.  797 

accept  the  bill  as  it  was  originally  drawn,  the  holder  resorted  to  the  drawer. 
Then  it  was  contended  that  no  fraud  was  intended  in  this  case  ;  at  least,  that 
none  is  fouud;  but  I  think  that,  if  it  had  been  done  by  accident,  that  should 
have  been  found,  to  excuse  the  party,  as  in  one  of  the  cases  where  the  seal 
of  the  deed  was  torn  off"  by  an  infant.  With  respect  to  the  argument  drawn 
from  the  form  of  the  plea,  it  goes  the  length  of  saying,  that  a  defendant  is 
liable,  on  non  assmnpsit,  if  at  any  time  he  has  made  a  promise,  notwithstand- 
ing a  subsequent  payment :  but  the  question  is,  whether  or  not  the  defendant 
promised  in  the  form  stated  in  the  declaration  ?  and  the  substance  of  that 
plea  is,  that  according  to  that  form  he  is  not  bound  by  law  to  pay.  On  the 
whole,  therefore,  I  am  of  opinion  that  this  falsification  of  the  instrument  has 
avoided  it ;  and  that,  whatever  other  remedy  the  plaintiffs  may  have,  they 
cannot  recover  on  this  bill  of  exchange. 

Ashlvurst,  J. — It  seems  admitted  that,  if  this  had  been  a  deed,  the  altera- 
tion would  have  vitiated  it.  Now  I  cannot  see  any  reason  why  the  prin- 
ciple on  which  a  deed  would  have  been  avoided  should  not  extend  to  the 
case  of  a  bill  of  exchange.  All  written  contracts,  whether  by  deed  or  not, 
are  intended  to  be  standing  evidence  against  the  parties  entering  into  them. 
There  is  no  magic  in  parchment  or  in  wax ;  and  a  bill  of  exchange,  though 
not  a  deed,  is  *evidence  of  a  contract  as  much  as  a  deed;  and  the  (-*4'tai 
principle  to  be  extracted  from  the  cases  cited  is,  that  any  alteration  L 
avoids  the  contract.  If  indeed  the  plaintiff's,  who  are  innocent  holders  of 
this  bill,  have  been  defrauded  of  their  money,  they  may  recover  it  back  in 
another  form  of  action  :  but  I  think  they  cannot  recover  upon  this  instru- 
ment, which  I  consider  to  be  a  nullity.  It  is  found  by  the  verdict  that  the 
alteration  was  made  while  the  bill  was  in  possession  of  Wilkinson  and 
Cooke;  and  it  certainly  was  for  their  advantage,  because  it  accelerated  the 
day  of  payment.  Now,  upon  these  facts,  the  jury  would  perhaps  have  been 
warranted  in  finding  that  the  alteration  was  made  by  them :  at  all  events,  it 
was  their  business  to  preserve  the  bill  without  any  alteration.  If  Wilkinson 
and  Cooke  had  brought  this  action,  they  clearly  could  not  have  recovered, 
because  they  must  suff'er  for  any  alteration  of  the  bill  while  it  was  in  their 
custody :  then,  if  the  objection  would  have  prevailed  in  an  action  brought 
by  them,  it  must  also  hold  with  regard  to  the  plaintiff's,  who  derive  title 
under  them.  For  wherever  a  party  takes  a  bill  under  such  suspicious  cir- 
cumstances appearing  on  the  face  of  it,  it  is  his  duty  to  inquire  how  the 
alteration  was  made;  he  takes  it  at  his  risk,  and  must  take  it  subject  to  the 
same  objection  as  lay  against  the  party  from  whom  he  received  it.  Upon 
the  whole,  there  seems  to  be  no  diff'erence  between  deeds  and  bills  of  ex- 
change in  this  respect  in  favour  of  the  latter :  but,  on  the  contrary,  if  there 
be  any  difference,  the  objection  ought  to  prevail  with  greater  force  in  the 
latter  than  in  the  former;  for  it  is  more  particularly  necessary  that  bills  of 
exchange,  which  are  daily  circulated  from  hand  to  hand,  should  be  preserved 
with  greater  purity  than  deeds,  which  do  not  pass  in  circulation.  It  would 
be  extremely  dangerous  to  permit  the  party  to  recover  on  a  bill  as  it  was 
originally  drawn,  after  an  attempt  to  commit  a  fraud,  by  accelerating  the 
time  of  payment.  For  these  reasons,  therefore,  I  concur  in  opinion  with 
my  Lord. 

Buller,  J. — In  a  case  circumstanced  as  the  present  is,  in  which  it  is 
apparent,  as  found,  and  has  been  proved  beyond  all  doubt,  that  the  bill  of 


798  smith's   leading    cases. 

exchange  in  question  wus  given  for  a  full  and  valuable  consideration,  that 
the  plaintiffs  are  honest  and  innocent  holders  of  it,  and  that  the  defendant 
^,_,-,  has  the  amount  of  the  bill  in  his  hands,  it  is  astonishing  to  *me  that 
L  -^  a  jury  of  merchants  should  hesitate  a  moment  in  finding  a  verdict 
generally  for  the  plaintiffs,  more  especially  as  I  understand  it  was  left  to 
them  by  the  Chief  Justice  to  read  the  bill  as  it  undoubtedly  was  drawn,  and 
by  that  means  to  put  an  end  to  the  question  at  once.  It  was  rightly  so  left 
to  the  jury  by  his  Lordship  j  for  that  was  the  furtherance  of  the  justice  of 
the  case,  and  it  tended  to  prevent  expense,  litigation,  and  delay,  which  are 
death  to  trade.  That  the  defendant  cannot  be  suffered  to  pocket  the  money 
for  which  this  bill  was  drawn,  or  to  enable  the  drawer  to  do  so,  but  thiit 
sooner  or  later,  provided  a  bankruptcy  do  not  intervene,  it  must  be  paid,  I 
presume  no  man  will  doubt.  The  drawer  has  received  the  value,  the  plain- 
tiffs have  paid  it,  and  the  defendant  has  it  in  his  hands.  On  this  short 
statement,  every  one  who  hears  me  must  anticipate  me  in  saying  that  the 
defendant  must  pay  it.  Nay,  if  actual  forgery  had  been  committed,  the 
defendant  could  not  be  permitted  to  retain  the  money ;  he  must  not  get  900^. 
by  the  crime  of  another ;  but,  in  such  a  case,  I  agree  it  would  be  difficult 
to  sustain  the  present  or  any  action  for  the  money  till  something  further 
had  happened  than  has  yet  been  done.  The  law,  proceeding  on  principles 
of  public  policy,  has  wisely  said — That  where  a  case  amounts  to  felony,  you 
shall  not  recover  against  the  felon  in  a  civil  action ;  but  that  rule  does  not 
appear  by  any  printed  authority  to  have  been  extended  beyond  actions  of 
trespass  or  tort,  in  which  it  is  said  that  the  trespass  is  merged  in  the  felony. 
That  is  a  rule  of  law  calculated  to  bring  offenders  to  justice.  But  whether 
that  rule  extend  to  any  case  after  the  offender  is  brought  to  justice,  or 
whether  at  any  time  it  may  be  resorted  to  in  an  action  between  persons  guilty 
of  no  crime,  are  questions  upon  which  I  have  formed  no  opinion,  because 
this  case  does  not  require  it.  Upon  this  special  verdict,  there  is  no  founda- 
tion for  saying  that  any  one  has  been  guilty  of  forgery,  nor  even  of  a  fraud, 
as  it  strikes  my  mind.  Fraud  or  felony  is  not  to  be  presumed;  and  unless 
it  be  found  by  the  jury,  the  court  cannot  imply  it.  Minet  v.  Gibson  is  a 
most  decisive  authority  for  that  proposition,  if  any  be  wanted ;  and  I  do  not 
think  there  is  any  foundation  for  the   distinction  attempted  to  be  taken  be- 


[*472] 


tweeu  that  case  and  the  present.  It  has  been  contended  that  the 
party  there  recovered,  because  the  nature  of  the  ^obligation  was  not 
altered  :  but  the  determination  did  not  proceed  entirely  on  that  ground,  but 
on  this,  that,  according  to  the  true  intent  and  meaning  of  the  parties,  the 
bill  was  intended  to  be  made  payable  to  bearer;  so  here  the  plaintiffs  do 
not  attempt  to  enforce  the  contract  contrary  to  the  terms  of  it,  but  according 
to  that  form  by  which  the  defendant  originally  consented  to  be  bound,  as 
stated  in  the  second  count.  The  special  verdict  finds  that  Peel  and  Co.,  on 
the  26th  of  March,  1788,  drevf  a  bill  of  exchange  on  the  defendant  for  947?. 
10s.,  payable  to  Wilkinson  and  Co. ;  which  bill,  as  the  same  has  been  altered, 
accepted,  and  written  upon,  is  set  out  in  lioec  verba.  Upon  the  fac-simile 
copy  of  the  bill  set  out  in  the  verdict,  there  appears  to  be  a  blot  over  the 
date;  and  the  jury  have  thought  fit  to  read  it  as  it  now  stands,  the  20th. 
I  must  confess  I  should  never  have  read  it  so;  for  seeing  that  there  was 
something  above  the  figure  0,  that  is  the  last  reading  which  I  should  have 
given  to  it.     I  should  have  said  on  the  face  of  the  bill,  this  must  have  been 


MASTER    V.    MILLER.  799 

either  a  G  or  an  8;  it  could  not  have  been  8,  because  the  0  is  as  high  as  the 
2,  and  therefore  it  must  be  a  6 :  but  the  jury  have  found  ao  difficulty  in 
saying  it  was  a  6 ;  and  I  will  examine  presently  whether  there  be  any  objec- 
tion to  let  it  remain  as  a  0.  The  verdict  further  finds  that  the  defendant, 
before  any  alteration  of  the  bill,  accepted  it;  and  Wilkinson  and  Co.,  in- 
dorsed it  to  the  plaintiffs,  who  paid  a  valuable  consideration  for  it.  Then  it 
is  stated,  that  whilst  the  bill  was  in  the  hands  of  Wilkinson  and  Cooke,  the 
date,  without  the  authority  of  the  defendant,  was  altered  by  persons  un- 
known, from  the  26th  to  the  20th  of  March.  They  further  find  that  the 
words  "  23rd  of  June"  were  inserted  at  the  top  of  the  bill,  to  mark  that  the 
bill  would  then  become  due ;  and  that  the  alteration  and  the  blot  were  on 
the  bill  when  it  was  delivered  to  the  plaintiff.  This  is  the  full  substance  of 
the  special  verdict ;  and  there  is  neither  forgery,  felony,  nor  fraud,  found  or 
supposed  by  the  jury ;  we  therefore  can  neither  intend  nor  infer  it.  The 
verdict  amounts  only  to  saying  there  is  a  blot  on  the  bill,  but  how  it  came 
there  we  don't  know;  and  we  beg  to  ask  the  Court  whether  the  circum- 
stance of  a  blot  being  on  the  bill  which  we  cannot  account  for  makes  the 
bill  void.  Provided  I  have  accurately  stated  the  question,  surely  such  a 
verdict  is  without  precedent.  Suppose  a  child  had  torn  out  a  bit  of  p^iiro-i 
the  *bill  on  which  the  top  of  the  6  was  written,  is  the  holder  of  the  ^ 
bill  to  lose  his  974?.  ?  or  is  the  defendant  to  get  974?.  by  such  an  accident  ? 
But  to  decide  whether  I  have  accurately  stated  the  question  in  the  cause,  it 
is  necessary  to  examine  the  words  of  the  special  verdict  minutely,  and  by 
degrees.  The  jury  have  said  that  the  bill  was  altered.  The  words  <' altered" 
may  raise  a  suspicion  and  alarm  in  our  minds;  but  let  not  our  judgment  be 
run  away  with  by  a  word,  without  examining  the  true  sense  and  meaning  of 
it  as  it  is  used  in  the  place  where  we  find  it.  How  was  it  altered,  what  is 
the  alteration,  when  was  it  made,  and  for  what  purpose  ?  The  jury  have  said 
it  was  altered  by  means  of  putting  a  blot  over  the  date  ;  but  by  whom  or  when 
that  was  done  we  don't  know,  further  than  that  it  was  done  whilst  the  bill 
was  in  the  possession  of  Wilkinson  and  Cooke ;  but  we  do  not  find  that  it 
was  done  for  any  bad  purpose,  or  with  any  improper  view  whatever.  Upon 
this  finding,  the  Court  are  bound  to  say  it  was  done  innocently.  But  the 
jury  have  also  said,  that  "  June  23rd"  was  inserted  at  the  top  of  the  bill  to 
mark  when  the  bill  would  become  due.  When  and  by  whom  was  that  done  ? 
The  jury  have  not  said  one  word  upon  the  subject.  Was  that  done  even 
during  any  part  of  the  time  whilst  the  bill  was  in  the  possession  of  Wilkin- 
son and  Cooke  ?  No.  It  is  consistent  with  the  finding,  that  the  plaintiffs, 
who  are  found  to  be  bona  fide  holders  of  the  bill,  upon  reading  the  date  to 
be  the  20th,  and  calculating  the  time  which  it  had  to  run  from  that  date,  put 
down  "June  23rd"  with  the  most  perfect  innocence.  If  the  bill  had  been 
originally  dated  the  20th,  the  23rd  June  would  have  been  the  true  time 
of  payment.  But  admitting  that  a  wrong  date  had  been  put  down,  as 
denoting  the  time  of  payment,  is  there  any  case  or  authority  which  says  that 
that  circumstance  shall  render  the  bill  void  ?  Every  bill  which  has  been 
negotiated  within  the  memory  of  man  is  marked  by  some  holder  or  another 
with  the  day  when  it  will  become  or  is  supposed  to  become  due.  That  in 
some  sense  of  the  word  is  an  alteration ;  for  it  makes  an  addition  to  the  bill 
which  was  not  there  when  it  was  drawn  or  accepted.  But  was  it  done  frau- 
dulently ?    The  answer  is — It  was  not,  and  therefore  it  is  of  no  avail.    So  here 


800  smith's    leading   cases. 

the  jury  have  not  said  it  was  done  fraudulently,  and  therefore  it  affords  no 
.     objection.     When  the  jury  have  *stated  what  the  alteration  is,  and 
*-         -I  how  it  was  made,  namely,  by  making  a  blot,  and  having  fixed  no 
sinister  or  improper  motive  for  so  doing,  it  is  the  same  as  if  they  had  said 
only  "  here  is  a  blot  on  the  bill."    Suppose  the  jury  had  said  in  a  few  words 
that  this  bill  was  drawn,  indorsed,  and  accepted,  by  the  defendant,  as  the 
plaintiflls  allege,  but  here  is  a  blot  upon  it  which  makes  the  date  look  like 
the  20th  instead  of  the  26th.     The  true  answer  would  have  been — Blot  out 
the  blot  by  your  own  understanding  and  conviction,  and  pronounce  your 
verdict  according  to  the  truth  of  the  case.     It  was  nobly  said  in  another 
place,  (I  heard  it  with  pleasure,  and  thought  it  becoming  the  dignity  of  the 
person  who  pronounced  it,  and  the  place  in  which  it  was  pronounced,) 
"  That  the  law  is  best  applied  when  it  is  subservient  to  the  honesty  of  the 
case.   And  if  there  be  any  rule  of  law  which  says  you  cannot  recover  on  any 
instrument  but  according  to  the  terms  of  it,  forlorn  would  be  the  case  of  plain- 
tiffs.    By  the  temperate  rules  of  law  we  must  square  our  conduct."     The 
honesty  of  the  plaintiff's  case  has  been  questioned  by  no  one ;  and  therefore 
I  should  imagine  the  wishes  of  us  all  would  have  been  in  favour  of  their 
claim,  provided  we  are  not  bound  down  by  some  stubborn  rule  of  law  to 
decide  against  them.     Here  again  I  must  beg  leave  to  resort,  to  what  was 
forcibly  said  in  another  place,  upon  a  similar  subject,  and  which  I  shall  do 
as  nearly  in  the  words  which  passed  at  the  time  as  I  can ;  because  they  car- 
ried conviction  to  my  mind;  because  they  contain  my  exact  sentiments; 
and  because  they  are  more  emphatical  than  any  which  I  could  substitute  in 
the  place  of  them.     "  The  question  fit  was  said)  is,  whether  there  be  any 
rule  of  law  so  reluctant  that  it  will  not  recede  from  words  to  enforce  the 
intention  of  the  parties.     I  believe  there  is  no  such  rule.     For  half  of  a 
century  there  have  been  various  cases  which  have  left  the  question  of  for- 
gery untouched.     If  a  bill  be  forged,  the  acceptor  is  bound.''     Speaking  of 
the  case  of  Stone  v.  Freeland,  it  was  said,  "  if  any  one  say  that  case  is  not 
law,  let  him  show  why  it  is  not  so.     Judges  can  only  look  to  former  deci- 
sions.    This  has  been  a  rule  in  the  commercial  world  above  twenty  years." 
This  reasoning  seems  to  me  to  be  sound  and  decisive,  if  it  apply  to  the  pre- 
sent case ;  and  to  prove  that  it  does  apply,  I  need  only  quote  the  case, 

^<„--, -mentioned  at  the  bar,  of  Price  v.  Shute,  reported  in  Beawes's  Lex 
[  ^'^J  *Mercat.,  tit.  Bill  of  Exchange,  pi.  222,  and  Moll.  109.  There  a 
bill  was  payable  1st  January,  and  the  person  to  whom  it  was  directed  ac- 
cepted it  to  pay  on  the  1st  of  March,  with  which  the  servant  returned  to  his 
master,  who,  perceiving  this  enlarged  acceptance,  struck  out  the  1st  of 
March  and  put  in  the  1st  of  January,  and  at  that  time  sent  the  bill  for  pay- 
ment, which  the  acceptor  refused ;  whereupon  the  possessor  struck  out  the 
1st  of  January  and  inserted  the  1st  of  March  again.  In  an  action  brought 
on  this  bill,  the  question  was,  whether  these  alterations  did  not  destroy  the 
bill;  and  ruled  by  Lord  Chief  Justice  Pemberton,  that  they  did  not.  Now, 
on  reading  this  case,  I  cannot  consider  it  in  any  other  light  than  as  an  action 
brought  against  the  acceptor;  for  it  only  states  what  passed  between  those 
parties.  Here  then  is  a  rule  which  has  prevailed  in  the  commercial  world 
for  110  years;  it  stands  uncontradicted  and  unimpeached  :  it  was  decided 
by  great  authority ;  and,  as  I  take  it,  on  deliberation.     For  when  it  is  said 

to  have  been  in  B.  R.,  that  must  either  have  been  in  this  court,  or  on  a  case 


MASTER     V.     MILLER.  801 

saved  by  Chief  Justice  Pemberton  for  his  own  opinion  :  which  was  a  com- 
mon way  of  proceeding  in  those  days.     In  that  case  the  term   "  alteration" 
is  used,  and  therefore  we  need  not  be  frightened  or  alarmed  at  that  word.  The 
effect  of  the  alteration  was  to  accelerate  the  payment ;  so  it  is  here.    But  in 
one  respect  that  case  goes  beyond  the  present ;  for  there  the  alteration  was 
made  by  the  plaintiff  himself;  here  it  was  not.    It  is  true,  in  that  case,  when 
the  plaintiff  found  he  could  not  receive  the  money  on  the  1st  of  January,  he 
altered  it  back  to  the  1st  of  March ;  but  if  the  first  alteration  vitiated  the 
bill,  no  subsequent  alteration  could  set  it  up  against  the  acceptor  without 
his  consent.    Ilere  the  plaintiffs  have  not  re-altered  the  bill ;   but  they  have 
acted  a  more  honest  part;  they  have  left  the  bill  as  it  was  to  speak  for  itself; 
but  they  have  treated  it  as  a  bill  of  the  26th  of  March ;  they  have  proved 
that  it  was  a  bill  of  the  26th  of  March;   they  demanded  payment  according 
to  that  date;  and  the  jury  have  found  all  these  facts  to  be  true.     And  it  is 
material  to  consider  what  was  the  issue  joined  between  the  parties;  for  there 
is  a  great  deal  of  difference  between  the  plea  of  non  est  factum  and  the  pre- 
sent :  here  the  question  is,  whether  the  drawer  made  such  a  bill,  and  whe- 
ther the  defendant  accepted  it;  and  this  is  found  by  the  jury.     Then  the 
*case  of  Price  v.  Shute,  in  sense  and  substance,  is  a  direct  authority  p;^  <  ^,1-1 
in  point  with  the  present;  though  it  vary  in  a  minute  and  immate-  L         -^ 
rial  circumstance.     The  plaintiffs  in  treating  the  bill,  and  making  a  demand 
as  they  have  done,  seem  to  have  followed  the  sober  advice  and  directions 
given  by  Beawes  in  pi.  190 ;   where  he  says,   "  he  that  is  possessor  of  a  bill 
which  only  says  '  pay,'  without  mentioning  the  time  when,  or  that  is  with- 
out a  date,  or  not  clearly  and  legibly  written,  payable  some  time  after  date, 
&c.,  so  that  the  certain  precise  time  of  payment  cannot  be  calculated  or 
known,  must  be  very  circumspect,  and  demand  the  money  whenever  there 
is  any  probable  appearance  of  the  time  being  completed  that  was  intended 
for  its  payment;  or  that  he  can  demonstrate  any  circumstance  that  may  de- 
termine it,  or  make  it  likely  when  it  shall  be  paid."     It  is  impossible  that 
this  writer  could  have  supposed  that  the  bill  was  rendered  void  by  any  blot, 
obliteration,  or  erasure  :  on  the  contrary,  he  tells  you  that  it  must  be  de- 
manded in  time,  and  that  you  may  make  out  by  circumstances  or  other  evi- 
dence when  it  was,  or  was  likely  to  be,  payable.     That  has  been  made  out 
by  evidence  in  the  present  case.     Upon  this  head  I  shall  only  add  one 
authority  more,  which  is  Carth.  460,  where  a  bill  was  accepted  after  a  day 
of  payment  was  elapsed.     It  was  objected  that  it  was  impossible  in  such  a 
case  for  the  defendant  to  pay  according  to  the  tenor  of  the  bill,  and,  there- 
fore the  declaration  was  bad;  but  the  Court  held  it  good,  and  said  the  effect 
of  the  bill  was  the  payment  of  the  money,  and  not  the  day  of  payment.     So 
here  the  defendant  having  accepted  this  bill,  whatever  may  be  the  construc- 
tion as  to  the  date,  must  pay  the  money.     I  hold  that  in  this  case  there  is 
no  fraud  either  express  or  implied;  and  that  as  the  plaintiffs  have  proved 
that  they  gave  a  valuable  consideration  for  the  bill,  and  that  it  was  indorsed 
to  them  by  those  through  whose  hands  it  passed,  their  case  is  open  to  no 
objection  whatever.     But  I  will  suppose  for  a  moment,  though  the  case  do 
not  warrant  it,  that  Wilkinson  and  Cooke  did  mean  a  fraud;  still  I  am  of 
opinion  that  would  not  affect  the  case  between  the  plaintiffs  and  the  defend- 
ant.    It  is  a  common  saying   in  our  law-books,  that  fraud  vitiates  every 
thing.     I  do  not  quarrel  with  the  phrase,  or  mean  in   the  smallest  degree 
Vol.  I.— 51 


802  smith's    leading    cases. 

to  impeach  the  various  cases  which  have  been  founded  on  the  proof  of  fraud. 
r*a."'^1  ^^^  ^*^^^  ^®  must  recollect  that  the  principle  which  I  have  nien- 
L  -'  tionod  is  always  applied  ad  homiunn.  He  who  is  guilty  of  a  fraud 
shall  never  be  permitted  to  avail  himself  of  it;  and  if  a  contract  founded  in 
fraud  be  questioned  between  the  parties  to  that  contract,  I  agree,  that,  as 
against  the  person  who  has  committed  the  fraud,  and  who  endeavours  to 
avail  himself  of  it,  the  contract  shall  be  considered  as  null  and  void.  But 
there  is  no  case  in  which  a  fraud  intended  by  one  man  shall  overturn  a  fair 
and  bona  fide  contract  between  two  others.  Even  as  between  the  parties  them- 
selves we  must  not  forget  the  figurative  language  of  Lord  Chief  Justice  Wilmot, 
who  said  that  <^  the  statute  law  is  like  a  tyrant;  where  he  comes,  he  makes 
all  void ;  but  the  common  law  is  like  a  nursing  fiither,  and  makes  void  only 
that  part  whore  the  fault  is,  and  preserves  the  rest."  2  Wils.  351.  If  an 
alteration  be  made  to  efi'ect  a  fraud,  the  alteration  shall  be  laid  out  of  the 
question;  but  still  the  contract  shall  exist  to  its  original  and  honest  purpose, 
and  shall  be  carried  into  execution  as  if  the  fraud  had  never  existed.  A  case 
somewhat  similar  to  this  is  to  be  found  in  the  book  which  I  have  before 
quoted,  and  which  though  not  a  binding  legal  authority,  yet,  where  its  pro- 
positions are  founded  on  practice  and  good  sense,  is  deserving  of  some  atten- 
tion. Beawes,  tit.  Bill  of  Exchange,  pi.  135,  says,  "where  the  possessor 
of  a  bill  payable  to  his  order  fails,  and  to  defraud  his  creditors  indorses  it  to 
another,  who  negotiates  it,  and  effectually  receives  the  value,  indorsing  it 
again  to  a  third,  &c.,  and  though  the  creditors,  having  discovered  the  fraud, 
oppose  it,  yet  the  acceptant  must  pay  it  to  him  who  comes  to  receive  it,  on 
proof  that  he  paid  the  real  value  for  it."  But  it  has  been  contended  that 
there  is  an  analogy  between  bills  of  exchange  and  deeds,  and  that  in  the 
case  of  deeds  any  erasure  or  alteration  will  avoid  the  deed.  In  answer  to 
this,  first,  I  deny  the  analogy  between  bills  of  exchange  and  deeds,  and  there 
is  no  authority  to  support  it.  In  the  case  of  deeds,  there  must  be  ^profert, 
and,  as  we  learn  from  10  Co.  92,  b.,  in  ancient  times  the  judges  pronounced 
upon  view  of  the  deed,  though  Lord  Coke  says  that  practice  was  afterwards 
altered.  But  there  never  is  z.])rofert  of  a  bill  of  exchange ;  the  judges  can- 
not determine  on  a  view  of  that,  but  it  must  be  left  to  a  jury  to  decide  upon 
the  whole  of  the  evidence,  according  to  the  truth  of  the  case.  Again,  in  the 
r*zl7»1  *^^'^^  ^'^  joint  and  several  bonds  the  objection  was  founded  on  its 
L  J  being  a  substantial  injury  to  the  defendant ;  for  if  it  were  considered 
as  a  sole  bond,  the  defendant  would  be  answerable  for  the  whole  debt;  but 
if  it  were  a  joint  bond,  he  would  be  liable  to  only  half  or  other  proportion- 
able part  of  it.  So  far  in  those  days  did  the  Court  look  into  the  equity  of 
the  case.  But  the  blot  on  this  bill  is  no  injury  to  the  defendant;  he  is  not 
liable  to  pay  till  the  bill  became  due,  computing  the  time  from  tjie  original 
date ;  then  he  must  pay  it :  he  alone  is  liable ;  and  he  never  can  be  charged 
a  second  time  on  the  bill.  Secondly,  it  is  not  universally  true  that  a  deed 
is  destroyed  by  an  alteration,  or  by  tearing  off  the  seal.  In  Palm.  403,  a 
deed  which  had  erasures  in  it,  and  from  which  the  seal  was  torn,  was  held 
good ;  it  appearing  that  the  seal  was  torn  off  by  a  little  boy.  So  in  any 
case  where  the  seal  is  torn  off  by  accident  after  plea  pleaded,  as  appears  by 
the  cases  quoted  by  the  plaintiff's  counsel.  And  in  these  days,  I  think 
even  if  the  seal  were  torn  off  before  the  action  brought,  there  would  be  no 
difficulty  in  framing  a  declaration,  which  would  obviate  every  doubt  upon 


MASTER    V.     M  I  L  L  E  R.  803 

that  point,  by  stating  the  truth  of  the  case.  The  difficulty  which  arose  in 
the  old  cases  depended  very  much  on  the  technical  forms  of  pleading  appli- 
cable to  deeds  alone.  The  plaintiif  made  Vij^rufert  of  the  deed  under  seal, 
which  he  still  must  do,  unless  he  can  allege  a  sufficient  ground  for  excusing 
it;  when  that  is  done,  the  deed  or  the  2)rofcrt  must  agree  with  that  stated 
in  the  declaration,  or  the  plaintiff  fails.  But  a  profert  of  a  deed  without  a 
seal  will  not  support  the  allegation  of  a  deed  with  a  seal.  For  these  rea- 
sons I  am  of  opinion  that  the  plaintiffs  are  entitled  to  judgment  on  the 
second  count,  which  is  drawn  upon  the  bill,  stating  it  to  bear  date  the  26th 
March. 

Eut  supposing  there  could  be  any  doubt  on  this  part  of  the  case,  I  am  also 
of  opinion  that  the  plaintiffs  are  entitled  to  their  judgment  on  either  of  the 
two  counts  for  money  paid,  or  for  money  had  and  received.  Here  it  is 
material  to  recal  to  our  minds  the  facts  found  by  the  verdict.  The  bill  pro- 
duced to  the  jury  was  drawn  for  value,  and  was  accepted  by  the  defendant. 
He  is  not  found  to  have  no  effects  of  the  drawer's  in  his  hands ;  and  his 
accepting  the  bill  imports,  and  is  at  the  least  prima  facie  evidence,  that  he 
had;  and  on  this  verdict  he  must  be  taken  *to  have  the  amount  in  p*4'7Q-| 
his  hands.  In  Burr.  1G75,  Aston,  J.,  said,  it  is  an  admission  of  L 
effects.  By  his  acceptance  he  gave  faith  to  the  bill ;  and  the  plaintiffs, 
giving  credit  to  that  fact,  have  actually  paid  the  value  of  the  bill  on  receiv- 
ing it.  On  this  case  the  money  paid  by  the  plaintiffs  is  money  paid  for  the 
use  of  the  defendant ;  for  the  money  was  advanced  on  the  credit  of  the  de- 
fendant, and  in  consequence  of  his  undertaking  to  pay  the  bill.  Again,  the 
money  in  the  defendant's  hands  is  so  much  money  received  by  him  for  the 
use  of  the  plaintiffs,  who  were  holders  of  the  bill  when  it  became  due.  The 
defendant  has  got  that  money  in  his  pocket,  which  in  justice  and  conscience 
the  plaintiffs  ought  to  have,  and  therefore  they  are  entitled  to  recover  it  in 
an  action  for  money  had  and  received. 

In  answer  to  this,  it  was  in  the  last  term  suggested  for  consideration, 
whether  this  bill  after  the  alteration  were  not  a  chose  in  action,  which  could 
not  be  assigned?  It  is  laid  down  in  our  old  books,  that  for  avoiding  main- 
tenance a  chose  in  action  cannot  be  assigned,  or  gi'anted  over  to  another. 
Co.  Litt.  214,  a.,  266,  a. ;  2  Roll.  45,  1.  40.  The  good  sense  of  that  rule 
seems  to  me  to  be  very  questionable ;  and  in  early  as  well  as  modern  times 
it  has  been  so  explained  away,  that  it  remains  at  most  only  an  objection  to 
the  form  of  the  action  in  any  case.  In  2  Boll.  Abr.  45  &  46,  it  is  admitted 
that  an  obligation  or  other  deed  may  be  granted,  so  that  the  writing  passes  : 
but  it  is  said  that  the  grantee  cannot  sue  for  it  in  his  own  name.  If  a  third 
person  be  permitted  to  acquire  the  interest  in  a  thing,  whether  he  is  to  bring 
the  action  in  his  own  name,  or  in  the  name  of  the  grantor,  does  not  seem  to 
me  to  affect  the  question  of  maintenance.  It  is  curious,  and  not  altogether 
useless,  to  see  how  the  doctrine  of  maintenance  has  from  time  to  time  been 
received  in  Westminster  hall.  At  one  time,  not  only  he  who  laid  out  money 
to  assist  another  in  his  cause,  but  he  that  by  his  friendship  or  interest  saved 
him  an  expense  which  he  would  otherwise  be  put  to,  was  held  guilty  of 
maintenance.  Bro.  tit.  Maintenance,  7,  14,  17,  &c.  Nay,  if  he  officiously 
gave  evidence,  it  was  maintenance ;  so  that  he  must  have  had  a  suhpama, 
or  suppress  the  truth.  That  such  doctrine  repugnant  to  every  honest  feel- 
ing of  the  human  heart  should  be  soon  laid  aside  must  be  expected.      Ac- 


804  smith's    leading    cases. 

*jcni  t-ordingly  a  variety  of  *oxccptious  were  soon  made;  and,  amongst 
L  J  others,  it  was  held,  that  if  a  person  has  any  interest  in  the  thing  in 
dispute,  though  on  contingency  only,  he  may  hxwfully  maintain  an  action  on 
it.  2  Roll.  Abr.  115;  but  in  the  midst  of  all  these  doctrines  on  mainten- 
ance, there  was  one  case  in  which  the  courts  of  law  allowed  of  an  assignment 
of  a  chose  in  action,  and  that  was  in  the  case  of  the  crown ;  for  the  courts 
did  not  feel  themselves  bold  enough  to  tie  up  the  property  of  the  crown,  or 
to  prevent  that  from  being  transferred.  3  Leon.  198  ;  2  Cro.  180.  Courts 
of  equity  from  the  earliest  times  thought  the  doctrine  too  absurd  for  them 
to  adopt,  and  therefore  they  always  acted  in  direct  contradiction  to  it;  and 
we  shall  soon  see  that  courts  of  law  also  altered  their  language  on  the  sub- 
ject very  much.  In  12  Mod.  554,  the  Court  speaks  of  an  assignment  of  an 
apprentice,  or  an  assignment  of  a  bond,  as  things  which  are  good  between 
the  parties,  and  to  which  they  must  give  their  sanction  and  act  upon.  So 
an  assignment  of  a  chose  in  action  has  always  been  held  a  good  considera- 
tion for  a  promise.  It  was  so  in  1  Roll.  Abr.  29;  Sid.  212,  and  T.  Jones, 
222  ;  and  lastly,  by  all  the  judges  of  England  in  Mouldsdale  v.  Birchall, 
2  Black.  820,  though  the  debt  assigned  was  uncertain.  After  these  cases, 
we  may  venture  to  say  that  the  maxim  was  a  bad  one,  and  that  it  proceeded 
on  a  foundation  which  fails.  But  still  it  must  be  admitted,  that  though 
the  courts  of  law  have  gone  the  length  of  taking  notice  of  assignments  of 
choses  in  action  and  of  acting  upon  them,  yet  in  many  cases  they  have 
adhered  to  the  formal  objection,  that  the  action  shall  be  brought  in  the 
name  of  the  assignor,  and  not  in  the  name  of  the  assignee.  I  see  no  use  or 
convenience  in  preserving  the  shadow  when  the  substance  is  gone ;  and  that 
it  is  merely  a  shadow,  is  apparent  from  the  later  cases,  in  which  the  Court 
have  taken  care  that  it  shall  never  work  injustice.  In  Bottomley  v.  Brooke, 
C.  B.  Mich.  22  G.  3,(«)  which  was  debt  on  bond,  the  defendant  pleaded  that 
the  bond  was  given  for  securing  103/.  lent  to  the  defendant  by  E.  Chan- 
cellor; and  was  given  by  her  direction  in  trust  for  her,  and  that  E.  Chan- 
cellor was  indebted  to  the  defendant  in  more  money.  To  this  plea  there 
was  a  demurrer,  which  was  withdrawn  by  the  advice  of  the  Court.  In 
Rudge  v.  Birch,f  K.  B.  Mich.  25  Gr.  3,(6)  on  the  same  pleadings  there 
was  judgment  for  the  defendant.      And  in  Winch  v.   Keeley,  K.  B.  Hil. 

*jiQi"l  ^"^"^  ^'  ^'(*^')  ^'^ci'6  the  obligee  assigned  over  a  bond  and  afterwards 
L  -•  became  a  bankrupt,  the  Court  held  that  he  might  notwithstanding 
maintain  the  action.  Mr.  J.  Ashhurst  said,  "  It  is  true  that  formerly  courts  of 
law  did  not  take  notice  of  an  equity  or  a  trust ;  but  of  late  years,  as  it  has  been 
found  productive  of  great  expense  to  send  the  parties  to  the  other  side  of 
the  hall,  wherever  this  Court  have  seen  that  the  justice  of  the  case  has  been 
clearly  with  the  plaintiff,  they  have  not  turned  him  round  upon  this  objec- 
tion. Then  if  this  court  will  take  notice  of  a  trust,  why  should  they  not  of 
an  equity  ?  It  is  certainly  true  tiiat  a  chose  in  action  cannot  strictly  be 
assigned ;  but  this  Court  will  take  notice  of  a  trust,  and  see  who  is  bene- 
ficially interested."     But  admitting  that  on  account  of  this  quaint  maxim 

(a)  1  T.  n.  621. 

t  But,  these  cases  have  been  flisapprovcd  of.  Tucker  v.  Tucker,  4  B.  &  Ad.  74.5.  And 
sec  Wake  v.  Tinkler,  IG  E.  3C,  wlicrc  Lord  Elluriborough  said,  that  the  doctrine  laid  down 
ill  them  was  rather  to  be  restrained  tlian  extended. 

(6)  1  T.  R.  622.  (c)  Ante,  vol.  i.  619, 


MASTER     V.      MILLER.  805 

there  may  still  be  some  cases  iii  which  an  action  cannot  be  maintained  by 
an  assignee  of  a  chose  in  action  in  his  own  name,  it  remains  to  be  considered, 
whether  that  objection  ever  did  hold  or  ever  can  hold  in  the  case  of  a  mer- 
cantile instrument  or  transaction.  The  law-merchant  is  a  system  of  equity, 
founded  ou'the  rules  of  equity,  and  governed  in  all  its  parts  by  plain  justice 
and  good  faith.  In  Pillan  v.  Van  Mierop,  Lord  Mansfield  said,  if  a  man 
agree  to  do  what  if  finally  executed  would  make  him  liable,  as  in  a  court  of 
equity,  so,  in  mercantile  transactions,  the  law  looks  on  the  act  as  done.  I 
can  find  no  instance  in  which  the  objection  has  prevailed  in  a  mercantile 
case ;  and  in  the  two  instances  most  universally  in  use,  it  undoubtedly  does 
not  hold ;  that  is,  in  the  cases  of  bills  of  exchange,  and  policies  of  insurance. 
The  first  is  the  present  case  ;  and  bills  are  assignable  by  the  custom  of  mer- 
chants ;  so  in  the  case  of  policies  of  insurance ;  till  the  late  act  was  made, 
requiring  that  the  name  of  the  person  interested  should  be  inserted  in  the 
policy,  the  constant  course  was  to  make  the  policy  in  the  name  of  the  bro- 
ker ;  and  yet  the  owner  of  the  goods  maintained  an  action  upon  it.  Circu- 
lation and  the  transfer  of  property  are  the  life  and  soul  of  trade,  and  must 
not  be  checked  in  any  instance.  There  is  no  reason  for  confining  the  power 
of  assignment  to  the  two  instruments  which  I  have  mentioned ;  and  I  will 
show  you  other  cases  in  which  the  Court  have  allowed  it :  1st,  In  Fenuer  v. 
Mears,  where  the  defendant,  a  captain  of  an  East  Indiaman,  borrowed  1000^. 
of  Cox,  and  gave  two  Respondentia  bonds,  *and  signed  an  indorse-  j-^ ,  „^-. 
ment  on  the  back  of  them,  acknowledging  that,  in  case  Cox  chose  L  "'J 
to  assign  the  bonds,  he  held  himself  bound  to  pay  them  to  the  assig- 
nees. Cox  assigned  them  to  the  plaintiff,  who  was  allowed  to  recover  the 
amount  of  them  in  an  action  for  money  had  and  received.  De  Grey,  Chief 
Justice,  in  disposing  of  the  motion  for  a  new  trial,  said(fl)  Respondentia 
bonds  have  been  found  essentially  necessary  for  carrying  on  the  India  trade; 
but  it  would  clog  these  securities,  and  be  productive  of  great  inconvenience, 
if  they  were  obliged  to  remain  in  the  hands  of  the  first  obligee.  This  con- 
tract is  therefore  devised  to  operate  upon  subsequent  assignments,  and 
amounts  to  a  declaration,  that  upon  such  assignment  the  money  which  I  have 
borrowed  shall  no  longer  be  the  money  of  A.,  but  of  B.,  his  substitute. 
The  plaintiff  is  certainly  entitled  to  the  money  in  conscience,  and  therefore, 
I  think,  entitled  also  at  law  :  for  the  defendant  has  promised  to  pay  any 
person  who  is  entitled  to  the  money.  So  in  the  present  case,  I  say  the  plain- 
tiffs are  in  conscience  entitled  to  the  money,  and  the  defendant  has  pro- 
mised to  pay,  or,  which  is  the  same  thing,  is  by  law  bound  to  pay  the 
money  to  any  person  who  is  entitled.  The  very  nature  and  foundation  of  an 
action  for  money  had  and  received  is,  that  the  plaintiff  is  in  conscience  enti- 
tled to  the  money ;  and  on  that  ground  it  has  been  repeatedly  said  to  be  a 
bill  in  equity.  We  all  remember  the  sound  and  manly  opinion  given  by  my 
Lord  Chief  Justice  herein  the  beginning  of  the  last  term,  on  a  motion  made 
by  Mr.  Bearcroft  for  a  new  trial,  wherein  he  said,  if  he  found  justice  and 
honesty  on  the  side  of  a  plaintiff  here,  he  would  never  turn  him  round,  in 
order  to  give  him  the  chunce  of  getting  justice  elsewhere. — -ndly,  Clarke  v. 
Adair,  sittings  after  Easter,  4  Geo.  3  :  Debray,  an  officer,  drew  a  bill  on  the 
agent  of  a  regiment  payable  out  of  the  first  money  which  should  become  due 

(a)  2  Bl.  Rep.  1272. 


806  smith's    leading    cases. 

to  him  on  account  of  arrears  or  non-eiFective  money.  Adair  did  not  accept 
the  bill,  but  marked  it  in  his  book,  and  promised  to  pajf  when  effects  came 
to  hand.  Debray  died  before  the  bill  was  paid ;  and  the  administratrix 
brought  an  action  against  Adair  for  money  had  and  received.  It  was 
allowed  by  all  parties  that  this  was  not  a  bill  within  the  custom  of  mer- 
chants:  but  Lord  Mansfield  said  that  it  is  an  assignment  for  valuable  consi- 
(-^  .  oq-i  deration,  with  notice  to  the  agent ;  and  he  is  bound  to  *pay  it.  He 
L  -J  said  he  remembered  a  case  in  Chancery,  where  an  agent  under  the 
like  circumstances  had  paid  the  money  to  the  administrator,  and  was  decreed 
notwithstanding  to  pay  to  the  person  in  whose  favour  the  bill  was  drawn. 
Srdly,  In  Israel  v.  Douglas,  C.  B.  East,  29  G.  3, (a)  A.  being  indebted  to 
B.,  and  B.  indebted  to  C,  B.  gave  an  order  to  A.  to  pay  C.  the  money  due 
from  A.  to  B. ;  whereupon  C.  lent  B.  a  further  sum,  and  the  order  was 
accepted  by  A.  On  the  refusal  of  A.  to  comply  with  the  order,  it  was  held  that 
C.  might  maintain  an  action  for  money  had  and  received  against  him.  And 
Mr.  J.  Heath  expressly  said  he  thought  in  mercantile  transactions  of  this 
sort  such  an  undertaking  may  be  construed  to  make  a  man  liable  for  money 
had  and  received.  This  opinion  was  cited  with  approbation  in  the  House 
of  Lords  in  Gibson  v.  Minet.  Lastly,  I  come  to  the  case  of  Tatlock  v.  Har- 
ris, (3  T.  R.  182,)  in  which  Lord  Kenyon,  in  delivering  the  judgment  of 
the  court,  said  it  "  was  an  appropriation  of  so  much  money  to  be  paid  to  the 
person  who  should  become  the  holder  of  the  bill.  We  consider  it  as  an 
agreement  between  all  the  parties  to  appropriate  so  much  property  to  be 
carried  to  the  account  of  the  holder  of  the  bill ;  and  this  will  satisfy  the 
justice  of  the  case,  without  infringing  any  rule  of  law."  All  these  cases 
prove  that  the  remedy  shall  be  enlarged,  if  necessary,  to  attain  the  justice 
of  the  case  ;  and  that  if  the  plaintiff  has  justice  and  conscience  on  his  side, 
and  the  defendant  has  notice  only,  the  plaintiff  shall  recover  in  an  action  for 
money  had  and  received.  Let  us  not  be  less  liberal  than  our  predecessors, 
and  even  we  ourselves,  have  been  on  former  occasions.  Let  us  recollect,  as 
Lord  Chief  Justice  Wilmot  said  in  the  case  I  have  alluded  to,  that  not  only 
honijudicia  est  ampliare  jurisdictloncm,  but  ampUare  justitiam:  and  that 
the  common  law  of  the  land  is  the  birthright  of  the  subject,  under  which 
we  are  bound  to  administer  him  justice,  without  sending  in  his  writ  of  sub- 
poena, if  he  can  make  that  justice  appear.  The  justice,  equity,  and  good 
conscience  of  the  case  of  these  plaintiffs  can  admit  of  no  question ;  neither 
can  it  be  doubted  but  that  the  defendant  has  got  the  money  which  the  plain- 
tiffs ought  to  receive.  For  these  reasons,  I  am  of  opinion  that  the  plaintiffs 
are  entitled  to  judgment  on  either  of  these  three  counts  in  the  declaration, 
^  ,o  .-]  namely,  on  the  count  on  the  bill  of  exchange,  *statingthe  date  to  be 
L  the  2Gth  ;  or  on  the  count   for  money  paid;  or  on  the  count  for 

money  had  and  received. 

Grose,  J. — The  only  question  in  this  case  is,  whether  there  appears  on  the 
face  of  this  special  verdict  a  right  of  action  in  the  plaintiffs  on  any  of  the 
counts.  The  first  count  is  on  a  bill  of  exchange,  dated  the  20th  of  March  ; 
but,  there  being  no  proof  of  any  bill  of  that  date,  there  is  clearly  an  end  of 
that  count.  The  second  is  on  a  bill  dated  the  2Gth  of  March;  but  the  de- 
fendant objects  to  the  plaintiffs'   recovering  on  this  count  also,  because  the 

(o)  1  H.  Bl.  i242. 


MASTER    V.     MILLER.  807 

bill  bavins:  been  altered  wbile  it  was  iu  the  bands  of  Wilkinson  and  Cooke, 
it  is  not  tbe  same  bill  as  that  which  was  accepted ;  and  that  is  the  true  and 
only  question  in  the  cause.  My  idea  is,  that  tbe  plaintiffs'  right  of  action, 
as  stated  in  this  count,  cannot  be  maintained  at  common  law,  but  is  supported 
only  on  the  custom  of  merchants,  which  permits  these  particular  choses  in 
action  to  be  transferred  from  one  person  to  another.  The  plaintiffs,  as 
indorsees,  in  order  to  recover  on  this  bill,  must  prove  the  acceptance  by  the 
defendant,  the  indorsement  from  Wilkinson  and  Cooke  to  them,  and  that 
this  was  the  bill  which  was  presented  when  it  became  due.  Now  has  all 
this  been  proved  ?  The  bill  was  drawn  on  the  2(3th  of  March,  payable  at 
three  months'  date  ;  the  defendant's  engagement  by  his  acceptance  was, 
that  it  should  be  paid  when  it  became  due,  according  to  that  date ;  but 
afterwards  the  date  was  altered ;  the  date  I  consider  as  a  very  material 
part  of  the  bill,  and  by  the  alteration  the  time  of  payment  is  accele- 
rated several  days  :  according  to  that  alteration,  the  payment  was  demanded 
on  the  2od  of  June,  which  shows  that  the  plaintiffs  considered  it  as  a 
bill  drawn  the  20th  of  March  ;  then  the  bill  which  was  produced  in  evidence 
to  the  jury  was  not  the  same  bill  which  was  drawn  by  Peel  and  Co.,  and 
accepted  by  the  defendant ;  and  here  the  cases  which  were  cited  at  the  bar 
apply.  Pigot's  is  the  leading  case;  from  that  I  collect,  that  when  a  deed  is 
erased,  whereby  it  becomes  void,  the  obligor  may  plead  non  est  factum,  and 
give  the  matter  in  evidence,  because  at  the  time  of  plea  pleaded  it  was  not 
his  deed ;  and  2ndly,  that  when  a  deed  is  altered  in  a  material  point  by 
himself,  or  even  by  a  stranger,  the  deed  thereby  becomes  void.  Now  the 
effect  of  that  determination  is,  that  a  material  alteration  in  a  deed  causes  it 
no  longer  to  be  the  same  deed.  *Such  is  the  law  respecting  deeds  :f  r^joK-i 
but  it  is  said  that  that  law  does  not  extend  to  the  case  of  a  bill  of  L 
exchange;  -whether  it  do  or  not  must  depend  on  the  principle  on  which  this 
law  is  founded.  The  policy  of  the  law  has  been  already  stated,  namely, 
that  a  man  shall  not  take  the  chance  of  committing  a  fraud,  and,  when  that 
fraud  is  detected,  recover  on  the  instrument  as  it  was  originally  made.  In 
such  a  case  the  law  intervenes,  and  says,  that  the  deed  thus  altered  no 
longer  continues  the  same  deed,  and  that  no  person  can  maintain  an  action 
upon  it.  In  reading  that  and  the  other  cases  cited,  I  observe  that  it  is  no- 
where said  that  the  deed  is  void  merely  because  it  is  the  ease  of  a  deed,  but 
because  it  is  not  the  same  deed.  A  deed  is  nothing  more  than  an  instru- 
ment or  agreement  under  seal :  and  the  principle  of  those  cases  is,  that  any 
alteration  in  a  material  part  of  any  instrument  or  agreement  avoids  it,  be- 
cause it  thereby  ceases  to  be  the  same  instrument.  And  this  principle  is 
founded  on  great  good  sense,  because  it  tends  to  prevent  the  party,  in  whose 
favour  it  is  made,  from  attempting  to  make  any  alteration  in  it.     This  prin- 

t  [In  Dr.  Leyfield's  case,  10  Rep.  93,  one  of  the  reasons  for  prof ert  is  stated  to  be  thai  it 
he  ri(d  rased  or  interlined  in  materinl  points  or  places,  and  upon  that  the  judges  in  ancient 
time  did  judge  of  their  own  view  the  deed  to  he  void,  hut  of  lute  times  have  left  that  to  be 
tried  hy  the  jiirijif  the  rasing  or  interlining  were  before  delivery.  On  similar  principles  a 
deed,  the  name  of  the  grantee  in  which  is  introduced  alter  delivery  is  void.  Hihblevvljilc 
V.  M'AIorine,  G  Mee.  &  W.  200.  But  if  the  grantee  be  sufficiently  identified,  such  an 
addition  as  filling  up  a  blank  left  for  his  cliristian  name  will  not  hurt.  Eugleton  v.  Gut- 
teiidge,  11  Mee.  &  VV.  4G5.] 


808  smith's  leading  cases. 

ciple  too  appears  to  me  as  applicable  to  one  kind  of  instruments  as  to 
another.  But  it  has  been  contended  that  there  is  a  difference  between  an 
alteration  of  bills  of  exchange  and  deeds;  but  I  think  that  the  reason  of 
the  rule  affects  the  former  more  strongly,  and  the  alteration  of  them  should 
be  more  penal  than  in  the  latter  case.  Supposing  a  bill  of  exchange  were 
drawn  for  100/.,  and  after  acceptance  the  sum  was  altered  to  1000/.  :  it  is 
not  pretended  that  the  acceptor  shall  be  liable  to  pay  the  1000/. :  and  I  say 
that  he  cannot  be  compelled  to  pay  the  100/.,  according  to  his  acceptance 
of  the  bill,  because  it  is  not  the  same  bill.  So  if  the  name  of  the  payee 
had  been  altered,  it  would  not  have  continued  the  same  bill.  And  the  altera- 
tion in  every  respect  prevents  the  instrument's  continuing  the  same,  as  well 
when  applied  to  a  bill  as  to  a  deed.  It  was  said  that  Piggott's  case  only 
shows  to  what  time  the  issue  relates  :  but  it  goes  further,  and  shows,  that 
if  the  instrument  be  altered  at  any  time  before  plea  pleaded,  it  becomes 
void.  It  is  true  the  court  will  inquire  to  what  time  the  issue  relates  in 
both  cases.  Then  to  what  time  does  the  issue  relate  here  ?  The  plaintiffs 
r*4.8fi1  ^^  ^^'^^  ^^^^  undertook  to  prove  everything  that  would  support  the 
L  -J  *assumpsit  in  law,  otherwise  the  assumpsit  did  not  arise.  It  was 
incumbent  on  them  to  prove  that,  before  the  action  was  brought,  this  iden- 
tical bill,  which  was  produced  in  evidence  to  the  jury,  was  accepted  by  the 
defendant,  presented,  and  refused :  but  if  the  bill,  which  was  accepted  by 
the  defendant,  were  altered  before  it  was  presented  for  payment,  then  that 
identical  bill,  which  was  accepted  by  the  defendant,  was  not  presented  for 
payment;  the  defendant's  refusal  was  a  refusal  to  pay  another  instrument; 
and  therefore  the  plaintiffs  failed  in  proving  a  necessary  averment  in  their 
declaration.  If  the  bill  had  been  presented  and  refused  payment,  and  it 
bad  been  altered  after  the  action  was  brought,  then  it  might  have  been  like 
the  case  mentioned  at  the  bar.  It  was  contended  at  the  bar,  that  the  inquiry 
before  a  jury  in  an  action  like  the  present  should  be,  whether  or  not  the 
defendant  promised  to  pay  the  bill  at  the  time  of  his  acceptance :  but  grant- 
ing that  he  did  so  promise,  that  alone  will  not  make  him  liable  unless  that 
same  bill  were  afterwards  presented  to  him.  I  will  not  repeat  the  observa- 
tions which  have  been  already  made  by  my  Lord  on  the  case  in  Molloy :  but 
the  note  of  that  case  is  a  very  short  one;  and  the  principle  of  it  is  not  set 
forth  in  any  other  book,  nor  indeed  do  the  facts  of  it  sufiBciently  appear.  I 
doubt  also  whether  it  was  a  determination  of  this  court :  it  only  appears 
that  there  was  a  point  made  at  Nisi  Prius,  but  not  that  it  was  afterwards 
argued  here.  But  it  has  been  said  that  a  decision  in  favour  of  the  plaintiffs 
will  be  the  most  convenient  one  for  the  commercial  world;  but  that  is  much 
to  be  doubted;  for  if,  after  an  alteration  of  this  kind,  it  be  competent  to  the 
court  to  inquire  into  the  original  date  of  the  instrument,  it  will  also  be  com- 
petent to  inquire  into  the  original  sum  and  the  original  payee,  after  they 
have  been  altered,  which  would  create  much  confusion,  and  open  a  door  to 
fraud.  Great  and  mischievous  neglects  have  already  crept  into  these  trans- 
actions; and  I  conceive  that  keeping  a  strict  hand  over  the  holders  of  bills 
of  exchange,  to  prevent  any  attempts  to  alter  them,  may  be  attended  with 
many  good  effects,  and  cannot  be  productive  of  any  bad  consequences,  be- 
cause the  party  who  has  paid  a  value  for  the  bill  may  have  recourse  to  the 
person  who  immediately  received  it  from  him.     On  these  grounds,  there- 


MASTER     V.     MILLER.  809 

fore,  I  am   of  ^opinion  that  the   phiintiffs  cannot  recover  on  the  p^o^r-i 
second  count.     Neither  do  I  think  that  they  can  recover  on  the  L 
general  counts,  because   it  is  not   stated  as  a  fact  in  the  verdict  that  the 
defendant  received  the  money,  the  value  of  the  bill. 

Per  curiam.  Judgment  for  the  defendant. 


MASTER   V.    MILLER,    IN    THE   EXCHEQUER   CHAMBER,    IN    ERROR. 

On  behalf  of  the  plaintiff,  Wood  argued  as  follows :  It  has  been  con- 
tended, on  the  other  side,  in  the  court  below,  that  the  acceptor  of  the  bill 
was  discharged  from  his  acceptance  by  the  alteration  of  the  date,  though 
made  without  the  knowledge  of  the  holder :  but  no  case  has  been  cited  to 
show,  that  an  alteration,  such  as  was  made  in  the  present  instance,  would 
vitiate  a  written  instrument,  except  it  were  a  deed.  But  there  is  a  material 
difference  between  deeds  and  bills  of  exchange.  Deeds  seldom  if  ever  pass 
through  a  variety  of  hands,  and  are  not  liable  to  the  same  accidents  to 
which  bills  are,  from  their  negotiability,  exposed..  There  is  therefore  good 
reason  in  the  rule,  which  requires  that  deeds  should  be  strictly  kept,  and 
which  will  not  suffer  the  least  alteration  in  them ;  but  the  same  rule  is  not 
applicable  to  bills.  In  ancient  times  the  court  decided  on  the  inspection  of 
deeds,  for  which  reason  a  profert  was  necessary,  that  they  might  see  whether 
any  rasure  or  alteration  had  taken  place :  but  bills  of  exchange  were  always 
within  the  cognizance  of  the  jury.  The  form  of  the  issue  on  a  deed  also, 
is  different  from  that  on  a  bill ;  in  the  one  it  is,  that  it  is  not  then,  i.  e.  at 
the  time  of  plea  pleaded,  the  deed  of  the  party;  II  Co.  27,  a,  Piggott's 
case ;  but  the  issue  on  a  bill  is,  that  the  defendant  did  not  undertake  and 
promise.  Here  the  jury  have  expressly  found  that  the  defendant  did  accept 
the  bill,  and  the  promise  arises  by  implication  of  law  from  the  acceptance. 
An  alteration  in  the  date,  subsequent  to  the  acceptance,  will  not  do  away 
the  implied  promise.  In  Price  v.  Shute,  "a  bill  was  drawn  payable  the  1st 
of  January;  the  person  upon  whom  it  was  drawn  accepts  the  bill  to  be  paid 
the  1st  of  March;  the  servant  brings  back  the  *bill :  the  master  per-  (-jjtigQ-i 
ceiving  the  enlarged  acceptance,  strikes  out  the  1st  of  March,  and  L  -■ 
puts  in  the  1st  of  January,  and  then  sends  the  bill  to  be  paid;  the  acceptor 
then  refuses  :  whereupon  the  person  to  whom  the  moneys  were  to  be  paid 
strikes  out  the  1st  of  January,  and  puts  in  the  1st  of  March  again.  In  an 
action  brought  on  this  bill,  the  question  was,  Whether  these  alterations  did 
not  destroy  the  bill?  and  ruled  they  did  not."  2  Molloy,  109.  In  Nicols 
V.  Haywood,  Dyer,  59,  it  was  holden  in  the  case  of  a  bond,  that  where  the 
seal  was  destroyed  by  accident  before  the  trial,  the  jury  might  find  the  spe- 
cial matter,  and  being  after  plea  pleaded,  it  could  not  be  assigned  for  error, 
but  the  plaintiff  recovered.  To  the  same  point  also  is  Cro.  Eliz.  120,  Mi- 
chael V.  Stockwith.  So  in  the  present  case,  it  was  competent  to  the  jury 
to  find  the  special  matter,  and  an  alteration  in  the  bill,  subsequent  to  the 
time  of  the  acceptance,  ought  not  to  prevent  the  plaintiff  from  recovering. 
In  Dr.  Leyfield's  case,  10  Co.  92,  b,  it  is  said,  "in  great  and  notorious 
extremities,  as  by  casualty  of  fire,  that  all  his  evidence  were  burnt  in  his 


810  smith's  leading  cases. 

house,  there,  if  thut  should  appear  to  the  judges,  they  may,  in  favour  of 
him  who  has  so  great  a  loss  by  fire,  suffer  him  upou  the  general  issue  to 
prove  the  deed  in  evidence  to  the  jury  by  witnesses:"  the  casualty  by  fire 
is  only  put  as  an  instance,  for  the  principle  is  applicable  to  all  cases  of  acci- 
dent. Thus  also  in  Read  v.  Brookman,  3  Term  Rep.  B.  R.  151,  a  deed 
was  pleaded  as  being  lost  by  time  and  accident,  without  a  profert :  and  the 
present  case  is  within  the  reason  and  spirit  of  that  determination. 

Bcarcroft,  contra. — On  principles  of  law  and  sound  policy,  the  plaintiif 
ought  not  to  recover.  The  reason  of  the  rule,  that  a  material  alteration  shall 
vitiate  a  deed,  is  applicable  to  all  written  instruments,  and  particularly  to 
bills  of  exchange,  which  are  of  universal  use  in  the  transactions  of  mankind. 
And  here  there  was  a  material  alteration  in  the  bill,  inasmuch  as  the  time 
of  payment  was  accelerated.  As  to  the  case  of  Price  v.  Shute,  it  is  but 
loosely  stated,  and  that  not  in  any  book  of  reports ;  and  it  does  not  appear 
against  whom  the  action  was  brought. 

Lord  Chief  Justice  Eyre. — I  cannot  bring  myself  to  entertain  any  doubt 
on  this  case ',  and  if  the  rest  of  the  Court  are  of  the  same  opinion,  it  is  need- 
r*J.SQn  ^^^^  ^^  P^*  ^^^  parties  to  *the  delay  and  expense  of  a  second  argu- 
l-  -'  ment.  When  it  is  admitted  that  the  alteration  of  a  deed  would  viti- 
ate it,  the  point  seems  to'  me  to  be  concluded ;  for  by  the  custom  of  mer- 
chants a  duty  arises  on  bills  of  exchange  from  the  operation  of  law,  in  the 
same  manner  as  a  duty  is  created  on  a  deed  by  the  act  of  the  parties.  With 
respect  to  the  argument  from  the  negotiability  of  bills  of  exchange  and  their 
passing  through  a  variety  of  hands,  the  inference  is  directly  the  reverse  of 
that  which  was  drawn  by  the  counsel  for  the  plaintiff:  there  are  no  witnesses 
to  a  bill  of  exchange,  as  there  are  to  a  deed;  a  bill  is  more  easily  altered 
than  a  deed;  if  therefore  courts  of  justice  were  not  to  insist  on  bills  being 
strictly  and  faithfully  kept,  alterations  in  them  highly  dangerous  might 
take  place,,  such  as  the  addition  of  a  cypher  in  a  bill  for  100^.,  by  which  the 
sum  might  be  changed  to  1000?.,  and  the  holder  having  failed  in  attempting 
to  recover  the  1,000?.  might  afterwards  take  his  chance  of  recovering  the 
100?.,  as  the  bill  originally  stood.  But  such  a  proceeding  would  be  intoler- 
able. It  was  said  in  the  argument  that  the  defendant  could  not  dispute  the 
finding  of  the  jury,  that  they  had  found  that  he  accepted  the  bill,  and  there- 
fore that  the  substance  of  the  issue  was  proved  against  him.  But  the  mean- 
ing of  the  plea  of  non  assumpsit  is,  not  that  he  did  not  accept  the  bill,  but 
that  there  was  no  duty  binding  on  him  at  the  time  of  plea  pleaded. (^«) 
There  are  many  ways  by  which  the  obligation  of  the  acceptance  might  be 
discharged;  for  instance,  by  payment.  And  it  was  certainly  competent  to 
him  to  show,  that  the  duty  which  arises  prima  facie  from  the  acceptance  of 
a  bill,  was  discharged  in  the  present  case  by  the  bill  itself  being  vitiated  by 
the  alteration  which  was  made. 

Lord  Chief  Baron  Macdonald. — I  see  no  distinction  as  to  the  point  in 
question  between  deeds  and  bills  of  exchange :  and  I  entirely  concur  with 
my  Lord  Chief  Justice,  in  thinking  there  would  more  dangerous  conse- 
quences follow  from  permitting  alterations  to  be  made  on  bills  than  on 
deeds. 

The  other  judges  declared  themselves  of  the  same  opinion. 

Judgment  affirmed, 
(a)  See  Dougl.  Ill  &,  112,  8vo.,  Sullivan  v.  Montague,  and  the  notes  there. 


MASTER    V.     MILLER. 


811 


r-MQm  *Since  thetiecision  of  tliis  case, 
L  4yuj  jj  j^^g  never  been  doubted  that  a 
material  alteration  in  a  bill  or  note  [not 
satisfactorily  accounted  for]  operates  as 
a  satisfaction  thereof,  except  as  against 
parties  consenting  to  such  alteration. 
In  Alderson  v.  Langdale,  3  B.  &  Ad. 
660,  the  doctrine  was  carried  still  fur- 
ther, and  it  was  held  that  such  an  alter- 
ation made  by  the  plaintiff  operated  as  a 
satisfaction  not  only  of  the  bill,  but  of 
the  debt  which  it  was  given  to  secure. 
In  Alderson  v.  Langdale,  the  debtor  was 
the  draioer  of  the  bill  altered ;  but  in 
Atkinson  v.  Hawdon,  2  Ad.  »&,  Ell.  628, 
it  was  held  that  where  the  debtor,  being 
himself  the  maker  or  acceptor,  could 
have  had  no  remedy  on  the  instrument 
against  any  other  party  to  it,  his  liability 
[to  pay  the  debt  secured  thereby]  would 
not  be  extinguished  by  the  alteration. 
[In  that  case  the  declaration,  so  far  as  is 
material  to  this  point,  was  for  goods  sold 
and  delivered,  and  on  an  account  stated. 
Plea,  that  the  defendant  accepted  a  bill 
at  two  months  for  the  debt;  Replication, 
that  it  was  not  paid  when  due;  Rejoi7i- 
rfer,  that  the  plaintiff"  had  altered  it  with- 
out the  defendant's  assent.  Demurrer, 
and  judgment  for  the  plaintiff",  the  de- 
fendant's counsel  admitting  that  the  re- 
joinder could  not  be  supported.  It  is 
obvious  that  this  case  has  no  bearing 
upon  the  effect  of  such  an  alteration  in 
an  action  on  the  bill  itself.] 

Alterations  in  the  date,  sum,  or  time 
for  payment,  or  the  insertion  of  words 
authorizing  transfer  or  expressing  the 
value  to  be  received  on  some  particular 
account,  adding  the  name  of  the  maker 
or  drawer,  or  an  unwarranted  place  for 
payment,  are  material  alterations  within 
the  above  rule.  See  Walton  v.  Hastings, 
4  Camp.  228,  1  Stark.  215;  Oothwaite 
V.  Luntly,  4  Camp.  179;  Bowman  v. 
JN'icholl,  5  T.  R.  537;  Cardwell  v.  Mar- 
tin, 9  East,  190;  Kershaw  v.  Cox,  3 
Esp.  246;  Knill  v.  Williams,  10  East, 
431 ;  Clark  v.  Blackstock,  Holt,  JV.  P. 
474;  Tidmarsh  v.  Grover,  1  M.  &  S. 
735;  Cowiev.  Halsall,  4  B.  &  Ad.  197; 
R.  V.  Treble,  2  Taunt.  328;  Alderson 
V.  Langdale,  3  B.  &  Ad.  660  ;  Taylor  v. 
Mosely,  6  C.  &  P.  278.  [Crotty  v. 
Hodges,  4  Man.  &  Gr.  561,  5  Scott,  N. 
R.  221,  S.  C. ;  Harrison  v.  Cotgreave,  4 
C.  B.  562,  where  the  defendant  pleaded 
his  infancy  at  the  time  of  the  alteration 
(not  stating  it  to  have  been  made  with- 
out his  consent),  and  that  he  had  not 
ratified  the  contract  as  altered  after  he 


came  of  full  age,  IMason  v,  Bradley,  11 
Mee.  &  W.  590,  where  the  name  of  one 
of  the  makers  of  a  promissory  note  was 
cut  off.] 

Even  if  the  alteration  be  made  with 
the  consent  of  all  the  parties  to  the  bill 
or  note;  still,  as  it  thereby  becomes  a 
new  contract,  the  old  stamp  will  not  suf- 
fice. Bowman  v.  NichoU,  5  T,  R,  537; 
unless,  indeed,  the  alteration  was  jnerely 
to  correct  a  mistake,  and  so  render  the 
instrument  what  it  was  originally  in- 
tended to  have  been,  Kershaw  v.  Cox,  3 
Esp.  246  ;  Jacob  v.  Hart,  6  M.  &  S.  142 ; 
Clark  v.  Blackstock,  Holt,  N.  P.  474. 
[Byrom  v.  Thomson,  11  Ad.  &  Ell.  316. 
Cariss  v.  Tattersall,  3  Scott,  N.  R.  257, 
2  Man.  &l  Gr.  890,  S.  C,  which  see  as 
to  the  evidence  sufficient  to  prove  an  as- 
sent to  the  alteration.  Wright  v.  Inshavv, 
1  Dowl.  N.  S.  602.  The  addition  of  a 
new  contractor  with  the  assent  of  all 
parties  does  not  hurt,  Zouch  v.  Clay,  1 
Vent.  185,  2  Lev.  3-%  S.  C. ;  and  accord- 
ing to  Catton  v.  Simpson,  8  Ad.  &  Ell. 
136,  3  N.  &  P.  248,  S.  C,  it  does  not 
even  render  a  new  stamp  necessary.] 

An  alteration  made  with  the  consent 
of  parties  before  a  bill  or  note  has  issued 
is  of  no  importance,  for,  up  to  the  time 
of  issue,  it  is  in  fieri ;  Downes  v.  Rich- 
ardson, Bayley  on  Bills,  5th  Ed.  116; 
Johnson  v.  D.  of  Marlborough,  2  Stark. 
313;  {Tarleton  v.  Shingler,  7  C.  B. 
812;}  so  when  made  by  an  agent  of  all 
parties.  Sloman  v.  Cox,  5  Tyrvv.  175, 
1  C.  M.  &  R.  471,  S.  C.  And  a  bill  or 
note  is  said  to  be  issued  when  it  is  in 
the  hands  of  some  party  entitled  to  make 
a  claim  upon  it.  Downes  v.  Richardson, 
ubi  supra  ;  Cardwell  v.  Martin,  9  East, 
190 ;  Kennersley  v.  Nash,  1  Stark.  452. 

If  a  bill  or  note  exhibit  the  appearance 
of  alteration,  it  lies  upon  the  iiolder  to 
account  for  it.     Henman  v.  Dickenson, 

5  Bing.  183  ;  Bishop  v.  Chambre,  1  M. 

6  M.  116;  Knight  v.  Clements,  8  Ad. 
&E11.  213;  [Clifford  v.  Lady  Parker,  2 
Man.  &  Gr.  909,  3  Scott,  N.  R.  233, 
S.  C.  Whether  an  interlineation  like 
an  alteration  raises  a  prima  facie  case  of 
suspicion,  so  that  the  onus  of  explaining 
it  is  thrown  upon  the  party  producing 
the  instrument,  see  2  Wms.  Saund. 
200  c,  n.(6.)] 

A  cancellation  by  mistake  does  not 
affect  the  liability  of  the  parties  whose 
signatures  are  cancelled.  Roper  v.  Birk- 
beck,  15  East,  17;  *  Wilkinson  r  ^^.qr,,  -■ 
v.  Johnson,  3  B.  &  C.  428  ;  ^  ^^""^  J 
Novelli  v.  Rossi,  2  B.  &  Ad.  765.     [Ac- 


812 


SMITHS  LEADING  CASES. 


cord.  Warwick  v.  Ronfer?,  5  Man.  &  Gr. 
3ot>,  0  Scott,  N.  R.  1,  S.  C,  whore  an 
unsiicccsstlil  attempt  was  made  to  fix  a 
b;inker  who  has  made  such  a  cancella- 
tion with  the  amount  of  the  bill.]  i\or 
does  the  addition  of  a  thing  perfect!}'  im- 
material. Catton  V.  Simpson,  8  Ad.  & 
Ell.  llMi. 

When  an  acceptance  is  altered  by  in- 
serting a  place  of  payment,  without  add- 
ing the  words  "there  only,"  or  "not 
elsewhere,"  the  alteration  is,  in  an  ac- 
tion against  the  acceptor,  immaterial  if 
made  by  his  consent,  st.  1  &.  2  G.  4,  c. 
78,  having  rendered  the  above  words 
necessary  in  order  to  a  special  accept- 
ance. Walter  v.  Cubley,  2  C.  &  M.  151. 
But  if  made  without  his  sanction,  it 
avoids  the  bill,  being  the  unauthorized 
appointment  of  an  agent  to  pay  the  bill, 
'i'aylor  v.  Moseley,  6  C.  &  P.  278  ;  Mac- 
intosh V.  Haydon,  R.  &  JM.  362 ;  Des- 
browe  v.  Wetherby,  1  M.  &  Rob.  4:^8 ; 
Calvert  v.  Baker,  4  Mee.  &  W.  417. 
[Grotty  V.  Hodges,  4  Man.  &  Gr.  561 ; 
5  iScott,  N.  R.  221,  S.  C. 

Although  for  a  long  time  Pigot's  case, 
11  Rep.  26  a,  and  Master  v.  Miller,  were 
the  authorities  always  referred  to  upon 
questions  of  alteration,  and  although 
such  questions  seldom  arose  except  in 
actions  upon  deeds,  bills  of  exchange, 
and  promissory  notes,  yet  the  doctiineof 
those  two  cases  has  been  extended  to 
other  written  instruments.  In  Powell 
v.  Divett,  15  East,  29,  the  Court  of 
Queen's  Bench  applied  it  to  the  case  of 
bought  and  sold  notes,  and  held  that  a 
vendor  who,  after  the  bought  and  sold 
notes  had  been  exchanged,  prevailed  on 
the  broker,  without  the  consent  of  the 
vendee,  to  add  a  term  to  the  bought  note 
for  his  the  vendor's  benefit,  thereby  lost 
all  right  against  the  vendee,  j  A  simi- 
lar decision  was  made  in  Mollet  v. 
Wackerbarth,  5  C.  B.  181,  where  V. 
Williams,  J.,  said,  ''  The  doctrine  of 
Pigot's  case  as  to  altera'tions  in  deed.s, 
has  once  been  extended  to  all  instru- 
ments comprehending  words  of  con- 
tract."} And  in  Davidson  v.  Cooper,  11 
Mee.  &  W.  79.5,  where  to  a  count  in 
assumpsit  on  a  guaranty,  the  defendant 
pleaded  that  after  it  was  given  to  the 
plaintiff,  it  was  altered  in  a  material  par- 
ticular by  some  person  to  the  defcmltmt 
unknown,  without  his  consent,  by  alH.v- 
ing  a  seal  so  as  to  make  it  appear  to  be 
the  deed  of  the  defendant,  upon  a  motion 
for  judgment  non  obstante  veredicto,  the 
Court  of  Exchequer  reviewed  and  ex- 


pounded the  law  upon  the  general  sub- 
ject of  alteration,  and,  holding  the  case 
to  fall  within  the  doctrine  of  Pigot's  case, 
gave  judgment  for  the  defendant.  And 
that  judgment  was  affirmed  by  the  Court 
of  Exchequer  Chamber,  "afler  much 
doubt,"  13  Mee.  &  W.  343.  The  doubt 
at  first  entertained  by  the  Court  of  Ex- 
chequer Chamber  may  however  be  con- 
sidered as  fortifying  their  ultimate  deci- 
sion, which  was  founded  on  the  principle, 
"that  a  party  who  has  the  custody  of  an 
instrument  made  for  his  benefit,  is  bound 
to  preserve  it  in  its  original  estate."  "  It 
is,"  said  Lord  Denman,  in  delivering  the 
judgment,  "highly  important  p^g^^ -. 
for  *preserving  the  purity   of'-  -' 

legal  instruments,  that  this  principle 
should  be  borne  in  mind,  and  the  rule 
adhered  to.  The  party  who  may  suffer 
has  no  right  to  complain,  since  there 
cannot  be  any  alteration  except  through 
fraud  or  laches  on  his  part." 

An  instrument  which,  by  reason  of  an 
alteration,  becomes  invalid  as  the  founda- 
tion of  an  action,  is  not  however  thereby 
necessarily  avoided  for  all  purposes.  For 
instance,  the  alteration  of  a  deed  of  con- 
veyance, though  it  may  deprive  the  cove- 
nantee of  all  right  to  sue  upon  the  cove- 
nants therein  contained,  does  not  affect 
the  ownership  of  the  properly  conveyed  ; 
and  the  deed  may,  it  seems,  still  be  ad- 
duced in  evidence,  to  show  v;hat  was 
originally  conveyed  thereby,  West  v. 
Steward,  14  Mee.  &  W.  47.  In  such 
cases,  to  use  the  words  of  Lord  Abinger, 
in  delivering  the  judgment  of  the  Court, 
in  Davidson  v.  Cooper,  11  Mee.  &  W. 
800,  "  the  deed  is  produced  merely  as 
proof  of  some  right  or  title  created  by 
or  resulting  from  its  having  been  exe- 
cuted.'''' Also,  in  the  Earl  of  Falmouth 
V.  Thomas,  9  Mee.  &,  W.  469,  the  rule 
as  to  the  destructive  efTect  of  altering  a 
written  instrument  was  stated  by  Parke, 
B.,  to  apply  where  the  obligation  sought 
to  be  enforced  is  by  reason  of  the  instru- 
ment. That  was  an  action  by  landlord 
against  tenant  for  mismanagement  of  a 
farm,  and  an  instrument  purporting  to 
be  a  written  agreement  for  the  letting 
of  the  farm  with  stipulations  as  to  the 
mode  of  tillage,  though  exhibiting  an 
erasure  and  interlineation  of  the  term 
of  years  not  satisfactorily  accounted  for, 
was  admitted  as  evidence  of  the  terms 
upon  which  the  defendant  (who  had  be- 
come tenant  from  year  to  year  under  a 
contract  implied  from  the  fact  of  occu- 
pation, to  abide  by  all  the  terms  of  the 


MASTER    V.     MILLER. 


813 


written  agreement  applicable  to  a 
tennncy  from  year  to  year),  liekl  the 
premises.  In  that  case  the  instrument 
given  in  evidence  does  not  appear  to 
have  operated  specificaliy  as  an  agree- 
ment npon  the  terms  ol'  the  existing 
tenancy  ;  it  did  not  contain  the  contract 
which  the  plaintiff  sought  to  enforce ;  it 
was  only  part  of  the  evidence  to  prove 
that  such  a  contract  existed,  though  not 
in  writing;  as  such  evidence,  only  that 
part  of  the  written  instrument  wiiich 
stated  the  mode  of  tillage  was  material, 
and  that  part  had  not  been  altered.  It 
was  like  the  printed  paper  in  Lord  Bol- 
ton V.  Tomlin,  5  Ad.  &  Ell.  8-56;  1  N. 
&  P.  247,  S.  C.,with  the  additional  cir- 
cumstance that  it  was  identified  by  the 
tenant's  signature.  In  Gould  v.  Coombes, 
1  C.  B.  543,  also,  a  promissory  note,  as- 
sumed to  have  been  avoided  as  a  con- 
tract by  adding  the  name  of  a  maker, 
was  yet  admitted  in  evidence  together 
with  an  "  I  O  U"  for  the  amount,  given 
whilst  the  note  was  valid,  to  sustain  a 
count  upon  an  account  stated.  In  Hut- 
r*4Qn7i  cl""^  ^-  -^cott,  2  iVIee.  &  VV. 
[•49UrfJg^jy^  ^likewise,  an  altered 
agreement  was  admitted  in  evidence  for 
a  collateral  purpose;  but  some  of  the 
observations  in  that  case  must  be  taken 
subject  to  correction  by  Davidson  v. 
Cooper. 

Since  the  rules  of  H.  4  W.  4,  the 
effect  of  an  alteration  has  frequently 
been  obviated  by  the  form  of  the  plead- 
ings, as  in  S^ibley  v.  Fisher,  7  Ad.  &■  Ell. 
444,  where  the  issue  being  on  the  in- 
dorsement of  a  bill  only,  an  alteration  in 
the  date  was  held  irrelevant.  And  in 
Homing  v.  Trenery,  9  Ad.  &.  Ell.  92G, 
where  a  contract  had  been  inti^rlined, 
and  the  plaintiff  declared  upon  it  as  in 
its  original  state,  the  defendant,  having 
pleaded  non  assumpsit  only,  was  not 
allowed  to  rely  upon  the  effect  of  the 
interlineation.  That  case  has  been  ap- 
proved and  acted  upon  in  Mason  v.  Brad- 
ley, II  Mee.  &  W.  590,  Davidson  v. 
Cooper,  11  INJee.  &.  W.  778,  and  Parry 


V.  Nicholson,  13  .Mee.  &  VV.  77?,  from 
which  it  is  clear  that,  where  the  count 
is  framed  npon  the  instrument  in  its 
original  state,  an  alteration  which  does 
not  render  a  new  stamp  necessary  can- 
not be  taken  advantage  of  under  a  plea 
denying  the  contract.  The  case  of  Cal- 
vert V.  Baker,  4  Mee.  &  W.  417,  where, 
in  an  action  upon  a  bill  declarexl  upon 
as  it  was  originally  accepted,  the  defend- 
ant was  allowed  under  a  plea  denying 
the  acceptance  to  rely  upon  an  altera- 
tion of  the  bill,  can  only  be  sustained 
on  the  ground  that  a  new  stamp  was 
rendered  necessary  by  the  alteration  ; 
(see  Parry  v.  Nicholson,  supra,  per 
Parke,  B);  and  on  examination  that 
ground  will  perhaps  be  fjund  untenable. 
Where,  on  the  other  hand,  the  plaintiff 
declares  upon  the  instrument  as  altered, 
there  the  defendant  may  raise  any 
available  defence  arising  out  of  the 
alteration  under  a  plea  denying  the  con- 
tract; for,  either  he  has  not  authorized 
the  alteration  and  so,  never  having  made 
any  such  contract  as  that  declared  upon, 
must  succeed  in  substance;  or  if  he  has 
authorized  it,  his  objection  can  only  be 
the  want  of  a  fresh  stamp,  and  that  may 
be  taken,  on  the  production  of  the  altered 
instrument  to  prove  the  issue.  The  case 
of  a  deed  set  out  on  oyer  as  altered,  and 
thereby  made  part  of  the  declaration, 
falls  within  the  same  reasonintr.  JSee 
VVaugh  V.  Bussell,  1  Marsh.  214,  5 
Taunt.  707,  S.  C.  In  pleading  an  altera- 
tion the  defendant  ought  to  show  that  it 
was  in  writing,  Hardern  v.  ('lifton,  1  Q, 
B.  523  ;  that  it  was  made  after  his  con- 
tract was  complete  (as,  for  instance,  in 
the  case  of  the  acceptor  of  a  bill,  by 
acceptance),  Langton  v.  Lazarus,  5  i\lee. 
&  W.  629;  and,  either  that  it  was  made 
without  his  consent,  or  that  it  was  of 
such  a  character  as  to  render  a  new 
stamp  necessary,  and  made  under  cir- 
cumstances in  vvliinh  a  new  stamp  could 
not  legally  be  affixed;  see  Bradley  v. 
Bardsley,  14  Mee.  &  VV.  873,  3  Dowl. 
&  L.  47G,  S.  C] 


The  practice  which  allows  deeds  to  be  declared  upon  witliout  profert,  and, 
therefore,  excuses  their  destruction  or  loss,  has  greatly  modified  the  con- 
sequences resulting  from  alterations  iu  deeds.      There  is  no  doubt,  that  if, 


814  smith's   leading  cases. 

by  any  agency,  a  verbal  alteration  be  made,  which  destroys  the  identity  of 
the  instrument,  the  altered  instrument  may  be  avoided  by  plea  of  non  est 
factum,  because  that  is  not  the  deed  which  the  party  executed :  but  the 
legal  destruction  of  the  original  deed,  cannot  have  a  greater  effect  than  its 
actual  destruction  or  loss,  and,  therefore,  by  the  modern  practice,  the  origi- 
nal deed  may  be  set  up  by  parol  evidence ;  only,  the  person  by  whose  act  or 
privity  the  spoliation  was  committed,  shall  not  be  relieved  against  his  own 
fraud  or  folly.  Fraud  in  the  person  altering,  is,  therefore  the  ground  of  the 
instrument  being  made  effectively  void.  Accordingly,  the  rule,  as  now 
received,  is,  that,  an  alteration,  after  execution,  inade  hy  one  claiming  a 
henefit  under  the  deed,  or  hy  Ids  jyrivity^  destroys  the  instrument  as  to  him, 
and  he  can  never  sue  upon  it.  Lewis  &  Lewis  v.  Payne,  8  Cowen,  71; 
Withers  v.  Atkinson,  1  Watts,  237.  The  instrument,  as  far  as  the  spoliator 
is  concerned,  is  from  that  time  destroyed  and  extinguished :  its  past  opera- 
tion is  not  counteracted ;  executed  contracts  evinced  by  it,  are  not  rescinded ; 
estates  and  titles  vested  by  transmutation  of  possession,  whether  by  com- 
mon law  or  the  statute  of  uses,  are  not  devested  :  but  no  future  benefit  can 
be  derived  by  that  party,  from  the  deed,  and  no  covenants,  obligations,  or 
other  executory  contracts,  can  be  enforced  by  him  through  its  instrumental- 
ity ;  Herrick  v.  Maliii,  22  Wendell,  388,  in  the  Court  of  Errors ;  The  Peo- 
ple V.  Muzzy,  1  Denio,  240,  243 ;  Briggs  &  Briggs  v.  Grlen  &  Bryan,  7 
Missouri,  572,  575 ;  Hatch  and  another  v.  Hatch  and  another,  9  Massa- 
chusetts, 307;  Barrett  v.  Thorndike,  1  Greenleaf,  73;  Bliss  v.  Mclntyre  et 
al.,  18  Vermont,  466.  But  an  alteration,  or  spoliation,  as  by  tearing  the 
seals  off,  made  or  committed  not  by  the  party  suing,  nor  by  his  privity, 
works  no  harm;  as,  if  it  be  done  by  a  stranger,  Rees  v.  Overbaugh,  6 
Cowen,  746;  Nichols  v.  Johnson,  10  Connecticut,  193;  Hhoads  v.  Fred- 
erick, 8  Watts,  448 ;  Medlin  v.  Platte  county,  8  Missouri,  235 ;  Lee  v. 
Alexander,  &c.  9  B.  Monroe,  25  ;  or  by  the  obligor,  or  one  of  the  obligors; 
Cutts  V.  U.  S.,  1  Gallison,  69;  Barrington  and  others  v.  Bank  of  Washing- 
ton, 14  Sergeant  &  Rawle,  405;  Williams  v.  Moseley,  2  Florida,  304,  329. 
And  where  an  alteration  is  made  in  a  deed,  by  a  party  entitled  under  it,  it 
is  avoided  only  as  to  him,  and  the  instrument  continues  unchanged  in  law, 
as  to  other  innocent  parties  to  it.  Thus  where  a  conveyance  of  land  in  fee  is 
made,  with  covenants  reserving  an  annual  rent,  and  after  execution  the  deed 
is  altered  in  a  material  part  by  the  grantor,  the  law,  in  consonance  with  jus- 
tice and  policy,  avoids  the  covenants  reserving  rents  in  favour  of  the  fraud- 
ulent grantor,  but  preserves  the  fee-simple  to  the  innocent  grantee  discharged 
from  the  covenants  in  the  deed,  and  the  covenant  being  avoided  as  relates 
to  the  covenantee  and  his  right  of  action  extinguished,  a  bona  fide  purchaser 
from  him  is  in  no  better  situation  than  he  was;  Arrison  v.  Harmstead,  2 
Barr,  191,  194.  The  distinction  stated  above,  between  an  executed  and  an 
executory  operation  of  a  deed,  that  is  between  the  effect  of  an  alteration  in 
avoiding  rights  in  action  created  by  it,  and  not  vacating  the  transfer  of  an 
interest,  or  the  discharge  of  a  right,  once  executed  by  it,  is  recognized  in 
the  late  English  cases,  although  they  differ  from  the  American  cases,  in 
holding  that  a  material  alteration  made  by  a  stranger  voids  a  deed  as  com- 
pletely as  when  made  by  the  party  holding  it.  In  Davidson  v.  Cooper,  11 
Meeson  &  Welsby,  778,  800;  affirmed  on  error,  13  id.  343,  Lord  Abinger, 
C.  B.,  said  that  the  strictness  of  the  rule  in  Pigot's  case,  that  a  material 


MASTER     V.     MILLER.  815 

alteration,  by  the  party  holding  it  or  by  a  stranger,  renders  the  instrument 
altogether  void  from  the  time  when  such  alteration  is  made,  had  not  been 
relaxed  in  modern  times,  when  the  altered  deed  is  relied  on  as  the  founda- 
tion of  a  right  sought  to  be  enforced ;  but  that  the  case  is  different,  where 
the  deed  is  produced  merely  as  proof  of  some  right  or  title  created  by,  or 
resulting  from  its  having  been  executed ;  as  in  the  case  of  an  ejectment  to 
recover  lands  which  have  been  conveyed  by  lease  and  release  :  <'  There," 
said  Lord  Abinger,  "  what  the  plaintiff  is  seeking  to  enforce,  is  not,  in 
strictness,  a  right  under  the  lease  and  release,  but  a  right  to  the  possession 
of  the  land,  resulting  from  the  fact  of  the  lease  and  release  having  been  exe- 
cuted. The  moment  after  their  execution,  the  deeds  become  valueless,  so 
far  as  they  relate  to  the  passing  of  the  estate,  except  as  aflFording  evidence 
of  the  fact  that  they  were  executed.  If  the  effect  of  the  execution  of  such 
deeds  was  to  create  a  title  to  the  land  in  question,  that  title  cannot  be  affect- 
ed by  the  subsequent  alteration  of  the  deeds  :  But  if  the  party  is  not  pro- 
ceeding by  ejectment  to  recover  the  land  conveyed,  but  is  suing  the  grantor 
tinder  his  covenants  for  title,  or  other  covenants  contained  in  the  release, 
then  the  alteration  of  the  deed  in  any  material  point,  after  its  execution, 
whether  made  by  the  party  or  by  a  stranger,  would  certainly  defeat  the 
right  of  the  party  suing  to  recover."  In  like  manner  in  Todd  v.  Emly,  11 
id.  1,  4,  on  a  replication  of  non  est  factum  to  a  release  pleaded,  a  deed  of 
release  of  which  the  seal  had  been  torn  off  by  the  party  released,  was  thought 
by  Parke,  B.,  to  be  admissible  in  evidence,  because  the  replication  meant 
that  it  was  not  the  deed  of  the  plaintiffs  for  the  purpose  of  proving  a  release  ; 
and  therefore  that  the  issue  was  proved  by  the  production  of  a  deed  which 
had  operated  as  a  deed,  though  now  in  a  cancelled  state. 

The  rule  as  to  notes  is  essentially  the  same  as  that  applied  to  deeds.  An 
alteration  by  accident,  mistake,  or  the  act  of  a  stranger,  after  a  party's  right 
u.pon  a  note  is  complete,  will  not  prevent  his  recovering  upon  it ;  but  if  the 
note  be  altered  by  a  party  entitled  upon  it,  it  is  wholly  voided  as  to  him  ; 
Martendale  v.  Follet,  1  New  Hampshire,  95.  And  where  an  instrument, 
which  is  meant  to  be  the  only  security  of  a  debt,  and  in  which  previous 
implied  and  parol  liabilities  have  become  merged,  is  voided  by  a  fraudulent 
alteration  on  the  part  of  the  creditor,  he  cannot  recover  on  the  consideration 
of  the  contract;  Martendale  v.  Follet;  Mills  v.  Starr,  2  Bailey,  359.  But 
see  Serle  v.  Norton,  9  M.  &  W.  309. 

Whether  the  alteration  was  made  before  or  after  execution,  is  for  the 
jury  :  the  first  presumption  of  fact,  from  omitting  to  note  the  alteration  at 
the  attesting,  is,  that  it  was  made  afterwards;  Morris's  Lessee  v.  Vanderen, 
1  Dallas,  64 ;  Prevost  v.  Grratz,  1  Peters's  C.  C.  305 ;  but  if  the  alteration 
be  against  the  interest  of  the  party  appearing  to  have  made  it,  or  claiming 
under  it,  or  be  immaterial,  or  there  be  other  circumstances,  this  may  be 
rebutted :  and,  upon  rebutting  evidence  satisfactory  to  the  court,  the  whole 
case  is  for  the  jury.  Heffelfinger  v.  Shutz  et  al.,  16  Sergeant  &  Rawle,  44  ; 
Bank  V.  Hall,  1  Halsted,  215 ;  Smith  v.  M'Gowan,  3  Barbour's  S.  Gt.  405, 
408 ;  Bailey  v.  Taylor  and  another,  11  Connecticut,  531,  where  the  cases 
on  this  subject  are  examined  at  considerable  length  ;  Jackson  v.  Osborne,  2 
Wendell,  555.  In  Tillon  v.  The  C.  &  E.  Mut.  Ins.  Co.  7  Barbour's  S.  Ct. 
504,  the  Court  said,  that  where  the  alteration  was  suspicious,  and  beneficial  to 
the  holder,  the  presumption  was  against  him,  and  he  must  explain  it,  before 


816  smith's   LEADING     CASES. 

be  can  recover;  and  that  the  evidence  in  explanation  must  be  adequate, 
prima  facie,  in  the  opinion  of  the  court.  In  Davis  v.  Jenney,  1  Metcalf,  221, 
tbe  case  of  a  note,  Morton,  J.  charged  the  jury,  that  in  the  absence  of  all 
explanation,  the  legal  presumption  was,  that  the  alteration  was  after  execu- 
tion, and  the  court  above,  per  Sri  aw,  C.  J.,  said,  that  they  considered  it, 
<<  a  question  of  very  great  importance,"  but  it  was  not  necessary  then  to 
decide  it.  The  opinion  of  the  Chancellor,  adopted  by  the  Court  of  Errors, 
in  Ilerrick  v.  Malin,  appears  to  have  been,  that  if  the  alteration  were  mate- 
rial, the  party  claiming  on  the  deed  must  explain  it;  if  immaterial,  it  will 
rather  be  presumed  to  have  been  done  before  execution.  Wickes  v.  Caulk, 
5  Harris  &  Johnson,  3G,  41,  seems  to  say,  that  the  burden  of  proof  is  on 
him  who  alleges  that  the  alteration  was  after  execution.  And  in  Matthews 
V.  Coulter,  9  Missouri,  705,  710,  in  the  case  of  an  unsealed  agreement,  it 
was  held  that  an  alteration  would  be  presumed  to  have  been  made  before  or 
at  the  time  of  signing  unless  there  be  something  to  create  suspicion  or  raise 
a  presumption  to  the  contrary,  as,  if  the  ink  differ,  or  the  handwriting  be 
that  of  a  holder  interested  in  the  alteration,  in  which  case,  the  alteration 
must  be  explained.  In  like  manner,  in  Adm'rs  of  Beaman  v.  Russell,  20 
Vermont,  205,  where  the  cases  are  reviewed,  it  is  held  that  the  rule  of  the 
common  law  is,  that  an  alteration  of  a  written  instrument,  if  nothing  appear 
to  the  contrary,  should  be  presumed  to  have  been  made  at  the  time  of  its 
execution,  and,  generally,  that  the  whole  inquiry  whether  there  has  been  an 
alteration,  and  if  so,  whether  in  fraud  of  the  defending  party,  or  otherwise, 
to  be  determined  either  from  the  appearance  of  the  instrument  itself,  or 
from  that  and  other  evidence  in  the  case,  is  for  the  jury.  On  the  other 
hand,  in  Hills  v.  Barnes,  11  New  Hampshire,  395,  in  the  case  of  a  note,  it 
was  held  that  the  question  as  to  the  time  when  the  alteration  was  made,  is 
for  the  jury,  who  in  some  cases  may  be  satisfied  from  the  appearance  of  the 
paper  itself,  that  the  alteration  was  made  before  execution;  but  that  in  the 
absence  of  all  evidence,  either  extrinsic,  or  on  the  f;ice  of  the  note,  as  to  the 
time  of  the  alteration,  it  will  be  presumed  to  have  been  made  subsequently 
to  the  execution  and  delivery  of  the  note ;  and  that  this  rule  is  necessary 
for  the  security  of  the  maker  of  the  note  ;  who  must  otherwise  take  evidence 
of  the  appearance  of  the  note  when  it  is  delivered,  in  order  to  protect  himself 
against  alterations  subsequently  made  without  his  privity.  See,  also,  Hum- 
phreys V.  Guillou,  13  id.  386,  388.  And  this  is  adopted  as  the  true  rule 
in  Walters  v.  Short,  5  Gilman,  252,  258.  In  Pennsylvania,  it  has  been 
decided,  that  in  the  case  of  negotiable  instruments,  the  holder  must  show, 
that  any  material  alteration  was  lawfully  made;  Simpson  v.  Stackhouse,  9 
Barr,  186. 

If  the  deed  or  note  has  been  in  the  possession  of  the  party  claiming  upon 
it,  it  affords  a  presumption  that  the  alteration  was  made  by  him  ;  and  it  lies 
upon  him  to  show  that  he  was  not  privy  to  it.  Chesley  v.  Frost,  1  New 
Hampshire,  145;  Bowers  v.  Jewell,  2  id.  543;  Barriugton  and  others  v. 
Bank  of  Washington,  14  Sergeant  &  Rawle,  423.  In  U.  S.  v.  Linn  et  al., 
1  Howard's  Sup.  Ct.  104,  a  distinction  is  noted  between  those  alterations 
which  appear  upon  the  face  of  the  instrument,  and  those  which  are  extrinsic  : 
in  that  case,  in  debt  on  an  instrument  appearing  to  be  a  regular  bond,  the 
plea  alleged  that  after  the  defendant  had  signed,  the  instrument  was,  without 
his  consent  or  authority,  altered  by  affixing  a  seal ;  and  the  court  held  the 


MASTER    V.     MILLER.  817 

plea  bad,  for  not  alleging  that  the  alteration  was  made  by  the  plaintiff,  or 
with  his  privity  ;  for  as  the  plea  stood,  the  alteration  might  have  been  either 
by  the  plaintiff  or  by  a  stranger,  and  as  pleas  are  to  be  taken  most  strongly 
against  the  party  pleading,  the  court  would  intend  it  was  the  latter ;  and 
they  said  that  where  the  alteration  appears  on  the  face  of  the  instrument, 
as  an  erasure  or  alteration,  the  law  imposes  on  the  party  claiming  under  it, 
the  burden  of  explaining  the  alteration,  for  it  was  presumed  to  have  been 
made  while  in  his  possession  ;  but  that  where  the  instrument  carries  with  it 
no  appearance  of  alteration,  the  defendant  who  in  his  plea  alleges  a  fatal 
alteration,  must  show  it  to  have  been  such;  and  this  is  approved  and  acted 
upon  in  Gotten  v.  Williams,  1  Florida,  37,  49. 

An  alteration,  however,  even  in  a  material  part,  may  be  made  in  a  deed 
or  note,  after  execution,  if  it  is  proved,  or  may  be  presumed,  to  have  been 
done  by  consent  of  all  the  parties;  Woolley  v.  Constant,  4  Johnson,  54; 
Spcake  et  al.  v.  U.  S.,  9  Cranch,  28  ;  Barrington  et  al.  v.  Bank  of  "Washing- 
ton, 14  Sergeant  &  Rawle,  405;  Stephens  v.  Graham,  7  id.  505;  Smith 
V.  Weld,  2  Barr,  54 ;  Willard  v.  Clarke,  7  Metcalf,  435.  437 ;  Hills  v. 
Barnes,  11  New  Hampshire,  395;  Humphreys  v.  Guillou,  13  id.  386,  388; 
The  Richmond  Manuf.  Co.  v.  Davis,  7  Blackford,  412 ;  Beary  v.  Haines,  4 
Wharton,  17  :  but  the  parties  must  be  at  that  time  legally  competent  to 
consent;  Moore  and  others  v.  Lessee  of  Bickham  and  West,  4  Binney,  1. 
And  a  deed  when  thus  altered  in  a  material  part,  takes  effect  from  the  time 
of  the  alteration,  as  a  re-execution  of  it ;  Penny  v.  Corwithe,  18  Johnson, 
499 ;  Tompkin  v.  Corwin,  9  Cowen,  255 ;  in  Barrington  et  al.  v.  Bank  of 
Washington,  it  is  said  by  Duncan,  J.,  that  this  agreement  to  alter  and 
accept  the  new  obligation  is  a  quasi  re-execution;  but  in  Speake  v.  U.  S., 
it  was  the  opinion  of  Livingston,  J.,  against  the  majority  of  the  court, 
that  if  the  alteration  be  material,  there  should  be  a  re-execution;  and  this 
opinion  seems  to  rest  on  strong  reasons:  see  Miller  v.  Stewart,  9  Wheaton, 
680,  708.  In  a  recent  case,  where  the  principles  applicable  to  the  subject, 
were  clearly  and  ably  conceived,  it  was  held,  that  where  a  party  to  a  deed 
consents  at  the  time  to  an  alteration,  there  is  a  mixture  of  consideration  and 
deliberation  in  the  act  which  gives  evidence  of  his  intention  to  make  the 
deed  his  own;  but  that  an  agreement  to  be  responsible,  after  such  alteration 
has  been  made,  should  not  bind  him  unless  the  act  of  recognition  were  of  a 
character  so  unequivocal,  that  no  doubt  could  remain,  that  in  legal  contem- 
plation at  least,  there  was  a  making  and  delivery  of  the  deed;  Sans  v.  The 
IV'ople,  3  Gilman,  327,  336.  In  Connecticut  it  is  held,  that  after  acknow- 
ledgment before  a  magistrate,  a  inaterlal  alteration,  even  by  consent,  cannot 
be  made,  without  re-acknowledgment,  though  an  Immaterial  one  may ;  Colt 
V.  Starkweather,  8  Connecticut,  290  :  and  in  Pennsylvania,  not  the  smallest 
alteration,  even  by  consent,  can  be  made  after  acknowledgment,  without 
there  be  a  re-acknowledgment ;  Moore  and  others  v.  Lessee  of  Bickham  and 
West. 

This  consent  of  the  parties, — at  least,  (and  probably  only,)  where  the 
alteration  is  immaterial — may  be  implied,  as  well  as  express  and  actual  :  it 
may  be  implied  from  circumstances,  custom,  the  nature  of  the  alteration, 
&c. ;  Halev.  Buss,  1  Greenleaf,  334;  Ogle  v.  Graham,  2  Penrose  &  Watts, 
132  :  and  see  Woodworth  v.  Bank  of  America,  19  Johns.  391 ;  where  one 
of  the  main  points  held  by  the  majority  against  the  minority  appears  to  have 

Vol.  I.— 52 


818  smith's   leading    cases. 

been,  that  consent  or  authority  to  make  material  alterations  cannot  be  im- 
plied, (at  least  in  law,)  and  that  such  alterations  can  only  be  made  with  the 
assent  of  the  party  to  be  charged.  In  Texira  v.  Evans,  1  Anst.  228,  it  was 
held  that  a  bond  delivered  with  a  blank  for  the  name  of  the  obligee,  and  for 
the  sum  due,  and  afterwards  filled  up,  was  valid;  but  this  was  overruled  in 
Hibblewhite  v.  M'Morine,  6  M.  &  W.  200.  The  principle  of  the  latter  case 
is  adhered  to  in  North  Carolina  and  Arkansas;  M'Kee  v.  Hicks,  2  Deve- 
reux,  379;  Davenport  v.  Sleight,  2  Devereux  &  Battle,  381;  Graham  v. 
Holt,  3  Iredell's  Law,  300;  Cross  and  Bizzell  v.  State  Bank,  5  Pike,  525  : 
but  in  most  other  states  of  the  Union,  the  authority  of  Texira  v.  Evans, 
appears  to  be  followed.  See  The  Richmond  Manuf.  Co.  v.  Davis,  7  Black- 
ford, 412 ;  and  sec  the  other  cases  collected  in  note  to  Hibblewhite  v.  M'Mo- 
rine,  6  M.  &  W.  216,  Am.  ed. 

As  to  the  question,  whether  an  immaterial  alteration  will  avoid  .an 
instrument,  or  whether,  to  have  that  effect,  it  must  be  material,  there  has 
been  some  divergency  in  the  cases,  in  respect  to  deeds  and  to  notes : 
thouch,  probably,  the  rule  now  finally  arrived  at,  is  in  effect  the  same  as  to 
both. 

As  to  Deeds  :  in  some  of  the  cases,  the  dicta  are,  that  an  immaterial 
alteration  by  a  party  claiming  under  the  deed,  will  avoid  it  as  to  him; 
Morris's  Lessee  v.  Vanderen,  1  Dallas,  64, -67;  Smith  v.  Weld,  2  Barr, 
64 ;  Barrett  v.  Thorndike,  1  Greenleaf,  73  ;  Lewis  &  Lewis  v.  Payne,  8 
Cowen,  71 :  in  others,  it  is  doubted.  Hatch  et  al.  v.  Hatch  et  al.,  9  Massa- 
chusetts, 307;  Hunt  V.  Adams,  6  id.  521 ;  O'Neale  v.  Long,  4  Cranch,  60: 
and,  in  some,  it  is  said,  that  only  material  alterations  are  fatal.  Smith  v. 
Crocker  et  al.,  5  Massachusetts,  538  ;  and  see  Langdon  v.  Paul,  20  Ver- 
mont, 217,  220.  Upon  principle,  it  would  seem,  that  the  slightest  altera- 
tion in  the  deed  must  make  a  variance  in  the  instrument,  and  cause  it,  in 
its  new  state,  to  be  not  the  deed  originally  made  by  the  party.  But  the 
doctrine  of  implied  consent  from  circumstances  has  been  carried  so  far  in 
the  modern  cases,  (supra,)  that  there  can  be  little  reason  to  doubt,  upon  the 
principle  of  all  those  cases,  that  the  circumstance  of  the  alteration  being  im- 
material,  viz.  not  in  the  least  affecting  the  nature  or  extent  of  the  obligor's 

liability — is  evidence  from  which  the  jury  may  presume  an  authority  to 
alter,  or  is  even  a  presumption  in  law  of  authority  and  consent :  and  this, 
which  has  been  repeatedly  applied  to  notes,  in  Hale  v.  Ptuss,  1  G-reeuleaf, 
3o4,  recognised  in  the  case  of  a  deed :  and  see  Stahl  v.  Berger,  and  Beary 
v.  Haines.  So  that,  practically,  the  rule  may  be  taken  to  be,  that  a  mate- 
rial alteration  by  a  party,  of  itself  avoids  the  deed  as  to  him  :  but  an  imma- 
terial alteration  does  not,  unless  it  is  fraudulent.  (It  may  be  observed, 
that  in  the  New  Hampshire  cases,  it  is  held,  that  an  alteration,  to  avoid 
a  deed,  in  any  case,  must  be  actually  fraudulent ;  i.  e.  a  material,  of  which 
the  court  judge,  and  from  interested  motives,  on  which  the  jury  decide; 
and  to  this  view,  the  case  of  Adams  and  another  v.  Frye,  3  Metcalf,  103, 
in  Massachusetts,  (post,)  appears  to  accede;  but  the  Pennsylvania  cases 
clearly  hold  that  a  material  alteration  by  the  party,  of  itself  voids  the  iu- 
gtruinent.) 

Alterations  in  deeds  are  immaterial,  "  where  neither  the  rights  nor  inter- 
ests duties  nor  obligations,  of  either  of  the  parties,  are  in  any  manner 
affected  or  changed;"  Smith  v.  Crooker  et  al.,  5  Massachusetts,  538.     The 


4  MASTER    V.     MILLER.  819 

erasure  by  the  obligee  in  a  bond,  of  the  name  of  one  surety  and  insertion  of 
another,  avoids  the  bond  as  to  another  surety  not  having  consented ;  The 
State  V.  Polke,  7  Bhickford,  27  ;  and  the  addition  of  another  obligor  to  a 
joint  and  several  bond,  without  the  consent,  express  or  implied,  of  the  pre- 
vious obligors,  renders  the  deed  void  as  to  them  ;  Shipp's  adm'r  v.  Suggett's 
adm'r,  9  B.  Monroe,  5.  In  Marshall  and  another  v.  Gougler,  10  Sergeant 
&  Rawle,  164,  it  was  held,  that  adding  new  names  as  witnesses,  for  the  pur- 
pose of  authenticating  the  instrument,  was  a  material  alteration,  for  it 
affected  the  evidence,  and  this  is  confirmed  in  Henning  v.  Werkheiser,  8  Barr, 
518.  In  Adams  and  another  v.  Frye,  where  this  point  was  examined  at 
length,  the  court  lay  down  the  rule  thus :  "1.  That  if  the  obligee  of  an 
unattested  bond,  after  the  execution  and  delivery  thereof,  shall,  without  the 
knowledge  and  assent  of  the  obligor,  fraudulently,  and  with  a  view  to  gain 
some  improper  advantage  thereby,  procure  a  person  who  was  not  present 
at  the  execution  of  the  bond,  to  sign  his  name  thereto  as  an  attesting  wit- 
ness, such  act  will  avoid  the  bond,  and  discharge  the  obligor  from  all  liability 
on  the  same.  ...  2.  That  the  act  of  the  obligee  in  procuring  the  signature 
of  one  as  a  witness,  who  was  not  present  at  its  execution,  and  not  duly 
authorised  to  attest  it,  will,  if  unexplained,  be  i^rima  facie,  suflScient  to 
authorise  the  jury  to  infer  the  fraudulent  intent;  but  that  it  is  competent 
for  such  obligee  to  rebut  such  inference ;  and  if  the  act  be  shown  to  have 
been  done  without  any  fraudulent  purpose,  the  bond  will  not  be  avoided  by 
such  alteration  :"  See,  also,  Thornton  v.  Appleton,  29  Maine,  298,  299. 
— The  proper  manner  of  taking  advantage  of  an  alteration  in  a  deed  is  by 
plea  of  non  est  factum :  that  plea  goes  to  the  existence  of  the  instrument, 
as  the  deed  of  the  defendant,  at  the  time  of  plea  pleaded ;  Barrington  and 
others  v.  Bank  of  Washington,  14  Sergeant  &  Rawle,  423  ;  Smith  v.  Weld, 
2  Barr,  54  ;  Miller  v.  Stewart,  9  Wheaton,  680,  716. 

As  to  Notes:  it  seems  generally  agreed,  that  an  alteration,  to  avoid 
them,  must  be  material;  I3owers  v.  Jewell,  2  New  Hampshire,  453; 
Homer  v.  Wallis,  11  Massachusetts,  309  ;  Gardinier  v.  Sisk,  3  Barr,  326. 
A  material  alteration,  such  as  would  avoid  a  note,  would  be ;  the  altering 
of  the  date,  Stephens  v.  Graham,  7  Sergeant  &  Rawle,  505;  Hocker  v. 
Jamison,  2  Watts  &  Sergeant,  438 ;  the  insertion  of  the  negotiable  words 
''or  order"  in  a  note  before  not  negotiable ;  Pepoon  v.  Stagg  &  Co.,  1  Nott 
&  M'Cord,  102 ;  Haines  v.  Dennett,  11  New  Hampshire,  181  ;  Bruce  v. 
Westcott,  3  Barbour's  S.  Ct.  374;  the  insertion  of  "young"  before  "  mer- 
chantable stock"  in  the  promise;  Martendale  v.  Follet,  1  New  Hampshire, 

95  :  in  Massachusetts,  the  adding  of  a  subscribing  witness,  when  there  was 
none  before,  which  in  that  state  affects  the  operation  of  the  Statute  of  Limi- 
tations;' Homer  v.  Wallis;  see  Smith  v.  Dunham,  8  Pickering,  246;  Adams 
and  another  v.  Frye;  (but  adding  a  second  witness  where  there  was 
already  one,  is  immaterial,  for  it  does  not  affect  the  operation  of  the  statute; 
Ford  V.  Ford,  17  Pickering,  418;)  any  alteration  which  affects  the  evidence 
of  the  validity  or  operation  of  the  note;  Bates  v.  Hill,  1  New  Hampshire, 

96  :  making  a  joint  and  several  note  to  be  merely  joint ;  Humphreys  v. 
GuilloLi,  13  New  Hampshire,  386,  387  ;  appointing  a  particular,  place  of 
payment  when  before  none  was  fixed;  Woodworth  v.  Bank  of  America,  19 
Johnson,  391 ;  making  a  note  payable  on  demand,  which  before,  was  pay- 
ble  on  time;  Wheelock  v.  Freeman,  13  Pickering,  165:  and  extending 


820  SAIITII'S    LEADING     CASES. 

the  time  of  payment  from  six  to  sixty  days,  is  such  a  iDatcrial  alteration,  as 
discharges  an  indorser;  Davis  v.  Jenny,  1  Metcalf,  221.  But  an  alteration 
or  insertion  is  immaterial,  if  it  is  the  insertion  of  only  what  the  law  would 
imply,  or  the  correcting  of  a  mistake  ;  Hunt  v.  Adams  ;  Bowers  v.  Jewell ; 
or  the  addition  of  senseless  words;  Granite  Ptailway  Company  v.  Bacon,  15 
Pickering,  239  :  iu  Wheelock  v.  Freeman,  13  id.  1G5,  1G8,  the  test  as  to 
notes  is  said  to  consist  in  the  inquiry  <<  whether  the  notes  would  have  the 
same  legal  effect  and  operation  after  the  alteration  as  before." 

Although  a  material  alteration,  made  without  the  privity  of  the  party 
claiming  upon  it,  and  after  his  title  upon  it  has  been  vested  and  complete, 
will  not  discharge  the  liability  of  the  maker  of  the  note,  jet  care  must  be 
taken  as  to  the  mode  of  declaring.  You  must  not  declare  upon  the  note  in 
its  altered  state,  for  that  would  cause  a  variance  ;  see  Stephens  v.  Graham 
and  another,  7  Sergeant  &  llawle,  505  :  you  must  declare  upon  the  note  as 
it  was  actually  made  by  the  defendant :  and  it  is  safer  to  take  notice,  in  the 
declaration,  that  the  note  was  altered  without  the  privity  of  the  party ;  see 
Phoenix  Ins.  Co.  v.  Walden  &  Co.,  Anthon's  N.  P.  126,  note:  and  then  the 
jury  will  decide  from  the  note  and  the  explanatory  evidence,  whether  the 
defendant  made  a  note  such  as  that  declared  upon. 

The  cases  in  which  the  circumstance  of  the  alteration's  having  been 
made  without  the  privity  of  the  person  claiming,  prevents  its  being  fatal, 
are  those  in  which,  previously  to  the  alteration,  the  plaintiff  had  acquired  a 
good  title  to  the  money  on  the  note:  and  the  alteration  in  the  instrument 
makes  an  apparent  discrepancy  or  chasm  between  his  title  as  set  out  in  the 
declaration,  and  the  evidence;  and  it  is  this  apparent  variance  which,  when 
it  was  not  produced  by  the  fraud  of  the  party,  may  be  explained  away  by 
parol  evidence.  But  it  must  be  observed  that  there  are  cases,  in  the  suc- 
cessive transfer  or  negotiation  of  notes  and  bills,  where  a  variation  made  in 
the  instrument  during  these  transfers,  may  produce  a  chasm  in  the  title  of 
the  claimant ;  causing  the  bill  which  has  been  indorsed  to  him  to  be  not  the 
bill  made  by  the  defendant;  and  this  variance,  as  it  affects  the  title  of  the 
indorsee,  is  incurable,  although  there  be  no  fault  in  the  plaintiff.  This  is 
the  point  involved  in  Master  v.  Miller;  a  case  which  has  been  often  misun- 
derstood, and,  on  that  account,  sometimes  complained  of.  The  facts  are 
briefly  thus  :  "Wilkinson  &  Cooke  hold  Miller's  acceptance  of  a  note  dated 
26th  March ;  while  the  note  is  in  their  hands,  and  before  its  indorsement 
and  delivery  to  Master,  the  date  is  altered,  b}'  some  one  unknown,  to  20th 
March  ;  whereby  the  identity  of  the  note  is  destroyed,  and  it  becomes  a  new 
note.  It  is  this  last  note,  and  not  the  one  on  which  Miller  was  liable  to 
them,  which  they  indorse  to  Master.  As  Wilkinson  &  Cooke  hold  the  pro- 
missory note  of  Miller,  and  they  indorse  a  different  note  to  Master,  of  course 
Miller  is  not  liable  to  Master  on  either  note.  The  legal  relations  of  the 
parties  seem  to  be  thus  :  "Wilkinson  &  Cooke  can  recover  from  Miller  upon 
the  note  dated  20th  March,  if  they  can  prove  that  the  alteration  was  not 
made  with  their  privity,  and  cannot  recover  unless  they  prove  that:  "Wil- 
kinson &  Cooke  have  given  to  Master,  a  bill  dated  20th  March,  with  the 
name  of  an  acceptor  forged  upon  it  by  the  person  who  made  the  alteration, 
and  upon  this  note  they  are  liable  to  him.  The  decision  of  the  court  upon 
the  special  verdict,  which  found  as  a  fact  that  the  date  was  "altered"  from 
2Gth  March  to  20th  March,  is  certainly  the  only  decision  that  could  have 


M  A  S  T  E  R     V.    M  I  L  L  E  R.  821 

"been  given  :  and  Buller,  J  ,  docs  not  appear  to  have  differed  on  the  prin- 
ciple of  law;  but  he  attacks  the  facts  of  the  special  verdict,  and  declares 
that  the  "■  alteration"  was  only  a  blot,  by  which  the  bill  was  disfigured,  but 
not  transformed  ;  and  indeed  there  can  be  little  doubt  that  the  plaintiff  would 
be  entitled  to  recover  upon  such  a  state  of  facts  as  he  supposes :  viz.  where 
a  figure  was  changed  to  the  eye,  but  was  understood  and  taken  by  both 
indorsor  and  indorsee  to  be  original  fiijure — 26  and  not  20.  In  accordance 
with  the  principles  here  noted,  there  can  be  no  doubt  that  if  the  alteration 
had  been  made  without  the  privity  of  the  indorsee,  after  the  indorsement 
and  delivery  to  Master,  Master  would  have  been  entitled  to  recover. 

The  case  of  Bank  of  the  United  States  v.  Bussell  &  Boone,  3  Yeates,  391, 
is  similar  to  jMaster  v.  Miller,  and  was  decided  upon  its  authority :  the  only 
difference  being,  that  in  the  former  the  alteration  was  made  by  the  indorser, 
and  in  the  other,  its  being  made  while  the  note  was  in  the  hands  of  the 
indorser,  raised  a  presumption  against  him,  which  was  not  removed.  The 
plaintiffs  declared  on  two  notes  made  by  defendants ;  one  dated  9th  June, 
the  other  dated  19th  June.  The  special  verdict  found  that  the  defendants 
made  their  note  dated  9th  June,  in  favour  of  J.  T.  or  order;  who  altered 
the  date  to  19th  June;  and  discounted  it  with  the  plaintiff.  The  court 
decided  that  the  bank  could  not  recover  from  the  defendants  on  either  note. 
The  opinion  of  the  majority  in  Woodworth  v.  Bank  of  America,  19  John- 
son, 391,  in  error,  involves  the  same  principle :  the  plaintiff,  for  the  accom- 
modation of  the  maker,  indorsed  a  note  payable  to  himself,  and  delivered  it 
to  the  maker,  who  made  a  material  alteration  in  it,  and  discounted  it  with 
the  defendants  :  the  majority  held,  that  even  without  reference  to  the  error 
in  giving  notice,  the  plaintiff  was  not  liable  to  the  bank.  In  Nazro  &  Green 
V.  Fuller  &  Patterson,  24  Wendell,  374,  a  similar  alteration  by  payee  voided 
the  note  in  the  hands  of  the  indorsee  against  the  maker;  and  see  Haines  v. 
Dennett,  11  New  Hampshire,  181. 

H.  B.  W. 


WAUGH  V.  CARVER,  CARVER.  AND 
G  I  E  S  L  E  R. 


*C.  B.— MICHAELMAS.— 31  G.  3.  [*491] 

[RKPORTED  2  n.  BL.  235.] 

A.  iind  B.,  f-hip-nirents  nt  difTerent  ports,  enter  into  nn  ngreeuient  to  share,  in  cer- 
tain proportions,  the  prnfiis  of  their  respective  commissions,  and  the  discount  on 
tradesmen's  bills  employed  by  them  in  repairing  the  ships  consigned  to  them, &c. 
By  this  agreement  they  become  liable,  as  partners,  to  all  persons  with  whom 
either  contracts  as  such  agent,  though  the  agreement  provides  that  neitlier  shall 
be  answerable  for  the  acts  or  lo.sses  of  the  other,  but  each  for  his  own. 


822  smith's    leading   cases. 

He  wlio  takes  the  general   profits  of  a  partnership  must,  of  necessity,  be  made 

liable  to  the  losses. 
He  who  lends  his  name  as  a  partner  becomes,  as  against  all  the  rest  of  the  world, 

a  partner. 

This  action  of  assumpsit  for  goods  sold  and  delivered,  work  and  labour 
done,  &c.,  was  tried  at  Guildhall,  before  the  Lord  Chief  Justice,  when  a 
verdict  was  found  for  the  plaintiff,  subject  to  the  opinion  of  the  Court  on  a 
case  which  stated — 

That  on  the  24th  February,  1790,  the  defendants  duly  executed  articles 
of  agreement,  as  follows : — ''  Articles  of  agreement  indented,  made,  con- 
cluded, and  agreed  upon  this  twenty-fourth  day  of  February,  in  the  year  of 
our  Lord  one  thousand  seven  hundred  and  ninety,  between  Erasmus  Carver 
and  William  Carver,  of  Gcsport,  in  the  county  of  Southampton,  merchants, 
of  the  one  part,  and  Archibald  Giesler,  of  Plymouth,  in  the  county  of  Devon, 
merchant,  of  the  other  part.  Whereas  the  said  Archibald  Giesler,  some 
time  since,  received  appointments  from  several  of  the  principal  ship-owners, 
merchants,  and  insurers  in  Holland,  and  other  places,  to  act  as  their  agent 
in  the  several  counties  of  Hampshire,  Devonshire,  Dorsetshire,  and  Corn- 
r*4.Q91  ^^^^ '  ^^^  whereas  the  said  Erasmus  Carver  and  William  Carver 
L  "J  have  *for  a  great  number  of  years  been  established  at  Gosport  afore- 
said, in  the  agency  line,  under  the  firm  of  Erasmus  Carver  and  Son,  and 
hold  sundry  appointments  as  consuls  and  agents  for  the  Danish  and  other 
foreign  nations,  and  also  have  very  extensive  connections  in  Holland  and 
other  parts  of  Europe;  and  whereas  it  is  deemed,  for  their  mutual  interest 
and  the  advantage  of  their  frieuds,  that  the  said  Archibald  Giesler  should 
remove  from  Plymouth,  and  establish  himself  at  Cowes,  in  the  Isle  of  Wight; 
and  the  said  Erasmus  Carver  and  William  Carver,  and  the  said  Archibald 
Giesler,  have  agreed  that  each  should  allow  to  the  other  certain  portions  of 
each  other's  commissions  and  profits,  in  manner  hereafter  more  particularly 
mentioned  and  expressed.  Now,  therefore,  this  agreement  witnesseth,  and 
the  said  Archibald  Giesler  doth  hereby  for  himself,  his  executors  and  admin- 
istrators, covenant,  pronaise,  and  agree,  to  and  with  the  said  Erasmus  Carver 
and  William  Carver,  their  executors  and  assigns,  in  manner  following  (that 
is  to  say),  that  the  said  Archibald  Giesler  shall  and  will,  when  required  so 
to  do  by  the  said  Erasmus  Carver  and  William  Carver,  remove  from  Ply- 
mouth, and  establish  himself  at  Cowes  aforesaid,  for  the  purpose  of  carrying 
on  a  house  there  in  the  agency  line,  on  his  account ;  but  in  consequence  of  the 
assistance  and  recommendations  which  the  said  Erasmus  Carver  and  AVilliam 
Carver  have  agreed  to  render  in  support  of  the  said  house  at  Cowes,  the  said 
Archibald  Giesler  doth  covenant,  promise,  and  agree,  to  and  with  the  said 
Erasmus  Carver  and  William  Carver,  that  the  said  Archibald  Giesler,  his 
executors,  administrators,  and  assigns,  shall  and  will  well  and  truly  pay  or 
allow,  or  cause  to  be  paid  or  allowed  to  the  said  Erasmus  Carver  and  Wil- 
liam Carver,  their  executors,  administrators  or  assigns,  one  full  moiety  or 
half  part  of  the  commission  agency  to  be  received  on  all  such  ships  or 
vessels  as  may  arrive  or  put  into  the  port  of  Cowes,  or  remain  in  the  road 
to  the  westward  thereof  within  the  Needles,  of  which  the  said  Archibald 
Giesler  may  procure  the  address,  and  likewise  one  full  moiety  or  half  part 
of  the  discount  on  the  bills  of  the  several  tradesmen  employed  in  the  repairs 


W  A  U  G  H    V.    C  A  R  V  E  E.  823 

of  such  ships  or  vessels;  and  as  there  have  been  for  a  considerable  time  past, 
very  general  complaints  made  abroad  of  the  malpractices  and  impositions  that 
haveprevailcd  at  Cowes  aforesaid,  and  it  being  a  principal  object  of  the  said 
Erasmus  Carver  and  William  Carver  to  counteract  *and  prevent  such,   r;,;  (qq-i 
the  said  Archibald  Giesler  doth  further  covenant,  promise,  and  agree,  L         J 
to  and  with  the  said  Erasmus  Carver  and  William  Carver,  that  he  the  said 
Archibald  Giesler  shall  and  will  use  his  utmost  diligence  and  endeavours  to 
prevent  ships  or  vessels  arriving  at  the  east  end  of  the  Isle  of  Wight,  from 
being  carried  past  the  port  of  Portsmouth  to  that  of  Cowes ;  and  also  to 
induce  the  mariners  or  commanders  of  such  ships  or  vessels  as  may  come  in 
at  the  west  end  of  the  island  through  the  Needles,  whenever  it  is  practicable  and 
advisable,'to  proceed  to  Portsmouth,  and  there  put  themselves  under  the  direc- 
tion of  the  said  Erasmus  Carver  and  William  Carver,  and  that  he  will  consult 
and  advise  with  the  said  Erasmus  Carver  and  William  Carver  on  and  respecting 
the  affairs  of  such  ships  or  vessels  as  may  put  into  and  remain  at  the  port  of 
Cowes  under  the  care  of  the  said  Archibald  Gricsler,  and  pursue  such  mea- 
sures as  may  appear  to  the  said  Erasmus  Carver  and  William  Carver  for  the 
interest  of  the  concerned.     And  whereas   one  of  the  causes   of  complaint 
before  mentioned  is  the  very  heavy  charge  made  at  Cowes,  for  the  use  of 
warehouses  for  depositing  the  cargoes  of  ships  or  vessels,  the  said  Archibald 
Giesler  doth  also  covenant,  promise,  and  agree  to  and  with  the  said  Erasmus 
Carver  and  William  Carver,  that  they  the  said  Erasmus  Carver  and  William 
Carver  shall  be  at  full  liberty  to  engage  warehouses  at  Cowes  aforesaid,  on 
such  terms  and  in  such  manner  as  they  may  think  proper,  in  which  the  said 
Archibald  Giesler  shall  not  upon  any  grounds  or  pretence  whatsoever  either 
directly  or  indirectly  interfere.     And  the  said  Erasmus  Carver  and  William 
Carver,  for  the  considerations  hereinbefore  mentioned,  do  hereby  covenant, 
promise,  and  agree  to  and  with  the  said  Archibald  Giesler,  his  executors  and 
administrators,  that  they  the  said  Erasmus  Carver  and  William  Carver  shall 
and  will  well  and  truly  pay  or  allow,  or  cause  to  be  paid  or  allowed  to  the 
said  Archibald  Giesler,  his  executors,  administrators,  or  assigns,  three-fifth 
parts  or  shares  of  the  commission  or  agency  to  be  received  by  the  said  Eras- 
mus Carver  and  William  Carver,  on  account  of  all  such  ships  or  vessels,  the 
commanders  whereof  may,  in  consequence  of  the  endeavours,  interference, 
or  influence  of  the  said  Archibald  Giesler,  proceed   from  Cowes   to   Ports- 
mouth, and  there  put  themselves  under  the  direction  of  the  said  Erasmus 
Carver  and  William  Carver,  in  manner  hereinbefore  mentioned,  and  |-h;4q_i  t 
likewise  one  and  one  half  *per  cent,  on  amount  of  the  bills  of  the  L 
several  tradesmen  employed  in  the  repairs  of  such  ships  or  vessels,  together 
with  one-fourth  part  of  such   sum   or  sums   as   may  be  charged  or  brought 
into  account  for  warehouse  rent,  on  the  cargoes  of  such  ships   or  vessels 
respectively ;  and  also  one-sixth  part  of  such  sum  or  sums  as  may  be  charged 
or  brought  into  account  for  warehouse  rent  on  the  cargoes  of  such  ships  or 
ve.ssels  as  may  be  landed  at  Cowes   aforesaid  :  and  also  that  they  the  said 
Erasmus   Carver  and  William  Carver,  their  executors,  administrators,  and 
assiizns,  shall  and  will  well  and  truly  pay  or  allow,  or  cause  to  be  paid  or  allowed 
unto  the  said  Archibald  Giesler,  his  executors,  administrators,  or  assigns, 
one-fourth  part  or  share  of  the  commission  or  agency  to  be  received  by  the 
said  Erasmus  Carver  and  William  Carver,  on  account  of  all  such  ships  or 
vessels  that  may  arrive  or  put  into  the  port  of  Portsmouth,  or  remain  in 


821  smith's   leading   cases. 

the  limits  tlicreof,  under  the  care  and  direction  of  the  said  Erasmus  Carver 
and  William  Carver  :  and  likewise  one-half  per  cent,  on  amount  of  the  bills  of 
the  several  tradesmen  employed  in  the  repairs  of  such  ships  or  vessels  :  and 
in  order  to  prevent  any  misunderstanding  or  disputes,  with  respect  to  the 
commission  and  discount  to  be  paid  and  divided  between  the  said  Erasmus 
Carver  and  AVilliam  Carver,  and  the  said  Archibald  Giesler,  and  forfthe  better 
ascertaining  thereof,  it  is  hereby  mutually  covenanted,  declared,  and  agreed 
upon  between  the  said  Erasmus  Carver  and  William  Carver,  and  the  said 
Archibald  Giesler,  that  one-fifth  part  of  the  commission  or  agency  on  each  ship 
shall  and  may  be  first  retained  by  the  party  under  whose  care  such  ship  or 
vessel  shall  be,  as  a  full  compensation  for  clerks,  boat  hire,  and  all  other 
incidental  charges  and  expenses  in  regard  of  such  ships  or  vessels  respect- 
ively; after  which  deduction,  the  then  remaining  balance  of  such  commis- 
sions or  agency  shall  be  divided  between  the  said  Erasmus  Carver  and  Wil- 
liam Carver,  and  the  said  Archibald  Giesler,  in  the  proportion  hereinbefore 
mentioned;  and  that  such  commission  or  agency  shall  be  ascertained  by  one 
party's  producing  to  the  other  true  and  authentic  copies  of  the  general 
accounts  of  each  ship  or  vessel  under  their  respective  care  and  direction, 
signed  by  the  several  masters  of  such  ships  or  vessels  respectively,  and  no- 
tarially authenticated.  And  it  is  hereby  further  covenanted,  declared,  and 
P^  .qr-,  agreed  upon  by  and  between  the  said  Erasmus  Carver  *and  William 
L  J  Carver,  and  the  said  Archibald  Giesler,  that  this  present  contract 
and  agreement  shall  commence  and  take  effect  from  the  date  hereof,  and 
shall  continue  in  full  force  and  virtue  for  the  term  of  seven  years,  during 
the  whole  of  which  said  term  the  said  parties,  or  either  of  them,  shall  not 
upon  any  grounds  or  pretence  whatsoever,  directly  or  indirectly,  enter  into, 
or  form  any  connection,  contract,  or  agreement,  with  any  other  house  or 
houses,  or  with  any  person  or  persons  whatsoever,  concerning  the  commis- 
sion or  agency  of  ships  or  vessels,  that  may  during  the  said  term  put  into 
or  arrive  at  either  of  the  before-mentioned  ports  of  Portsmouth  or  Cowcs, 
nor  shall  the  said  Archibald  Giesler  at  the  expiration  of  the  said  term  of 
seven  years,  directly  or  indirectly,  establish  himself  at  Gosport  or  Ports- 
mouth, nor  on  any  grounds  or  pretences  whatsoever,  enter  into  or  form  any 
connection,  contract,  or  agreement  with  any  house  or  houses,  person  or  per- 
sons whomsoever  at  Gosport  or  Portsmouth  aforesaid.  And  also  that  they 
the  said  Erasmus  Carver  and  William  Carver,  and  the  said  Archibald  Giesler, 
shall  and  will  meet  at  Gosport  on  or  about  the  first  day  of  September  yearly, 
for  the  purpose  of  examining  and  settling  their  accounts,  concerning  the 
said  commission  business,  and  that  such  party  from  whom  the  balance  shall 
then  appear  to  be  due,  shall  and  will  well  and  truly  pay  or  secure  the  same 
unto  the  other  party,  his  executors,  administrators,  or  assigns,  on  or  before 
the  twenty-ninth  day  of  the  said  mouth  of  September  yearly.  And  it  is 
hereby  likewise  covenanted,  declared,  and  agreed,  by  and  between  the  said 
Erasmus  Carver  and  William  Carver,  and  the  said  Archibald  Giesler,  that 
each  party  shall  separately  run  the  risk  of,  and  sustain  all  such  loss  and 
losses  as  may  happen  on  the  advance  of  moneys  m  respect  of  any  ships  or 
vessels  under  the  immediate  care  of  cither  of  the  said  parties  respectively ; 
it  being  the  true  intent  and  meaning  of  these  presents,  and  of  the  parties 
hereunto,  that  neither  of  th'cm,  the  said  Erasmus  Carver  and  William  Carver 
and  Archibald  Giesler,  shall  at  anj^  time  or  times,  during  the  continuance  of 


WAUGH    V.    CARVER.  825 

this  agreement,  be  in  any  wise  injured,  prejudiced,  or  aifected  by  any  loss 
or  losses  that  may  happen  to  the  other  of  them,  or  that  either  of  them  shall 
in  any  degree  be  answerable  or  accountable  for  the  acts,  deeds,  or  receipts 
of  the  other  of  them,  but  that  each  of  them,  the  said  Erasmus  Carver  and 
"William  Carver  and  Archibald  Giesler,  shall  in  *his  own  person  and  r^j^ofi 
with  his  own  goods  and  eflfects  respectively  be  answerable  and  ac-  L  J 
countable  for  his  own  losses,  acts,  deeds  and  receipts.  Provided  always 
nevertheless,  and  it  is  hereby  declared  and  agreed  to  be  the  true  intent  and 
meaning  of  these  presents,  and  the  parties  hereunto,  that  in  case  the  houses 
of  either  of  them  the  said  Erasmus  Carver  and  William  Carver  and  Archi- 
bald Griesler  shall  dissolve  or  cease  to  exist,  from  any  circumstance  whatso- 
ever, before  the  expiration  of  the  said  term  of  seven  years,  that,  then  this 
present  agreement,  and  every  clause,  sentence,  and  thing  herein  contained, 
shall  from  thence  cease,  determine,  and  be  absolutely  void,  to  all  intents 
and  purposes  whatsoever;  but  without  prejudice  nevertheless  to  the  settle- 
ment of  any  accounts  that  may  then  remain  open  and  unliquidated,  between 
the  said  Erasmus  Carver  and  William  Carver,  and  the  said  Archibald  Giesler, 
■which  shall  be  settled  and  adjusted  within  the  space  of  six  months  next  after 
the  dissolution  of  the  houses  of  either  of  them  the  said  Erasmus  Carver  and 
William  Carver  and  Archibald  Giesler;  and  also  that  at  the  expiration  of 
the  said  term  of  seven  years,  it  shall  be  at  the  option  of  the  said  Erasmus 
Carver  and  William  Carver  to  renew  this  agreement  for  the  further  term  of 
seven  years,  under  and  subject  to  the  several  clauses,  covenants,  and  agree- 
ments hereinbefore  particularly  mentioned  and  set  forth,  which  the  said 
Archibald  Giesler  doth  hereby  engage  to  do.  And  it  is  hereby  further  co- 
venanted, declared  and  agreed,  by  and  between  the  said  Erasmus  Carver 
and  William  Carver  and  Archibald  Giesler,  that  these  presents  do  not,  nor 
shall  be  construed  to  mean  to  extend  to  such  ships  or  vessels  that  may  come 
to  the  address  of  either  of  the  said  parties  respectively,  for  the  purpose  of 
loading  or  delivering  any  goods,  wares,  or  merchandise,  it  being  the  true 
intent  and  meaning  of  these  presents,  and  the  parties  hereunto,  that  the 
foregoing  articles  shall  not,  nor  shall  be  construed  to  bear  reference  to  their 
particular  or  separate  mercantile  concerns  or  connections ;  and  that  in  case 
any  disputes  or  misunderstanding  shall  hereafter  arise  between  them,  respect- 
ing the  true  intent  and  meaning  of  any  of  the  articles  or  covenants  herein- 
before contained,  that  then  such  disputes  or  misunderstandings  shall  be 
submitted  to  the  arbitration  of  two  indifferent  persons,  one  to  be  chosen  by 
the  said  Erasmus  Carver  and  William  Carver,  and  the  other  by  the  r^Aq-j^ 
said  Archibald  Giesler;  and  in  case  such  two  persons  cannot  *agree  •-  -• 
about  the  same,  then  they  are  hereby  empowered  to  name  some  third  person, 
as  an  umpire ;  and  it  is  hereby  declared  and  agreed,  that  the  award  and 
determination  of  the  said  referees  and  umpire,  or  any  two  of  them,  con- 
cerning the  object  in  dispute,  shall  be  made  and  settled  six  calendar  months 
next  after  such  diiferences  shall  have  arisen  between  the  said  parties,  and 
shall  be  absolutely  final,  conclusive  and  binding.  And  lastly,  for  the  true 
performance  of  all  and  every  the  covenanis,  articles  and  agreements  herein- 
before mentioned,  they  the  said  Erasmus  Carver,  and  William  Carver  and 
Archibald  Giesler,  do  here  bind  themselves,  their  heirs,  executors  and  ad- 
ministrators, each  to  the  other,  in  the  penalty  of  five  thousand  pounds  of 
lawful  money  of  Great  Britain,  firmly  by  these  presents." 


826  s  M  I T  n '  s  t'i;  A  D  I N  G  cases. 

la  pursuance  of  these  articles,  Gieslcr  removed  from  Plymouth  and  settled 
at  Cowes,  where  he  carried  on  the  business  of  a  ship-agent,  in  his  own  name, 
and  contracted  for  the  goods,  &c.  which  were  the  subject  of  the  action. 

And  the  question  was,  Whether  the  defendants  were  partners  on  the  true 
construction  of  the  articles  ? 

This  was  argued  in  Trinity  Term  last,  by  Clayton,  Serjt.,  for  the  plaintiff, 
and  Rooke,  Serjt.,  for  the  defendants;  and  a  second  time  in  the  present 
term  by  Le  Blanc,  Serjt.,  for  the  plaintiff,  and  Lawrence,  Serjt.,  for  the 
defendants.  The  substance  of  the  arguments  for  the  plaintiff  was  as  fol- 
lows : — 

The  question  in  this  case  is.  Whether  the  articles  of  agreement  entered 
into  by  the  defendants  constituted  a  partnership  between  them  ?  That  such 
was  the  effect  of  these  articles  will  appear  by  considering  the  general  rules 
of  law  respecting  partners,  and  the  particular  circumstances  in  the  case. 
The  law  is,  that  wherever  there  is  a  participation  of  profits  a  partnership  is 
created ;  though  there  is  a  difference  between  a  participation  of  profits  and 
a  certain  annual  payment.  Thus  in  Grace  v.  Smith,  2  Black.  998,  a  retiring 
partner  lent  the  other  who  continued  in  business  a  certain  sum  of  money  at 
5/.  per  cent.,  and  was  to  have  an  annuity  of  300?.  a  year  for  seven  years, 
the  whole  of  which  was  secured  by  the  bond  of  the  partner  who  remained 
in  trade.  This  was  holden  not  to  make  the  lender  a  partner;  but  Chief 
Justice  De  Grey  there  said — '<  The  ^iuestion  is.  What  constitutes  a  secret 
partner  ?  Every  man  who  has  a  share  of  the  profits  of  a  trade  ought  also 
r*dQ8~l  ^*^  ^^^^  ^'^^  share  of  *the  loss;  and  if  any  one  takes  part  of  the  pro- 
L  -'  fits,  he  takes  a  part  of  that  fund  on  which  the  creditor  of  the  trader 
relies  for  his  payment.  I  think  the  true  criterion  is,  to  inquire  whether 
Smith  agreed  to  share  the  profits  of  the  trade  with  Robinson ;  or  whether 
he  only  relied  on  those  profits  as  a  fund  for  payment  ?"  And  Blackstone,  J., 
also  said — '<  The  true  criterion,  when  money  is  advanced  to  a  trader,  is  to 
consider  whether  the  profit  or  premium  is  certain  and  defined,  or  casual  and 
indefinite,  and  depending  on  the  accidents  of  trade.  In  the  former  case  it 
is  a  loan,  in  the  latter  a  partnership."  In  Bloxam  v.  Pell,  cited  in  Grace 
V.  Smith,  a  sum  secured  with  interest  on  bond,  and  also  an  agreement 
for  annuity  of  200?.  a  year  for  six  years,  if  Brooke  so  long  lived,  as 
in  lieu  of  the  profits  of  the  trade,  with  liberty  to  inspect  the  books,  was 
holden  by  Lord  Mansfield  to  constitute  a  partnership.  In  Hoare  v.  Dawes, 
Dougl.  371,  Svo.,  a  number  of  persons  unknown  to  each  other,  and  without 
any  communication  together,  employed  the  same  broker  to  purchase  tea  at 
a  sale  of  the  East  India  Company.  The  broker  bought  a  lot,  to  be  divided 
among  them  according  to  their  respective  orders,  and  pledged  the  warrants 
with  the  plaintiff,  for  more  money  than  they  turned  out  to  be  worth;  on 
the  broker  becoming  a  bankrupt,  the  plaintiff  sued  two  of  the  purchasers, 
considering  them  all  as  secret  partners,  and  liable  for  the  whole.  But  the 
Court  held  there  was  no  partnership,  and  Lord  Mansfield  said — ''  There  is 
no  understanding  by  one  to  advance  money  for  another,  nor  any  agreement 
to  share  with  one  another  in  the  profit  or  loss."  In  Coope  v.  Eyre,  1  H. 
Bl.  p.  37,  one  of  the  defendants  bought  a  quantity  of  oil  of  the  plaintiffs, 
and  the  other  defendants  had  agreed,  before  the  purchase,  each  to  take  cer- 
tain shares  of  the  quantity  bought ;  but,  when  bought,  each  to  do  with  his 
own  share  as  he  pleased ;  they  were  holden  not  to  be  partners,  for  there  was 


WAUGn    v.*  CARVER.  827 

no  share  of  profit  or  loss.  In  Young  v.  Axtell  and  anotlifir,(a,)  which  was 
an  action  to  recover  600?.  and  upwards  for  coals  sold  and  delivered  by  the 
plaintiflf,  a  coal-merchant,  an  agreement  between  the  defendants  was  given 
in  evidence,  stating  that  the  defendant  Mrs.  Axtell  had  lately  carried  on  the 
coal  trade,  and  that  the  other  defendant  did  the  same  :  that  Mrs.  Axtell  was 
to  bring  what  customers  she  could  into  the  business,  and  that  the  other  was 
to  pay  her  an  annuity,  and  also  2s.  *for  every  chaldron  that  should 


be  sold  to  those  persons  who  had  been  her  customers,  or  were  of  her 


[*499] 


recommending.  The  plaintiff  also  proved,  that  bills  were  made  out  for 
goods  sold  to  her  customers  in  their  joint  names;  and  the  question  was, 
whether  Mrs.  Axtell  was  liable  for  the  debt  ?  Lord  Mansfield  said,  "  he 
should  have  rather  thought  on  the  agreement  only,  that  Mrs.  Axtell  would 
be  liable,  not  on  account  of  the  annuity,  but  the  other  payment,  as  that 
would  be  increased  in  proportion  as  she  increased  the  business.  However, 
as  she  suffered  her  name  to  be  used  in  the  business,  and  held  herself  out  as 
partner,  she  was  certainly  liable,  though  the  plaintiff  did  not  at  the  time  of 
dealing,  know  that  she  was  a  partner,  or  that  her  name  was  used."(i)  And 
the  jury  accordingly  found  a  verdict  for  the  plaintiff. 

It  appearing,  therefore,  from  these  authorities,  that  a  participation  of  pro- 
fits is  sufficient  to  constitute  a  partnership,  it  remains  to  be  seen,  whether 
the  agreement  in  question  did  not  establish  such  a  participation  of  the  profits 
of  the  agency  business  between  the  defendants  as  to  make  them  liable  as 
partners.  In  the  first  place,  it  is  stated  in  the  recital,  that  the  Carvers  and 
Giesler  had  agreed  to  allow  each  other  certain  proportions  of  each  other's 
commissions  and  profits.  It  is  then  agreed,  that  Giesler  should,  when  re- 
quired by  the  Carvers,  remove  from  Plymouth  to  Cowes,  and  there  establish 
a  house  :  and  in  consequence  of  the  Carvers'  recommendation  and  assistance 
to  support  the  house,  Giesler  is  to  allow  them  a  moiety  of  the  commission 
on  ships  putting  into  the  port  of  Cowes,  or  remaining  in  the  road  to  the 
westward,  addressed  to  him,  and  a  moiety  of  the  discount  on  the  tradcmeu's 
bills  employed  on  such  ships :  he  also  covenants  to  advise  with  the  Carvers 
and  pursue  such  measures  as  may  appear  to  them  to  be  for  the  interest  of 
the  concerned.  On  the  other  hand,  the  Carvers  agree  to  pay  Giesler  three- 
fifths  of  the  agency  of  all  vessels  which  shall  come  from  Cowes  to  Portsmouth, 
and  put  themselves  under  the  direction  of  the  Carvers,  by  the  recommenda- 
tion of  Giesler,  one  half  per  cent,  on  tradesmen's  bills,  and  certain  propor- 
tions of  warehouse  and  agency.  Each  party  is  likewise  to  produce  true 
copies  of  the  accounts  of  the  ships  to  the  other,  and  neither  is  to  form  any 
other  connection  in  the  agency  business  during  the  period  agreed  upon;  and 
they  are  to  meet  once  a  year  at  Gosport  to  settle  their  mutual  accounts,  and 
*pay  over  the  balance.  Now,  it  was  not  possible  to  express  in  p*cnn-i 
clearer  terms  an  agreement  to  participate  in  the  profits  of  the  busi-  L 
ness  of  ship  agents,  and  to  establish  a  joint  concern  between  the  two  houses. 
It  may  be  objected,  that  there  is  a  proviso,  that  neither  of  the  parties  shall 
be  answerable  for  the  losses  of  the  other ;  but  this  would  certainly  be  not 
binding  on  the  creditors.     Lord  Craven  v.  Widdows,  2  Chan,  Cas.  139  j 

{(J)  At  Guildhall  sittings  after  Hil.  24  G.  3,  cor.  Lord  Mansfield,  cited  by  Mr.  Serjt.  Le 
Blanc,  from  a  MS.  note. 

(/;)  Sod  quaere;  vide  the  expressions  of  Parke,  J.,  in  Dickinson  v.  Valpy,  10  B.  &.  C. 
140. 


828  smith's   leading   oases. 

Heath  v.  Percival,  1  P.  "Wms.  682;  Hich  v.  Coe,  Cowp.  Go6.  An  agree- 
ment to  share  profits  alone,  cannot  prevent  the  legal  consequence  of  also 
sharing  losses,  for  the  benefit  of  creditors.  Perhaps  it  may  be  difficult  to 
find  an  exact  definition  of  a  partnership,  but  it  has  always  been  holden,  that 
where  there  is  a  share  of  profits,  there  shall  also  be  a  share  of  losses ;  for 
whoever  takes  a  part  of  the  capital,  or  of  the  profits  upon  it,  takes  a  part  of 
that  fund  to  which  the  public  have  given  credit,  and  to  which  they  look  for 
payment.  If  there  be  no  original  capital,  the  profits  of  the  trade  are  them- 
selves a  capital,  to  which  the  creditor  is  to  have  recourse.  Thus,  if  in  the 
year  1791  the  profits  were  lOOL,  and  in  the  year  1792  there  was  a  loss  of 
10/.,  of  course  the  profits  of  the  preceding  j^ear  would  be  the  stock  to  which 
the  creditor  would  resort  for  the  payment  of  the  debts  which  constituted 
part  of  the  loss  of  the  succeeding  year.  Indeed  it  is  by  no  means  necessary 
that,  to  constitute  a  partnership,  the  parties  should  advance  money  by  way 
of  capital;  many  joint  trades  are  carried  on  without  any  such  advance: 
there  is  therefore  no  ground  to  object,  in  the  present  instance,  that  neither 
party  brought  any  money  into  a  common  stock,  in  order  to  carry  on  their 
business. 

On  behalf  of  the  defendants,  the  arguments  were  as  follow:  The  question 
is.  Whether  this  agreement  creates  such  a  partnership  as  to  make  all  liable 
to  the  debts  of  each  ?  A  partnership  may  be  defined  to  be,  "  the  relation 
of  persons  agreeing  to  join  stock  or  labour,  and  to  divide  the  profits."  Thus 
Puffendorf  described  it,  "  Contractus  socictati's  est,  quo  duo  j^^ui'csve  inter 
se  pecuniam,  7-es,  ant  operas  covferunt,  eo  sane,  vt  quod  inde  redit  lucri 
inter  singidos pro  rata  dividatur,"  lib.  5,  cap.  8.  Partners,  therefore,  can 
only  be  liable  on  the  ground  of  their  being  joint  contractors,  or  as  partaking 
of  a  joint  stock.  In  many  cases,  in  which  questions  of  this  sort  have  arisen, 
and  the  persons  have  been  holden  to  be  partners,  goods  had  been  sold,  and 
r*^mi  ^  common  *fund  established,  to  which  the  creditor  might  look  for 
L  -■  payment;  and  there  it  was  highly  reasonable  to  hold,  that  if  many 
persons  purchase  goods  on  their  joint  account,  though  in  the  name  of  one 
only,  and  are  to  share  the  profits  of  a  re-sale,  they  shall  be  considered  as 
joint  contractors,  and  therefore  liable  as  partners.  So  if  a  joint  stock  or 
capital  or  joint  labour  be  employed,  each  party  is  interested  in  the  thing  on 
which  it  is  employed,  and  in  the  profits  resulting  from  it.  But  in  the  pre- 
sent case,  there  is  no  joint  contract  for  the  purchasing  goods,  nor  any  joint 
stock  or  labour,  but  the  parties  are  to  share,  in  certain  proportions,  the  pro- 
fits of  their  separate  stock,  and  separate  labour:  there  was  no  house  of  trade 
or  merchandise  established,  but  two  distinct  houses,  for  the  purpose  of  carry- 
ing on  the  business  of  ship  agency,  on  two  distinct  accounts.  The  profits 
are  not  a  capital,  unless  carried  on  as  capital,  and  not  divided.  Ship  agents 
are  not  traders,  but  their  employment  is  merely  to  manage  the  concerns  of 
such  ships  in  port  as  are  addressed  to  them.  Suppose  two  fishermen  were 
to  agree  to  share  the  profits  of  the  fish  that  each  might  catch,  one  would  not 
be  liable  for  mending  the  nets  of  the  other.  So  if  two  watermen  agree  to 
divide  their  fares,  neither  would  be  answerable  for  repairing  the  other's 
boat.  Nor  would  any  artificers  who  entered  into  similar  agreements  to  share 
the  produce  of  their  separate  labour,  be  obliged  to  pay  for  each  other's  tools 
or  materials.  And  this  is  not  an  agreement  as  to  the  agency  of  all  ships 
with  which  the  parties  were  concerned,  for  such  as  came  to  the  particular 


W  A  U  G  H     V.     CARVER.  829 

address  of  one  were  to  be  the  sole  profit  of  that  one.  It  was  indeed  clearly 
the  intent  of  the  parties  to  the  agreement,  and  is  so  expressed,  that  neither 
should  be  answerable  for  the  losses,  acts,  or  deeds  of  the  other,  and  that 
the  agreement  should  not  extend  to  their  separate  mercantile  concerns.  It 
must  therefore  be  a  strong  and  invariable  rule  of  law  that  can  make 
the  parties  to  the  agreement  responsible  for  each  other,  against  their 
express  intent.  But  all  cases  of  partnership  which  have  been  hitherto 
decided  have  proceeded  on  one  or  other  of  the  following  grounds:  1. 
Either  there  has  been  an  avowed  authority  given  to  one  party  to  contract 
far  the  rest.  2.  Or  there  has  been  a  joint  capital  or  stock.  3.  Or,  in 
cases  of  dormant  partners,  there  has  been  an  appearance  of  fraud  in  holding 
out  false  colours  to  the  world.  *Xovv  the  present  case  is  not  within  |-^^„_^-, 
cither  of  those  principles :  because  there  was  no  authority  given  to  L  ""J 
either  party  to  contract  for  the  others;  nor  was  there  any  joint  capital  or 
stock;  nor  were  the  public  deceived  by  any  false  credit;  no  fraud  is  stated 
or  attempted  to  be  proved,  nor  can  the  Court  collect  from  the  articles  that 
any  was  intended;  it  was  merely  a  purchase  of  Griesler's  profits  by  giving 
him  a  share  of  those  of  the  Carvers,  to  prevent  a  competition  between 
them. 

Lord  Chief  Justice  Eijre. — This  case  has  been  extremely  well  argued,  and 
the  discussion  of  it  has  enabled  me  to  make  up  my  mind,  and  removed  the 
only  difficulty  I  felt,  which  was,  whether,  by  construing  this  to  be  a  partner- 
ship, we  should  not  determine,  that  if  there  was  an  annuity  granted  out  of 
a  banking-house  to  the  widow,  for  instance,  of  a  deceased  partner,  it  would 
make  her  liable  to  the  debts  of  the  house,  and  involve  her  in  a  bankruptcy  1 
But  I  think  this  case  will  not  lead  to  that  consequence("j"). 

The  definition  of  a  partnei'ship  cited  from  Puffendorf  is  good  as  between 
the  parties  themselves,  but  not  with  respect  to  the  world  at  large.  If  the 
question  were  between  A.  and  B.,  whether  they  were  partners  or  not,  it 
would  be  very  well  to  inquire,  whether  they  had  contributed,  and  in  what 
proportions,  stock  or  labour,  and  on  what  agreements  they  wore  to  divide  the 
profits  of  that  contribution.  But  in  all  these  cases  a  very  difi'erent  question 
arises,  in  which  the  definition  is  of  little  service.  The  question  is  generally, 
not  between  the  parties,  as  to  what  shares  they  shall  divide,  but  respecting 
creditors,  claiming  a  satisfaction  out  of  the  funds  of  a  particular  house,  who 
shall  be  deemed  liable  in  regard  to  these  funds.  Now  a  c'asc  may  be  stated, 
in  which  it  is  the  clear  sense  of  the  parties  to  the  contract,  that  they  shall 
not  be  partners;  that  A.  is  to  contribute  neither  labour  nor  money,  and,  to 
go  still  farther,  not  to  receive  any  profits.  But  if  he  will  lend  his  name  as 
a  partner,  he  becomes,  as  against  all  the  rest  of  the  world,  a  partner,  not 
upon  the  ground  of  the  real  transaction  between  them,  but  upon  principles 
of  general  policy,  to  prevent  the  frauds  to  which  creditors  would  be  liable 
if  they  were  to  suppose  that  they  lent  their  money  upon  the  apparent  credit 
of  three  or  four  persons,  when  in  fact  they  lent  it  only  to  two  of  p^Kf^n^l 
them,  to  whom,  without  the  others,  they  *would  have  lent  nothing.  L  J 
The  argument  gone  into,  however  proper  for  the  discussion  of  the  question, 
is  irrelevant  to  a  great   part  of  the  case.     Whether  these  persons  were  to 

t  Provided  llie  annuity  be  not  dependent  on  the  profits  of  the  business.  Dlo.xain  v.  Pell, 
2  W.  Bl.  9U9  ;  Expartc  Wheeler,  Buck.  4d. 


830  smith's    leading    cases. 

interfere  more  or  less,  with  their  advice  and  directions,  and  many  small  parts 
of  the  agreement,  I  lay  entirely  out  of  the  case ;  because  it  is  plain  upon 
the  construction  of  the  agreement,  if  it  be  construed  between  the  Carvers 
and  Giesler,  that  they  were  not,  nor  ever  meant  to  be,  partners.  They 
meant  each  house  to  curry  on  trade  without  risk  of  each  other,  and  to  be  at 
their  own  loss.  Though  there  was  a  certain  degree  of  control  at  one  house, 
it  was  without  an  idea  that  either  was  to  be  involved  in  the  consequences  of 
the  failure  of  the  other,  and  without  understanding  themselves  responsible 
for  any  circumstances  that  might  happen  to  the  loss  of  either.  That  was  the 
agreement  between  themselves.  But  the  question  is,  whether  they  have  not  by 
parts  of  their  agreement  constituted  themselves  partners  in  respect  to  other 
persons  ?  The  case  therefore  is  reduced  to  the  single  point,  whether  the 
Carvers  did  not  entitle  themselves,  and  did  not  mean  to  take  a  moiety  of  the 
profits  of  Griesler's  house,  generally  and  indefinitely  as  they  should  arise,  at 
certain  times  agreed  upon  for  the  settlement  of  their  accounts.  That  they 
have  so  done,  is  clear  upon  the  face  of  the  agreement :  and  upon  the  autho- 
rity of  Grace  v.  Smith(o),  he  who  takes  a  moiety  of  all  the  profits  indefin- 
itely, shall,  by  operation  of  law,  be  made  liable  to  losses,  if  losses  arise ; 
upon  the  principle  that,  by  taking  a  part  of  the  profits,  he  takes  from  the 
creditors  a  part  of  that  fund  which  is  the  proper  security  to  them  for  the 
payment  of  their  debts.  That  was  the  foundation  of  the  decision  in  Grace 
V.  Smith,  and  I  think  it  stands  upon  the  fair  ground  of  reason.  I  cannot 
agree  that  this  was  a  mere  agency,  in  the  sense  contended  for  on  the  part  of 
the  defendants,  for  there  was  a  risk  of  profit  and  loss :  a  ship  agent  employs 
tradesmen  to  furnish  necessaries  for  the  ship;  he  contracts  with  them, 
and  is  liable  to  them  :  he  also  makes  out  the  bills  in  such  a  way  as  to 
determine  the  charge  of  commission  to  the  ship-owners.  With  respect 
to  the  commission,  indeed,  he  may  be  considered  as  a  mere  agent;  but, 
but,  as  to  the  agency  itself,  he  is  as  much  a  trader  as  any  other  man,  and 
r*f^041  ^^^^^  ^^  ^^  much  risk  of  profit  and  loss  to  the  person  with  whom  he 
L  -I  contracts,  in  the  tninsactions  with  *him,  as  any  other  trader.  It  is 
true  he  will  gain  nothing  but  his  discount,  but  that  is  a  profit  in  the  trade, 
and  there  may  be  losses  to  him,  as  well  as  to  the  owners.  If  therefore  the 
principle  be  true,  that  he  who  takes  the  general  profits  of  a  partnership  must 
of  necessity  be  made  liable  to  the  losses,  in  order  that  he  may  stand  in  a 
just  situation  with  regard  to  the  creditors  of  the  house,  then  this  is  a  case 
clear  of  all  difficulty.  For  though,  with  respect  to  each  other,  these  persons 
were  not  to  be  considered  as  partners,  yet  they  have  made  themselves  such, 
with  regard  to  their  transactions  with  the  rest  of  the  world.  I  am  therefore 
of  opinion  that  there  ought  to  be  judgment  for  the  plaintiff. 

Gould,  J.,  I  am  of  the  same  opinion. 

Heath,  J.,  I  am  of  the  same  opinion. 

Rooke,  J.,  having   argued   the    case    at   the    bar,   declined    giving  any 
opinion. 

Judgment  for  the  plaintiff. (?>) 

(a)  2  Black.  998. 

(I))  See  C'oopc  V.  Eyre,  1  II.  Bi.  p. 37,  and  the  note  there. 


WAUGH    V.     CARVER. 


831 


Partnership  is  either  actual  or 
nominal.  Actual  partnership  takes 
place  wiien  two  or  more  persons  ngree 
to  combine  property,  or  labour,  or  both, 
in  a  common  undertaking,  sharing  profit 
and  loss.  "  I  have  always,"  says  Tindal, 
C.  J.,  in  Green  v.  Beesley,  2  Bing.  N. 
C.  112,  "understood  the  definition  of 
partnership  to  be  a  mutual  participation 
in  profit  and  loss." 

But,  with  respect  to  third  persons,  an 
actual  partnership  is  considered  by  the 
law  to  subsist  wherever  there  is  a  par- 
ticipation in  the  profits,  even  though  the 
participant  may  have  most  expressly 
stipulated  against  the  usual  incidents  to 
tliat  relation.  (See  Bond  v.  Pittard,  3 
Mee.  &  W.  3i37.)  Such  stipulations 
will  indeed  hold  good  between  himself 
and  his  companions,  but  will  in  no  wise 
diminish  his  liability  to  third  persons. 
And  this  is  founded  on  a  principle  of 
justice  to  the  community  ;  for,  to  use  the 
language  of  the  L.  C.  J.  in  the  principal 
case,  by  taking  part  of  the  profits  he 
takes  from  the  creditors  a  part  of  that 
fund  which  is  the  proper  security  to 
them  for  the  payment  of  their  debts. 
See  Cheap  v.  Cramond,4  B.  &  Ad.  668; 
Exp.  Wheeler,  Buck,  48;  Hoare  v. 
Dawes,  Dougl.371.  Nor  does  it  signify 
whether  he  receive  them  for. his  own 
benefit  or  as  trustee  for  others,  since  the 
mischief  to  the  creditors  would  be  the 
same  ff  he  were  to  be  e.xempt  from  liabi- 
lity in  either  case.  Wightman  v.  Town- 
roe,  1  M.  &S.  412.  Equally  indifl^erent 
is  it  whether  his  share  be  large  or  small. 
Rpx  V.  Dodd,  9  East,  527.  In  Hoare  v. 
Dawes,  Dougl.  371,  Lord  Mansfield 
gives  another  reason  for  holding  one  who 
has  placed  money  in  the  firm,  and  is  to 
receive  part  of  the  profits,  liable,  viz. 
that  he  would  otherwise  receive  usuri- 
ous interest  without  risk.  [This  reason, 
at  no  time  a  very  satisfactory  one,  nor 
at  all  necessary  to  sustain  the  proposition 
for  which  ii  was  adduced,  is  now  taken 
av/ay  in  the  majority  of  cases  by  the 
operation  of  the  act  for  the  amendment 
of  the  usury  law,  2  &  3  Vict.  c.  37; 
continued  by  8  &  9  Vict.  c.  102.] 

On  the  above  principles  it  is  that  a 
dormant  partner,  i.  e.  a  partner  whose 
name  does  not  appear  to  the  world  as 
part  of  the  firm,  is  held  responsible  for 
its  engagement,  even  to  those  who,  when 
they  contracted  with  the  firm,  were 
ignorant  of  his  existence.  E.xp.  Gellar, 
Flose,  297;  Wintle  v.  Crowther,  1  C.  & 
P.    316;  1  Tyrw.    210;    Robinson    v. 


Wilkinson,  3  Price,  539.  In  one  re- 
spect, however,  there  exists  very  con- 
siderable difference  ^between  r*rnc-| 
the  liabilities  of  an  ostensible  '-  -I 
partner  and  those  of  a  dormant  one;  for 
the  liability  of  a  partner  who  has  appear- 
ed in  the  firm,  in  respect  of  the  acts- 
and  contracts  of  his  copartners,  con- 
tinues even  after  the  dissolution  of  the 
partnership,  and  the  removal  of  his  name 
therefrom,  until  due  notice  has  been 
given  of  such  dissolution.  See  Parkin 
V.  Carruthers,  3  Esp.  248;  Graham  v. 
Hope,  Peake,  154.  And  though,  as  far 
as  the  public  at  large  are  concerned, 
notice  in  the  Gazette  is  held  sufficient 
for  this  purpose,  Godfrey  v.  Turnbull,  1 
Esp.  371  ;  Wrightson  v.  Pullan,  1 
Stark.  375;  yet,  to  persons  who  have 
dealt  with  the  firm,  more  specific  in- 
formation must  be  given.  Kir  wan  v. 
Kirwan,  4  Tyrw.  491.  And  this  is 
generally  effected  by  circulars.  See 
iSlewsome  v.  Coles,  2  Camp.  617;  Jen- 
kins V.  Blizard,  1  Stark.  418.  But  if 
a  fair  presumption  of  actual  notice 
can  be  raised  from  other  circumstances, 
that  will  be  sufficient.  M'lverv.  Hum- 
ble, 16  East,  169.  Thus,  a  change  in 
the  wording  of  checks  has  been  held  no- 
tice to  a  p;irty  using  them.  Barfoot  v. 
Goodall,  3  Camp.  147.  [But  it  is  not 
to  be  taken  as  a  legal  incident  of  the 
position  of  a  fZor/na?ii  partner,  but  rather 
as  a  probability  arising  from  the  greater 
likelihood  of  his  share  in  the  firm  being 
unknown  to  those  who  deal  with  it,  that 
his  liability  ceases  upon  the  actual  dis- 
solution of  the  partnership,  whilst  that 
of  an  ostensible  partner  continues,  to- 
wards persons  who  have  no  notice  of 
the  dissolution  ;  for  although,  generally 
speaking,  a  dormant  partner  may  retire 
without  giving  notice  to  the  world.  Heath 
v.  Sansoin.  4  B.  &  Ad.  172;  yet,  even 
such  a  partner  remains  liable  to  persons 
who  became  aware  of  his  partnership 
whilst  it  lasted,  and  continued  their 
dealings  with  the  firm  under  the  belief 
that  he  still  remained  a  member  of  it. 
If  such  persons  were  not  made  aware  of 
the  dissolution,  it  might  be  inferred  that 
they  dealt  on  the  faith  of  the  partner- 
ship ;  and,  as  to  them,  unless  the  circum- 
stances of  the  case  rebutted  such  an  in- 
ference, even  a  dormant  partner  would 
still  be  liable,  Evans  v.  Drummond,  4 
Esp.  89,  Lord  Kenyon;  Carter  v.  Wha- 
ley,  I  n.  &,  Ad.  13,  per  Litiledale  and 
Parke,  JJ.;  Farrar  v.  Deflinne,  1  Car.  & 
K.  580,  Cresswell,  J. 


832 


SMITHS     LEADING    CASES. 


It  has  been  said  that  a  participation 
in  the  profits  constitutes  a  partnership. 
Hut  the  participation  must  be  that  of  a 
person  having  a  ri^'iit  to  a  share  of  the 
prolils  and  to  an  account  in  order  to  as- 
certain his  share,  not  that  of  a  mere 
servant  or  agent  receiving,  in  respect  of 
his  wages,  a  sum  proportioned  to  a  share 
of  the  profits,  or  wiiich  may  be  partly 
furnisiied  out  of  the  profits.  Tlie  dis- 
tinctions on  this  subject  run  so  fine,  that 
it  will  not  be  uninteresting  briefly  to 
review  the  principal  cases,  and  endea- 
vour to  e.xtract  from  them  some  rules 
fur  ascertaining  when  a  particular  con- 
tract falls  under  the  head  oi' ]}artnership, 
when  under  that  of  agency  or  service. 
In  Dixon  v.  Cooper,  3  Wils.  40,  in  an 
action  for  goods  sold  and  delivered,  the 
plaintiff,  in  order  to  prove  the  delivery, 
called  his  factor,  who  was  to  receive  a 
shilling  in  the  pound  upon  the  price: 
he  was  held  competent.  It  should  be 
observed  on  this  case,  that  although  the 
factor  would  have  incidentally  come  in 
for  a  share  of  the  profits  arising  from  the 
sale,  yet  he  did  not,  like  a  partner,  de- 
pend for  his  remuneration  upon  the  con- 
tingency of  profits  accruing,  since,  as 
his  commission  was  calculated  upon  the 
price,  he  would  have  been  entitled  to  it 
even  had  no  profits  been  obtained ;  and 
this  very  distinction  has  been  acted  on 
in  Dry  v.  Boswell,  1  Camp.  3'29,  where 
it  was  held  that  an  agreement  that  A. 
should  work  B.'s  lighter,  and  that  they 
should  share  the  profits,  constituted  a 
partnership;  but  an  agreement  that  A. 
should  receive  half  her  gross  earnings 
only  rendered  him  B.'s  agent  for  tije 
purpose  of  workmg  her.  The  case  of 
Benjamin  v.  Porteus,  2  H.  Bl.  590,  went 
somewhat  farther.  There,  in  an  action 
for  the  price  of  indigo,  sold  at  three  shil- 
lings per  pound,  the  broker,  being  called 
to  prove  the  contract,  stated  on  the  voir 
dire,  that  he  was  to  have  all  that  he 
could  gel  for  the  indigo  above  halt"-a- 
crown  per  pound,  instead  of  the  usual 
commission  on  the  price:  Eyre,  C.  J., 
rejected  him  as  .incompetent,  and  direct- 
ed a  nonsuit,  which  was,  however,  set 
aside  by  the  Court  of  Common  Fleas, 
Eyre,  C.  J.,  dissentiente. 

In  Wilkinson  v.  Frasier,  4  Esp.  182, 
it  was  iield  that  an  agreement  to  divide 
t!.e  produce  of  a  whaling  voyage  be- 
tween the  captain,  seamen,  and  owners, 
did  not  constitute  them  partners,  so  as 
to  prevent  the  seamen  from  recovering 
their  share  in  an  action.     This  case  goes 


no  further  than  Dixon  v.  Cooper,  since 
the  seamen  would  have  been  entitled, 
though  the  owners  might  have  gained 
no  profit  by  the  voyage.  [See  The  Riby 
Grove,  2  Rob.  52.]  In  Mairv.  Glennie, 
4  M.  &  S.  240,  Lord  Ellenborough  ex- 
pressed an  opinion,  that  an  agreement 
to  remunerate  a  captain  with  one-fifth 
part  of  the  profit  on  the  intended  voyage 
on  ship  and  cargo  did  not  constitute 
him  a  partner.  But  it  was  sufficient 
fur  the  decision  in  that  case  to  hold,  that 
it  did  not  constitute  him  a  partner  i/i  the 
ship  and  cargo,  so  as  to  prevent  a  trans- 
feree from  obtaining  such  possession  of 
it  as  would  prevent  it  from  remaining 
in  the  ordering  and  disposition  of  the 
transferor,  who  afterwards  became  bank- 
rupt. Wish  V.  Small,  1  Camp.  831,  is 
sometimes  cited  on  this  subject,  but  in 
fact  bears  little,  if  at  all,  upon  it. 
There,  A.  depastured  B.'s  bullocks,  and 
was  to  have  half  the  profit  of  their  sale. 
In  an  action  against  the  vendee  by  B. 
alone,  he  contended  that  A.  was  a  part- 
ner, and  should  have  been  joined.  It 
was  answered  that  A.  was  not  a  partner 
in  the  bullocks,  *but  in  the  pro-  r*xn(^-| 
fits,  to  which  Thompson,  B.,  at  '-  '  -' 
N.  P.,  and  the  court  in  banc,  afterwards 
assented.  In  that  case,  tlierefbre,  it 
will  be  seen  that,  so  far  from  the  dis- 
tinction between  an  agent  and  a  partner 
being  acted  upon,  a  partnership  was 
admitted  to  exist  in  the  profits. 

It  must  be  remarked,  that  in  Wilkin- 
son v.  Frasier  tlie  question  was  between 
the  seamen  and  the  captain,  not  between 
the  seamen  and  third  parties  ;  and  that 
neither  in  Benjamin  v.  Porteus,  Dixon 
V.  Cooper,  or  Wair  v.  Glennie,  was  the 
liability  of  an  agent,  receiving  part  of 
the  profits  as  his  remuneration,  to  third 
parties,  at  all  in  question.  In  the  two 
former  cases  he  was  equally  interested 
in  the  result  of  the  cause,  whether  he 
were  a  factor  or  a  partner,  and,  if  con- 
sidered a  factor,  would  be  rendered 
competent  only  by  an  exception  in  the 
law  of  evidence  introduced  for  gene- 
ral convenience,  not  on  account  of  the 
difference  between  the  liabilities  of  a 
factor  and  those  of  a  principal.  Now  it 
seems  very  reasonable  to  allow  persons 
sharing  in  the  profits  of  an  adventure  to 
exclude,  by  express  agreement,  the  re- 
lation of  partnership  from  arising  as  be- 
tween themselves,  and  at  the  same  time 
to  prohibit  them  from  so  excluding  il  to 
third  persons  dealing  with  them  ;  for 
the    rights   and    liabilities   of   partners 


AV  A  U  G  H    V.     CARVER. 


833 


intej-  se  have  been  created  by  the  law 
for  their  own  convenience,  and  quilibet 
potest  renunciare  juri  pro  se  intro- 
ducto.  But  to  allow  a  person  who  re- 
ceives part  of  the  profits  to  shield  him- 
self from  the  creditors  of  the  firm  under 
the  plea  that  lie  receives  them  as  an 
a^ent,  would  militate  against  tlie  reason 
g-iven  by  Eyre,  C.  J.,  in  the  principal 
case,  who  places  the  liability  of  a  par- 
ticipant on  the  ground  that,  by  taking 
part  of  the  profits,  he  takes  from  the 
creditors  part  of  their  security. 

Thus,  as  we  have  already  seen,  per- 
sons who  participate,  even  as  principals, 
in  the   profits  of  an  adventure,  may,  by 
express  stipulation,  prevent  the  ordinary 
incidents  of  partnership  from  arising  as 
between  themselves,  but  cannot  except 
themselves  from  any  tittle  of  the   usual 
responsibility  of  members  of  a  firm  to 
strangers.     For  instance,  in  the  princi- 
pal  case,  the   Lord  C.  J.  intimates  his 
strong  opinion   that  tiie   Carvers  were 
not   partners  with    Giesler  as  between 
tliemselvis,  though  they  were  so  as  to 
the  rest  of  the  world;  and  Abbott,  C. 
J.,   commenting  on  Waugh  v.   Carver, 
states  the  principle  of  it  to  be,  "  that  if 
two  houses  agree  that  each  shall  share 
with  tiie  other  the  money  received  in  a 
certain  part  of  the  business,  they  are,  as 
to  such   part,  partners  as  to  those  who 
deal  with  them  therein,  though  they  may 
not  be  partners  inter  se."    'J'his  distinc- 
tion was  also  expressly  recognised  by 
Lord  Ellenborough  in  Hesketh  v.  Blan- 
chard,  4  East,  143.     Li  that  case,  A. 
having  neither  money  nor  credit,  offered 
B.  that  if  he  would  order  with  him  cer- 
tain goods  to  be  shipped  as  an  adventure, 
if  any  profit   should  arise  B.  should 
have  half  for  his  trouble.     B.  accord- 
ingly ordered  the  goods  on  their  joint 
account,   and    paid    for   them ;    and   A. 
having  died  without  coming  to  a  settle- 
ment, B.  was  held  entitled  to  recover 
such   payment   in   assumpsit  from   A.'s 
executors.      "  The    construction,"    said 
Lord    Ellenborough,   C.   J.,    "  taken    in 
Waugh  V.  Carver,  applies  in  this  case. 
Quoad  third  persons,  it  was  a  partner- 
ship, for  the  plaintiff^  was  to  share  half 
the  profits;  but  as  between  themselves 
it  was  only  an  agreement  for  so  much, 
as   a    compensation    for    the    plaintiff's 
trouble,  and  for  lending  Robertson  (the 
deceased)  his  cp'dit."      See   Bolton  v. 
Puller,  1  B.  &  P.  546;  [and  Rawlinson 
v.  Clarke,  15  Mee.  &  VV.  292,  where  a 
surgeon  and  apothecary  sold    the  good 

Vol.  I.— 53 


will  of  his  business  to  another,  under  an 
arrangement  by  which  the  seller  was  to 
continue  to  reside  on  the  business  pre- 
mises, and  to  assist  the  buyer  for  a  year, 
in  consideration  of  which  he  was  to  be 
paid  a  moiety  of  the  clear  profits  of  the 
concern  for  that  year  at  the  expiration 
thereof:  that  arrangement  was  holden 
by  the  Court  of  Exchequer  Chamber  not 
to  constitute  a  partnership  between  the 
buyer  and  seller,  so  as  to  prevent  the 
latter  from  suing  the  former,  who  had 
received  the  money  from  the  patients 
during  the  year,  for  the  moiety  of  the 
profits.  But  it  seems  that,  as  to  third 
persons,  such  an  arrangement  would 
make  the  seller  liable  as  a  partner. 
Barry  v.  Nesham,  3  C.  B.  641.] 

Upon  the  whole,  the  cases  justify  us 
in  concluding,  that  whenever  it  appears 
that  the  agreement  was  intended  by  the 
parties  themselves  as  one  of  agency  or 
service,  but  the  agent  or  servant  is  to  be 
remunerated  by  a  portion  of  the  profits, 
then  the  contract  would   be  considered 
as  between  themselves   one  of  agency 
(see  Geddes  v.  Wallace,  2  Bligh,  270; 
R.  v.  Hartley,  Russ.  &  R.  139;)  but,  as 
between  them  and  third  persons,  one  of 
partnership.     See  Smith  v.  Watson,  2 
B.  &.  C.  407;  Exparte  Rowlandson,  1 
Rose,  91;    Green   v.   Beaslev,  2  Bing. 
N.  C.  110;  Exparte  Langdafe,  18  Ves. 
300.     But  that  if  the  agent  or  servant 
is  to  be  remunerated,  not  by  a  portion 
of  the  profits,  but,  as  in  Dry  v.  Boswell, 
Dixon  V.  Cooper,  and  Wilkinson  v.  Fra- 
sier,   by  part  of  a   gross  fund   or  stock 
which  is  not  altogether  composed  of  the 
profits,   the    contract,  even  as  against 
third  persons,  will   bo  one  of  agency, 
although  that  fund  or  stock  may  include 
the  profits,  so  that  its  value,  *and  r^-A'^-i 
the  quantum  of  the  agent's  re-  '-  '      -' 
ward,    will    necessarily  fluctuate    with 
their  fluctuation.    There  is  a  third  case, 
that,  viz.,  in  which  the  agent  or  servant 
is  not  to  receive  a  part  of  the  profits  in 
specie,  but  a  sum  of  money  calculated 
in  proportion  to  a  given  quantum  of  the 
profits.     In  such  a  case.  Lord  Eldon  has 
expressed  his  opinion,  that  the  agent  so 
remunerated   would  not    be  a    partner, 
even  as  to  third  persons.     "  It  is  clearly 
settled,"  said  his  Lordship,  "  in  Exparte 
Hamper,  17  Ves.  112,  though  I  regret 
it,  that  if  a  man  stipulates  that  he  shall 
have  as  the   reward  of  his  labour,  not  a 
specific  interest  in  the  business,  but  a 
given  sum  of  money,  even  in  proportion 
to  a  given  quantum  of  the  profits,  that 


SMITHS     LEADING     CASES. 


will  not  make  him  a  partner;  but  if  he 
agrees  for  a  part  of  the  profits  as  such, 
{jiving  him  a  right  to  an  account,  though 
having  no  property  in  the  capital,  he  is 
as  to  third  persons  a  partner."  In  an- 
other part  of  the  same  case  he  says — 
"The  cases  have  gone  to  this  nicety, 
upon  a  distinction  so  thin  that  I  cannot 
state  it  as  established  upon  due  conside- 
ration, that  if  a  trader  agree  to  pay  an- 
other person,  for  his  labour  in  the  con- 
cern, a  sum  of  money,  even  in  propor- 
tion to  the  profits,  equal  to  a  certain 
share,  that  will  not  make  him  a  part- 
ner. But  if  he  has  a  specific  inte- 
rest in  the  profits  themselves  he  is  a 
partner."  17  Ves.  404.  See  Ex- 
parte  Watson,  19  Ves.  461.  [The  cri- 
terion proposed  by  De  Grev,  C.  J.,  in 
Grace  v.  Smith,  2  VV.  Bl.  998,  "to  in- 
quire whetlier  Smith  agreed  to  share  the 
profits  of  the  trade  with  Robinson,  or 
whetlier  he  only  relied  on  those  profits 
as  a  fund  of  payment;  a  distinction  not 
more  nice  th;in  usually  occurs  in  ques- 
tions of  trade  and  usury,"  was  cited  as 
correct  by  Tindal,  C.  J.,  in  delivering 
the  judgment  of  the  Court  in  Potl  v. 
Eyton,  3  C.  B.  '62.  In  Pott  v.  Eyton,  A., 
a  part  owner  of  a  mine,  set  up  a  tally- 
shop  for  the  supply  of  articles  to  the 
miners,  his  own  name  being  over  the 
door  and  in  the  excise  licenses;  and  he 
arranged  with  B.  to  supply  the  goods 
and  conduct  the  business,  on  the  terms 
that  B.  should  allow  A.  five  per  cent,  on 
the  amount  of  sales  to  the  miners,  and 
retain  the  rest  for  himself.  That  was 
found  by  the  jury,  and  afterwards  held 
by  the  Court  of  Common  Pleas,  not  to 
constitute  an  actual  partnership;  and 
Tindal,  C.  J.,  in  delivering  judgment,  re- 
ferred to  the  cases  already  mentioned, 
and  after  citing  the  dictum  of  Lord  El- 
don,  in  Ex  parte  Watson,  that  "one  who 
receives  a  salary  not  charged  upon  pro- 
fits— according  to  a  known,  though  nice 
distinction — is  not  by  that  a  partner," 
proceeded  to  say,  that  it  makes  no  differ- 
ence "whether  the  money  is  received 
by  way  of  interest  or  money  lent,  or 
wages,  or  salary  as  agent,"  or  commis- 
sion on  goods  sold,  that  the  payment  of 
the  five  per  cent,  to  A.  was  "in  the  na- 
ture of  commission  on  certain  sales  sup- 
posed to  be  effected  through  his  influ- 
ence over  his  workmen,  and  was  not 
sufficient  to  render  him,  as  a  matter  of 
legal  inference,  liable  as  a  partner;  and 
in  so  far  as  it  was  a  question  of  fact,  it 
was  disposed  of  by  the  jury."  See  Barrv 


V.  Nesham,  3  C.  B.  641,  for  a  case  where 
a  share  of  the  profits  was  stipulated  for.] 

In  Withington  v.  Herring,  3  M.  &  P. 
30,  some  of  the  judges  of  the  Common 
Pleas  seem  to  have  tiiought  that  a  bill 
drawn  on  11.  and  Co.,  by  a  person  who 
acted  as  their  agent  abroad  in  a  concern 
in  which  he  was  to  receive  lOOOZ.  per 
annum  salary,  and  one-fifth  share  of  the 
profits,  could  not  be  considered  as  a  bill 
drawn  by  a  partner.  The  point,  how- 
ever, was  not  decided,  as  it  appeared 
clear  that  he  had  authority  to  draw  the 
bill,  even  assuming  him  to  be  but  an 
agent.  [It  may  be  added,  that  the  mere 
circumstance  that  a  man  has  an  option 
to  become  a  partner  and  to  receive  a 
share  of  the  profits,  even  from  a  past 
time,  has  been  holden  insufficient  to  con- 
stitute him  a  partner  before  he  has  exer- 
cised that  option,  and  thereby  become 
entitled  to  an  account  of  the  profits, 
Gabriel  v.  Evill,  9  Mee.  &  W.  297,  at 
N.  P.  Car.  &  M.  3.58;  see  Ex  parte  Tur- 
quand,  2  M.  D.  &  D.  340,  Wilson  v. 
Whitehead,  10  Mee.  &  W.  503.] 

With  respect  to  nominal  partnership : 
— that  takes  place  where  a  person,  hav- 
ing no  real  interest  in  the  concern,  al- 
lows his  name  to  be  held  out  to  the 
world  as  that  of  a  partner,  in  which  case 
the  law  imposes  on  him  the  responsibi- 
lity of  one  to  persons  who  have  had  deal- 
ings with  the  firm  of  which  he  has  held 
himself  out  as  a  member.  [See  the 
judgment  of  the  Lord  Chief  Justice  in 
the  principal  case;  and  see  Guidon  v. 
Robson,  2  Camp.  302.)  It  has,  as  we 
have  seen,  been  laid  down  in  Young  v. 
Axtell,  cited  in  the  text,  that  it  makes 
no  difference  in  such  a  person's  liability 
that  the  party  seeking  to  charge  him  did 
not  know  at  the  time  when  ho  gave 
credit  to  the  firm  that  he  had  so  held 
himself  out.  But  this  position  appears 
very  questionable  ;  for  the  rule  which 
imposes  on  a  nominal  pnrtner  the  re- 
sponsibilities of  a  real  one  is  framed  in 
order  to  prevent  those  persons  from  be- 
ing defrauded  or  deceived,  who  may  deal 
with  the  firm  of  v\hich  he  holds  himself 
out  as  a  member,  on  the  faith  of  his  ap- 
parent responsibility.  But  where  the 
person  dealing  with  the  firm  has  never 
heard  of  him  as  a  component  part  of  it, 
that  reason  no  longer  applies,  and  there 
is  not  wanting  authority  opposed  to  such 
an  extension  of  the  rule  respecting  a 
nominal  partner's  liability.  "If  it  could 
be  proved,"  says  Parke,  J.,  "  that  the 
defendant  held  himself  out — not  to  the 


W  A  U  G  H    V.     CARVER. 


835 


world,  for  that  is  a  loose  expression — 
but  to  the  plaintiff  himself,  or  under 
such  circumstances  of  publicity  as  to 
satisfy  a  jury  that  the  plaintiff  kiieio  of 
it,  and  believed  him  to  be  a  partner,  he 
would  be  liable."  Dickenson  v.  Valpy, 
10  B.  &,  C.  140.  So  too  in  Shott  v. 
Slreatfield  and  another,  1  M.  &.  Rob,  9, 
where  the  question  was,  whether  Green 
was  liable  jointly  with  Streatfield,  a 
witness  proved  that  he  had  been  told  in 
Green's  presence  that  Green  had  be- 
come a  partner.  He  was  then  asked 
whether  he  had  repeated  the  informa- 
tion, on  which  Campbell  objected  that 
this  was  not  evidence,  unless  it  were 
shown  that  the  defendants,  or  one  of 
them,  were  present  when  it  was  re- 
peated; sed  per  Lord  Tenterden,  C.  J., 
*' I  think  it  is;  because  otherwise  it  will 
be  said  jiresently,  that  what  was  said 
was  confined  to  the  witness,  and  that  the 
plaintiff  could  not  have  acted  on  it."  In 
Alderson  v.  Popes,  1  Camp.  404,  n.,  it 
was  held,  that  a  man  could  not  be 
charged  as  a  partner  by  one  who,  when 
he  contracted,  had  notice  that  he  was 
but  nominally  so.  The  reason  of  this 
must  have  been,  because  he  could  not 
have  been  deceived,  or  induced  to  deal 
with  the  firm,  by  any  reliance  on  the 
nominal  partner's  apparent  responsibi- 
lity. And  the  same  reason  precisely 
r*an-i  *applies,  whether  the  false  im- 
'■     ""'  -^  pression  on  the  customer's  mind 


have  been  put  an  end  to  by  a  notice,  or 
whether,  in  consequence  of  his  ignorance 
that  the  nominal  partner's  name  has  been 
used,  no  false  impression  ever  existed  on 
his  mind  at  all.  (See  Carter  v.  VVhal- 
ley,  1  B.  &  Adol.  11.  [Ford  v.  Whit- 
march,  Exch.  Mich.  1841,  1  Hurls.  & 
Walm.  53 ;  Pott  v.  Eyton,  1  C.  B.  32.]) 
However,  in  order  to  fix  a  person  with 
this  description  of  liability,  no  particular 
mode  of  holding  himself  out  is  requisite. 
If  he  do  acts,  no  matter  of  what  kind, 
sufficient  to  induce  others  to  believe  him 
a  partner,  he  will  be  liable  as  such.  See 
Spencer  v.  Billing,  3  Camp.  310;  Par- 
ker V.  Barker,  1  "B.  &  B.  9 ;  3  Moore, 
226.  But  a  man  who  describesxhimself 
as  a  partner  with  another  in  one  particu- 
lar business  does  not  thereby  hold  him- 
self out  as  such  in  any  other  business 
which  that  other  may  happen  to  profess. 
De  Berkom  v.  Smith,  1  Esp.  29 ;  P».idg- 
way  v.  Philip,  5  Tyrw.  131.  Nor  is  a 
person  liable  as  a  nominal  partner,  be- 
cause others,  without  his  consent,  use 
his  name  as  that  of  a  member  of  their 
firm,  even  although  he  may  have  pre- 
viously belonged  to  it,  provided  he  have 
taken  the  proper  steps  to  notify  his  re- 
tirement. Newsome  v.  Coles,  2  Camp. 
617.  Nor,  as  has  been  already  stated, 
can  a  tnan  be  charged  as  a  member  of  a 
firm  by  one  who  had  express  notice  that 
he  was  but  nominally  so.  Alderson  v. 
Popes,  1  Camp.  404,  in  notis. 


It  results  from  the  principal  case,  and  the  general  course  of  decision,  that 
when  two  or  more  persons  agree  that  each  shall  contribute  capital  or  labour 
for  the  purpose  of  carrying  on  a  trade  or  business,  and  that  the  proceeds  shall 
be  received  on  joint  account,  and  subsequently  apportioned  among  all,  they 
will  be  considered  as  partners  with  respect  to  third  persons,  although  such 
may  not  have  been  their  intention  in  making  the  agreement.  For,  as  under 
those  circumstances,  there  will  be  a  joint  loss,  if  the  returns  of  the  business 
fall  short  of  the  outlay,  and  in  the  opposite  event  a  corresponding  gain,  a 
community  of  profit  and  loss  will  ensue,  and  the  law  will  imply  the  existence 
of  a  partnership.  Felichy  v.  Hamilton,  1  W.  C.  C.  R.  492;  Dobb  v.  Hal- 
scj,  IG  Johnson,  34;  Weldon  v.  Sherburne,  15  id.  409;  Cumpston  v. 
McNair,  1  Wend.  4G2  ;  Musier  v.  Trumpbour,  5  id.  274;  Champion  v.  Bost- 
wick,  18  id.  175;  Cushman  v.  Bailey,  1  Hill,  526;  Brown  v.  Bobbins,  3 
Nov,-  Hampshire,  34  ;  Everett  v.  Chapman,  6  Conn.  347;  Bucknam  v.  Bar- 
num,  15  id.  87  ;  Goddard  v.  Pratt,  16  Pick.  402  ;  Baring  v.  Craft,  9  iMetcalf, 
380;  Scott  V.  Colmcsnil,  7  J.  J.  Marshall,  416;  Purviance  v.  Clintee,  6 
S.  &  B.  261.     And  the  same  result  will  follow,  when  an  apportionment  of 


836  smith's    leading    cases. 

profit  ami  loss  is  necessarily  implied,  allhougli  not  expressly  stipulated.  Ba- 
ker V.  Swann,  5  Shepley,  180;  Holt  v.  Bormedcl,  1  Iredell,  199;  Cox  v. 
Delano,  3  Dcvereux,  89. 

-  It  must  not,  however,  be  understood,  that  the  contribution  of  money,  labour 
or  capital  stock,  towards  the  prosecution  of  a  business,  coupled  with  a  rigtit  to 
a  corresponding  return  from  the  proceeds,  will  necessarily  or  essentially  con- 
stitute a  partnership;  Rice  v.  Austin,  17  Mass.  197;  Gallop  v.  Newman,  7 
Pick.  282  ;  Sack  v.  Rowland,  5  Deuio,  09 ;  although  such  must  inevitably  be 
the  result,  if  the  right  to  a  share  of  the  proceeds  of  the  business,  be  also  an 
interest  in  the  proceeds  themselves,  or  in  the  property  out  of  which  they  issue. 
In  other  words,  stipulating  for  a  compensation  in  proportion  to  the  profits, 
or  even  out  of  the  profits  themselves,  will  not  give  the  rights  or  impose 
the  liabilities  of  a  partner,  unless  the  stipulation  amounts  to  a  jus  ad  rem  or  in 
re,  and  not  merely  to  a  demand  or  chose  in  action.  Loomis  v.  Marshall,  12 
Conn.  69.  The  reason  of  this  distinction  is  deeply  seated  in  the  nature  and 
effect  of  the  contract  of  partnership,  both  as  between  the  partners  themselves 
and  with  regard  to  third  persons.  The  general  rule  of  law  admits  of  no 
preference  as  between  persons  claiming  in  different  rights,  against  the  estate 
of  a  bankrupt  or  insolvent  debtor,  on  the  ground  that  the  property  in  ques- 
tion, has  resulted  from  the  labour  or  sacrifices  made  by  one  claimant,  and 
should  therefore  be  appropriated  to  him,  to  the  exclusion  of  the  others. 
Thus,  when  goods  are  sold  and  delivered  to  an  insolvent  purchaser,  they  may 
be  seized  in  execution  by  an  antecedent  creditor,  and  applied  to  the  dis- 
charge of  his  debt,  without  any  regard  to  the  claim  of  the  vendor  for  the  pur- 
chase money.  But  a  debt  due  for  advances  made  in  money  or  goods,  by  one 
partner  to  another,  in  the  course  of  the  partnership  business,  is  entitled  to  a 
preference,  so  far  as  the  partnership  assets  are  concerned,  over  all  debts  due 
by  the  debtor  partner  individually,  and  must  be  paid  in  full,  before  they  can 
be  taken  into  consideration.  In  other  words,  each  partner  has  a  lien  on  the 
partnership  property  for  the  balance  of  accounts  between  himself  and  his 
co-partners,  which  he  may  enforce  as  against  all  persons  claiming  under 
them,  in  their  individual  capacity.  Pierce  v.  Jackson,  6  Mass.  242  ;  Chris- 
tian V.  Ellis,  1  Grattan,  390  ;  Gibson  v.  Stevens,  7  New  Hampshire,  352; 
Garbett  v.  Veale,  5  Q.  B.  408.  But  this  advantage,  of  having  a  specific  security 
for  the  amount  due  on  a  business  contract,  as  against  the  separate  creditors  of 
the  other  party  to  the  contract,  can  only  exist  where  the  contract  is  one  of 
partnership,  and  is  necessarily  and  essentially  coupled  with  the  disadvantage, 
of  being  personally  liable  for  all  debts  contracted  on  account  of  the  business,  to 
which  the  contract  relates.  Whether,  therefore,  a  partnership  will  be  implied 
by  the  law,  where  it  was  not  contemplated  by  the  parties,  seems  to  depend  on 
whether  each  would  have  been  Entitled  to  a  preference,  as  against  the  sepa- 
rate creditors  of  the  other,  for  the  balance  due  as  between  themselves  ;  for 
whenever  such  a  right  exists,  it  will  be  attended  with  a  corresponding  lia- 
bility, to  all  debts  contracted  on  joint  account,  and  a  partnership  will  neces- 
sarily follow.  These  principles  are  strikingly  illustrated  by  the  case  of 
Denny  v.  Cabot,  6  Metcalf,  92,  where  an  agreement  that  one  party  should 
manufacture  the  materials  furnished  by  the  otlierinto  cloth,  on  the  terms  of 
receiving  a  fixed  compensation,  and  one-third  of  the  net  proceeds  of  tlie 
cloth,  after  deducting  all  expenses,  was  held  not  to  give  either  any  spe- 
cific lien  on  the  stock  or  profits  in  the  hands  of  the  other,  and  consequently 


WAUGH    V.     CARVER.  837 

not  to  render  them  partners,  either  as  between  themselves,  or  in  their  relations 
with  third  persons.  If,  said  Wilde,  J.,  in  delivering  the  opinion  of  the  court, 
''  the  defendant  had  stipulated  for  a  share  in  the  profits,  (whether  gross  or 
net  profits,)  so  as  to  entitle  him  to  an  account,  and  to  give  him  a  specific 
lien,  or  a  preference  in  payment  over  other  creditors,  and  giving  him  the  full 
benefit  of  the  profits  of  the  business,  without  any  corresponding  risk  in  case 
of  loss;  justice  to  the  other  creditors  would  seem  to  require  that  he  should 
be  holden  to  be  liable  to  third  persons,  as  a  partner.  But  where  a  party  is 
to  receive  a  compensation  for  his  labour,  in  proportion  to  the  profits  of  the 
business,  without  having  any  specific  lien  upon  such  profits,  to  the  exclusion 
of  other  creditors,  there  seems  to  be  no  reason  for  holding  him  liable  as  a 
partner,  even  to  third  persons."  In  other  words,  as  the  agreement  did 
not  put  the  defendant  in  a  better  position  than  that  held  by  the  rest 
of  the  world,  and  merely  gave  him  a  right  of  personal  recourse,  without 
any  specific  lien  or  preference,  as  against  creditors,  whose  debts  were 
not  contracted  for  the  purposes  of  the  business  in  question,  there  was 
no  reason  for  making  him  responsible  for  those  which  were.  In  sup- 
port of  this  conclusion,  the  court  relied  on  the  prior  cases  of  Turner 
V.  Bissell,  14  Pick.  192,  and  Loomis  v.  Marshall,  12  Conn.  69,  where  it 
had  been  held  that  an  agreement  to  furnish  wool,  for  the  purpose  of  being 
worked  up  into  cloth,  at  a  rate  of  compensation  which  was  wholly  dependent 
on  the  profits  of  the  business  of  the  manufacturer,  gave  a  mere  right  of  per- 
sonal recourse  against  him,  and  did  not  constitute  a  partnership.  Similar 
decisions  were  made  in  Heckert  v.  Fegely,  6  W.  &  S.  139,  and  Clement  v. 
Haddock,  13  New  Hampshire,  185.  It  results  from  these  cases,  and  from 
what  has  been  said  above,  that  parties  may  make  any  stipulation  which  they 
think  fit,  as  to  the  mode  or  ratio  in  which  either  shall  be  compensated  for 
services  rendered,  or  advances  made,  to  or  on  account  of  the  other, 
without  acquiring  the  character  of  partners,  so  long  as  they  neither  hold 
themselves  out  to  the  world  as  such,  nor  stipulate  expressly  or  by  implica- 
tion, for  any  specific  interest  in  the  property  or  business  for  which  the 
advances  are  made,  or  in  which  they  are  invested.  But  if  they  go 
beyond  this,  and  acquire  a  right  of  property,  in  addition  to  aright  of  action, 
a  partnership  will  arise  by  legal  construction,  and  without  regard  to  inten- 
tion. Thus  it  was  held  in  Tobias  v.  Blin,  21  Vermont,  544,  that  when  the 
effect  of  the  contract  is  to  create  a  debt,  without  conferring  an  interest, 
there  will  bo  no  partnership.  The  law  was  held  the  same  way  in  Dwincl  v. 
Stone,  30  Maine,  384.  "  There  may,"  said  Shepley,  C.  J.,  in  delivering  the 
opinion  of  the  court,  "  be  a  partnership  embracing  a  capital  invested  in  the 
business,  and  also  the  profit  and  loss  arising  out  of  it.  And  there  may  be  a 
partnership  embracing  only  the  profit  and  loss.  There  may  be  also  busi- 
ness transactions,  from  which  the  persons  concerned  may  receive  profits,  and 
be  subjected  to  losses;  and  yet  there  may  be  no  partnership.  The  mere 
fact  of  a  participation  in  profit  and  loss,  does  not  necessarily  constitute  a 
partnership.  Many  of  the  elements  constituting  one  may  exist,  while  others 
equally  essential  do  not." 

The  doctrine,  that  a  contract  which  merely  creates  a  debt,  without  con- 
ferring an  interest,  will  not  constitute  a  partnership,  has  been  frequently 
applied  in  the  case  of  agents  employed  in  -commercial  or  other  busi- 
ness, under  an  agreement,  for  a  compensation  in  proportion   to  the  pro- 


838  smith's   leading  cases. 

fits  made  by  tlacir  employers,  and  it  is  thoroughly  well  settled,  that  such  an 
agent  will  not  have  the  character  of  a  partner,  either  in  his  relations  with 
those  by  whom  he  is  employed,  or  with  third  persons ;  Miller  v.  Barllett, 
15  S.  &  R.  137;  Dunham  v.  Rogers,  1  Barr,  255;  Ross  v.  Tucker,  2 
Hall,  175 ;  Champion  v.  Bostwick,  18  Wend.  175 ;  Norraent  v.  Hull,  1 
Humphreys,  320.  This  has  long  been  held,  when  the  compensation  is  to 
be  in  the  ratio  or  proportion  of  the  profits,  and  is  now  settled  even  when  it 
is  payable  out  of  the  profits;  if  it  appear  that  the  intention  was  to  give  a 
mere  right  of  action,  and  not  a  specific  lien  on  the  proceeds  of  the  business ; 
Muzzy  V.  Whitney,  10  Johnson,  226;  Vanderburgh  v.  Hall,  18  Wendell, 
70;  Burckle  v.  Eckhart,  1  Denio,  343  ;  3  Comstock,  132;  White  v.  Brad- 
ley, 10  Metcalf,  302 ;  Shropshire  v.  Shepherd,  3  Alabama,  733 ;  Hodges  v. 
Dawes,  6  id.  215.  When,  however,  a  party  who  makes  advances  of  money 
or  goods  to  another,  for  the  prosecution  of  a  particular  business,  does  not 
rely  solely  on  the  personal  responsibility  of  the  latter  for  reimbursement,  and 
looks  to  the  creation  of  an  interest  in  the  resulting  property  or  its  proceeds, 
the  transaction  will  be  regarded  as  a  partnership;  Goddard  v.  Pratt,  16 
Pick.  422;  Beming  V.  Craft,  9  Metcalf,  380;  Champion  v.  Bostwick,  18 
Wend.  175 ;  Everett  v.  Chapman,  6  Conn.  347.  Thus,  in  Loomis  v.  Mar- 
shall, the  decision  in  Everett  v.  Chapman,  was  put  on  the  ground,  that 
although  the  business  was  to  be  conducted,  and  the  sales  made  by  the  part- 
ners severally,  each  must  have  contemplated  a  specific  lien  on  the  proceeds 
in  the  hands  of  the  others,  as  the  only  means  of  securing  an  equal  apportion- 
ment of  the  profit  and  loss  among  all. 

There  are  some  cases,  however,  in  which  the  courts  have  taken  no  notice,  of 
the  distinction  between  stipulating  for  a  compensation  in  the  ratio  of  profits,  or 
out  of  profits,  and  for  a  specific  interest  in  the  profits  themselves,  and  have  pro- 
ceeded on  the  more  arbitrary  and  less  intelligible  rule,  that  every  agreement 
under  which  different  persons  are  to  concur  in  the  prosecution  of  a  business, 
on  the  ternis  of  receiving  reimbursement  out  of  and  in  proportion  to  the  pro- 
fits, and  depending  upon  the  contingency,  whether  profits  are  made  or  not, 
will  constitute  a  partnership  with  respect  to  strangers,  without  regard  to  the 
intention  of  the  parties ;  Oakley  v.  Aspinwall,  2  Sandford's  S.  C  R.  7 ; 
Taylor  V.  Terene,  5  Har.  &  J.  505;  Solomon  v.  Solomon,  2  Kelly,  18; 
Everett  v.  Coe,  5  Denio,  180;  Barry  v.  Nesham,  3  C.  B.  640.  Thus,  in 
Everett  v.  Coe,  the  question  whether  the  defendant,  who  had  agreed  to  fur- 
nish a  manufacturing  firm  with  the  funds  for  carrying  on  their  business, 
was  to  be  regarded  as  a  partner,  was  held  to  depend  on  whether  a  stipula- 
tion, that  he  should  have  a  <<  profit  of  one  percent  a-yard  on  all  goods 
manufactured  in  the  mill,  in  addition  to  the  reimbursement  of  his  advances," 
entitled  him  to  this  per  centage  absolutely,  only  in  case  profits  were  actually 
made.  It  was  said,  that  if  the  stipulation  bore  the  latter  construction,  it 
would  subtract  from  the  fund,  on  which  the  creditors  of  the  firm  had  to 
rely  for  the  payment  of  their  debts,  and  the  defendant  would  be  clearly 
liable  to  them  as  a  partner.  It  is  not  easy  to  see  the  force  of  this  reasoning, 
or  to  understand  why  a  payment  to  be  made  on  a  contingency,  and  only  in 
case  a  business  prove  profitable,  should  be  more  disadvantageous  to  other 
creditors,  than  if  it  were  payable  absolutely.  But,  no  doubt  can  be  enter- 
tained as  to  the  propriety  of  the  decision,  if  the  defendant  meant  to  stipu- 


WAUGH    V.    CARVER.  839 

late  for  a  specific  interest  in  the  profits,  and  not  merely  for  a  compensation, 
to  be  measured  by  the  profits. 

"When  the  agreement  between  the  parties  is  such  in  other  respects,  as  to> 
give  rise  to  a  partnership,  its  effect  will  not   be  varied  by  the  shortness  of 
the  period  to  which  it  has  reference,  nor  by  its  limitation  to  the  purposes  of  a 
single  transaction  ;  Benson  v.  M'Bee,  2  M'Mullin,  91 ;  Musier  v.  Tramp- 
bour,  5  Wend.  275.     Thus  in  Sims  v.  Willing,  8  S.  &  R.  103,  the  defendant 
purchased  flour  and  shipped  it  to  Lisbon  on  his  oM'n  account,  using  the  name 
of  H.  T.  Sampayo,  a  merchant  residing  in  that  city,  as  a  cover.      The  rest 
of  the  cargo  of  the  vessel  was  composed  of  other  flour,  owned  and  paid  for 
by  Sampayo.     So  far  there  was  nothing  to  give  rise  to  a  joint  ownership  in 
the  flour,  or  to  constitute  a  partnership.     But  as  the  flour  was  to  be  sold  by 
Sampayo  on  its  arrival  at  Lisbon,  and  the  defendant's  share  of  the  proceeds 
remaining  after  deducting   the  charges  and  expenses,  remitted  to  London, 
the  court  were  of  opinion,  that  he  must  have  intended  a  joint  ownership,  and 
consequent  community  of  profit  and  loss  for  his  own  protection,  and  that 
be  was  consequently  liable  as  a  partner  to  the  owners  of  the  vessel,  for  the 
general  average,  which  had  attached  to  the  cargo  on  the  voyage  out.      This 
conclusion  was  fortified  by  the  fact,  that  as  there  were  no  marks  or  brands 
b}'  which  the  defendant's  portion  of  the  cargo  could  be  distinguished  from 
that  belonging  to  Sampayo,  the  understanding  must  necessarily  have  been, 
that  all  expenses  incurred  in   transporting  the  cargo  to  Lisbon,  and  selling 
it  there,  should  be  charged  equally  and  jointly  on  the  whole,  and  not  appor- 
tioned on  the  respective  shares  of  the  parties  concerned.     In  this    case, 
however,  as  in  every  other  of  a  similar  nature,  the  partnership  was  limited 
to  the  purpose  for  which  it  was   created,  and  would  not  have  exposed  the 
parties  to  any  liability,  not  incurred  in  the  necessary  and  usual  prosecution  of 
the  voyage.     Thus  in  Post  v.  Kimberly,  9  Johnson,  488,  where  the  cir- 
cumstances were  nearly  similar  to  those  in  Sims  v.  Willing,  the  court  held, 
that  although  the  shipping  of  a  cai'go  belonging  to  different  persons,  for  sale 
on  their  joint  account,  might  create  a  partnership  for  the  purposes  of  the 
voyage,  it  would  not  go  further,  or  render  them  partners  in  the  return  cargo, 
in  which  the  proceeds  of  the  sale  were  invested.     The  same  point  was  deter- 
mined in  Jackson  v.  Ilobinson,  3  Mason,  138,  and  it  was  said,  that  the  ship- 
ment of  goods  on  board  a  vessel,  consigned  to  the  master  for  a  sale  and 
returns,  does  not  render  the  shippers  liable  as  partners,  even  though  they 
are  tenants  in  common,  both  of  the  goods  and  vessel.      Similar  decisions  were 
made,  and  the  same  language  held  in  Thorndike  v.  De  Wolff,  G  Pickerinf, 
1,  and  French  v.  Price,  24  Pickering,  10.      But  the  question  actually  before 
the  court  in   these  cases,  was  as  to  the  existence  of  a  partnership  in  the 
goods,  or  their  proceeds,  and  not,  as  in  Sims  v.  Willing,  whether  the  owners 
of  the  cargo  were  jointly  liable  for  the  expenses  of  the  voyage. 

A  stipulation,  or  understanding,  that  no  partnership  shall  exist,  will  be 
binding  as  between  the  parties  themselves,  whatever  may  be  the  character 
of  the  agreement  in  other  respects ;  Gill  v.  Kuhn,  6  Sergeant  &  llawle, 
338;  Jordan  v.  Wilkins,  3  Washington  C.  C.  Reports,  110;  and  even  on 
third  persons  who  know  of  its  existence  ;  Bailey  v.  Clark,  6  Pickering,  372. 
And  on  the  other  hand,  nothing  is  better  settled  than  that  persons,  who 
hold  themselves  out  to  the  world  as  partners,  will  be  liable  as  such  to  third 
persons,  whatever  may  be  the  actual  relation  as  between  themselves;  Mars- 


840  smith's  LEADING'  CASES. 

ton  V.  IIallenback>-  2  Zabriskic,  373 ;  Buckingham  v.  Burgess,  3  McLean, 
364 ;  Stearns  v.  Haven,  14  Yermont,  540.  But  the  rights  and  liabilities 
incident  to  the  relation  of  partnership,  do  not  take  eifect  until  the  partnership 
has  been  actually  created,  whatever  may  be  the  date  of  the  agreement  to 
create  it.  Thus  money  advanced  by  the  plaintiff'  to  the  defendant,  for  the 
jiurpose  of  being  employed  on  their  joint  account,  in  a  partnership  which 
does  not  go  into  operation,  may  be  recovered  back  in  assumpsit,  although 
the  articles  of  co-partnership  were  signed  before  the  payment.  Murray  v. 
llichards,  1  Wend.  63.  And  as  this  rule  holds  good  with  reference  to  third 
persons,  as  well  as  between  the  partners  themselves,  no  liability  will  attach 
to  the  firm  for  advances  made  to  one  of  the  partners,  with  a  view  to  enabling 
him  to  contribute  his  quota  to  the  partnership  stock;  Post  v.  Kiniberly,  9 
Johnson,  188;  Heckert  v.  Fegely,  6  Watts  &  Sergeant,  139;  Saville  v. 
EobertsGti,  4  Term,  720. 


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